UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the fiscal year ended July 31, 1996
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: 33-53379
33-53379-01
Ferrellgas, L.P.
Ferrellgas Finance Corp.
(Exact name of registrants as specified in their charters)
Delaware 43-1698481
Delaware 43-1677595
(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 registrants (1) have 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
registrants were required to file such reports), and (2) have been subject to
such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
At September 16, 1996, Ferrellgas Finance Corp. had 1,000 shares of $1.00 par
value common stock outstanding.
Documents Incorporated by Reference: None
<PAGE>
FERRELLGAS, L.P.
FERRELLGAS FINANCE CORP.
1996 FORM 10-K ANNUAL REPORT
Table of Contents
Page
PART I
ITEM 1. BUSINESS.................................................... 1
ITEM 2. PROPERTIES.................................................. 8
ITEM 3. LEGAL PROCEEDINGS........................................... 9
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS......... 9
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S UNITS AND
RELATED UNITHOLDER MATTERS.................................. 9
ITEM 6. SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA............ 10
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS............... 11
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA................. 16
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE......................... 16
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANTS......... 16
ITEM 11. EXECUTIVE COMPENSATION...................................... 19
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT.............................................. 21
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.............. 22
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND
REPORTS ON FORM 8-K......................................... 23
<PAGE>
PART I
ITEM 1. BUSINESS.
Business of Ferrellgas Partners, L.P.
Ferrellgas Partners, L.P. (the "Master Limited Partnership" or the "MLP"),
a publicly traded Delaware limited partnership, was formed April 19, 1994. The
MLP's activities are conducted through its subsidiary Ferrellgas, L.P. (the
"Operating Partnership" or the "OLP"). The MLP, with a 99% limited partner
interest, is the sole limited partner of the Operating Partnership. The MLP and
the Operating Partnership are together referred to herein as the "Partnership".
The Operating Partnership accounts for nearly all of the MLP's consolidated
assets, sales and operating earnings. The MLP's consolidated net earnings also
reflects interest expense related to $160 million of 9 3/8% Senior Secured Notes
issued by the MLP in April 1996.
Business of Ferrellgas, L.P.
The Operating Partnership, a Delaware limited partnership, was formed April
22, 1994, to acquire, own and operate the propane business and assets of
Ferrellgas, Inc. (the "Company", "Ferrellgas", and "General Partner"). The
Company has retained a 1% general partner interest in the MLP and also holds a
1.0101% general partner interest in the Operating Partnership, representing a 2%
general partner interest in the Partnership on a combined basis. As General
Partner of the Partnership, the Company performs all management functions
required for the Partnership.
General
The Partnership is engaged in the sale, distribution, marketing and trading
of propane and other natural gas liquids. The discussion that follows focuses on
the Partnership's retail operations and its other operations, which consist
primarily of propane and natural gas liquids trading operations, chemical
feedstocks marketing and wholesale propane marketing, all of which were conveyed
to the Partnership on July 5, 1994. All historical references prior to July 5,
1994 relate to the operations as conducted by the Company.
The General Partner believes that the Partnership is the second largest
retail marketer of propane in the United States (as measured by gallons sold),
serving more than 800,000 residential, industrial/commercial and agricultural
customers in 45 states and the District of Columbia through approximately 523
retail outlets with 283 satellite locations in 38 states (some outlets serve
interstate markets). For the Partnership's fiscal years ended July 31, 1996 and
1995 and the pro forma year ended July 31, 1994, annual retail propane sales
volumes were 650 million, 576 million and 564 million gallons, respectively. The
retail propane business of the Partnership consists principally of transporting
propane purchased through various suppliers to its retail distribution outlets,
then to tanks located on its customers' premises, as well as to portable propane
cylinders.
The General Partner also believes that the Partnership is a leading natural
gas liquids trading company. Annual propane and natural gas liquids trading,
chemical feedstocks and wholesale propane sales volumes were approximately 1.7
billion, 1.5 billion and 1.7 billion gallons during the fiscal years ended July
31, 1996 and 1995 and the pro forma year ended July 31, 1994, respectively.
<PAGE>
Retail Operations
Formation
Ferrell Companies, Inc. ("Ferrell"), the parent of Ferrellgas, was founded
in 1939 as a single retail propane outlet in Atchison, Kansas and was
incorporated in 1954. In 1984, a subsidiary was formed under the name
Ferrellgas, Inc. to operate the retail propane business previously conducted by
Ferrell. Ferrell is primarily owned by James E. Ferrell and his family. The
Company's initial growth largely resulted from small acquisitions in the rural
areas of eastern Kansas, northern and central Missouri, Iowa, Western Illinois,
Southern Minnesota, South Dakota and Texas. In July 1984, the Company acquired
propane operations with annual retail sales volumes of approximately 33 million
gallons and in December 1986, the Company acquired propane operations with
annual retail sales volumes of approximately 395 million gallons. These major
acquisitions and many other smaller acquisitions significantly expanded and
diversified the Company's geographic coverage. In July 1994, the propane
business and assets of the Company were contributed to the Partnership.
Business Strategy
The Partnership's business strategy is to continue Ferrellgas' historical
focus on residential and commercial retail propane operations and to expand its
operations through strategic acquisitions of smaller retail propane operations
located throughout the United States and through increased competitiveness and
efforts to acquire new customers. The propane industry is relatively fragmented,
with the ten largest retail distributors possessing approximately 33% of the
total retail propane market and much of the industry consisting of over 5,000
local or regional companies. The Partnership's retail operations account for
approximately 8% of the retail propane purchased in the United States, as
measured by gallons sold. Since 1986, and as of July 31, 1996, Ferrellgas has
acquired 100 smaller independent propane retailers which Ferrellgas believes
were not individually material, except for the acquisition of Skelgas Propane,
Inc. ("Skelgas") in May 1996 and Vision Energy Resources, Inc. ("Vision") in
November 1994. For the fiscal years ended July 31, 1996 to 1992, the Partnership
or its Predecessor invested approximately $108.8 million, $70.1 million, $3.4
million, $0.9 million and, $10.1 million, respectively, to acquire operations
with annual retail sales of approximately 111.8 million, 70.0 million, 2.9
million, 0.7 million, and 8.6 million gallons of propane, respectively.
The Partnership intends to concentrate its acquisition activities in
geographical areas in close proximity to the Company's existing operations and
to acquire propane retailers that can be efficiently combined with such existing
operations to provide an attractive return on investment after taking into
account the efficiencies which may result from such combination. However, the
Partnership will also pursue acquisitions which broaden its geographic coverage.
The Partnership's goal in any acquisition will be to improve the operations and
profitability of these smaller companies by integrating them into the
Partnership's established supply network. The General Partner regularly
evaluates a number of propane distribution companies which may be candidates for
acquisition. The General Partner believes that there are numerous local retail
propane distribution companies that are possible candidates for acquisition by
the Partnership and that the Partnership's geographic diversity of operations
helps to create many attractive acquisition opportunities. The Partnership
intends to fund acquisitions through internal cash flow, external borrowings or
the issuance of additional Common Units. The Partnership's ability to accomplish
these goals will be subject to the continued availability of acquisition
candidates at prices attractive to the Partnership. There is no assurance the
Partnership will be successful in sustaining the recent level of acquisitions or
that any acquisitions that are made will prove beneficial to the Partnership.
In addition to growth through acquisitions, the General Partner
believes that the Partnership may also achieve growth within its existing
propane operations. As a result of its experience in responding to competition
and in implementing more efficient operating standards, the General Partner
believes that it has positioned the Partnership to be more successful in direct
competition for customers. The Partnership currently has marketing programs
underway which focus specific resources toward this effort.
2
<PAGE>
Marketing
Natural gas liquids are derived from petroleum products and sold in
compressed or liquefied form. Propane, the predominant type of natural gas
liquid, is typically extracted from natural gas or separated during crude oil
refining. Although propane is gaseous at normal pressures, it is compressed into
liquid form at relatively low pressures for storage and transportation. Propane
is a clean-burning energy source, recognized for its transportability and ease
of use relative to alternative forms of stand alone energy sources.
In the residential and commercial markets, propane is primarily used for
space heating, water heating and cooking. In the agricultural market propane is
primarily used for crop drying, space heating, irrigation and weed control. In
addition, propane is used for certain industrial applications, including use as
engine fuel, which is burned in internal combustion engines that power vehicles
and forklifts and as a heating or energy source in manufacturing and drying
processes.
The retail propane marketing business generally involves large numbers of
small volume deliveries averaging approximately 200 gallons each. The market
areas are generally rural but also include suburban areas where natural gas
service is not available.
The Partnership utilizes marketing programs targeting both new and existing
customers emphasizing its superior ability to deliver propane to customers as
well as its training and safety programs. The Partnership sells propane
primarily to four specific markets: residential, industrial/commercial,
agricultural and other (principally to other propane retailers and as engine
fuel.) During the fiscal year ended July 31, 1996, sales to residential
customers accounted for 60% of retail gross profit, sales to industrial and
other commercial customers accounted for 28% of retail gross profit, sales to
agricultural and other customers accounted for 12% of retail gross profit.
Residential sales have a greater profit margin, more stable customer base and
tend to be less sensitive to price changes than the other markets served by the
Partnership. No single customer of the Partnership accounts for 10% or more of
the Partnership's consolidated revenues.
Profits in the retail propane business are primarily based on margins, the
cents-per-gallon difference between the purchase price and the sales price of
propane. The Partnership generally purchases propane in the contract and spot
markets, primarily from natural gas processing plants and major oil companies,
on a short-term basis, therefore, its supply costs fluctuate with market price
fluctuations. Should wholesale propane prices decline in the future, the
Partnership's margins on its retail propane distribution business should
increase in the short-term because retail prices tend to change less rapidly
than wholesale prices. Should the wholesale cost of propane increase, for
similar reasons retail margins and profitability would likely be reduced at
least for the short-term until retail prices can be increased. Retail propane
customers typically lease their storage tanks from their propane distributors.
Approximately 70% of the Partnership's customers lease their tank from the
Partnership. The lease terms and, in some states, certain fire safety
regulations, restrict the filling of a leased tank solely to the propane
supplier that owns the tank. The cost and inconvenience of switching tanks
minimizes a customers tendency to switch among suppliers of propane on the basis
of minor variations in price.
The retail market for propane is seasonal because it is used primarily for
heating in residential and commercial buildings. Consequently, sales and
operating profits are concentrated in the second and third fiscal quarters
(November through April). To the extent necessary, the Partnership will reserve
cash inflows from the second and third quarters for distribution to holders of
Common Units in the first and fourth fiscal quarters. In addition, sales volume
traditionally fluctuates from year to year in response to variations in weather,
prices and other factors, although the Partnership believes that the broad
geographic distribution of its operations helps to minimize exposure to regional
weather or economic patterns. Long-term, historic weather data from the National
Climatic Data Center indicate that the average annual temperatures have remained
relatively constant over the last 30 years with fluctuations occurring on a
year-to-year basis only. During times of colder-than-normal winter weather, the
Company has been able to take advantage of its large, efficient distribution
network to help avoid supply disruptions such as those experienced by some of
its competitors, thereby broadening its long-term customer base.
3
<PAGE>
Supply and Distribution
The Partnership purchases propane primarily from major domestic oil
companies. Supplies of propane from these sources have traditionally been
readily available, although no assurance can be given that supplies of propane
will be readily available in the future. As a result of (i) the Partnership's
ability to buy large volumes of propane and (ii) the Partnership's large
distribution system and underground storage capacity, the General Partner
believes that the Partnership is in a position to achieve product cost savings
and avoid shortages during periods of tight supply to an extent not generally
available to other retail propane distributors. The Partnership is not dependent
upon any single supplier or group of suppliers, the loss of which would have a
material adverse effect on the Partnership. For the year ended July 31, 1996, no
supplier at any single delivery point provided more than 10% of the
Partnership's total domestic propane supply. A portion of the Partnership's
propane inventory is purchased under supply contracts which typically have a one
year term and a fluctuating price relating to spot market prices. Certain of the
Partnership's contracts specify certain minimum and maximum amounts of propane
to be purchased thereunder. The Partnership may purchase and store inventories
of propane in order to help insure uninterrupted deliverability during periods
of extreme demand. The Partnership owns three underground storage facilities
with an aggregate capacity of approximately 184 million gallons. Currently,
approximately 111 million gallons of this capacity is leased to third parties.
The remaining space is available for the Partnership's use.
Propane is generally transported from natural gas processing plants and
refineries, pipeline terminals and storage facilities to retail distribution
outlets and wholesale customers by railroad tank cars leased by the Partnership
and highway transport trucks owned or leased by the Partnership. The Partnership
operates a fleet of transport trucks to transport propane from refineries,
natural gas processing plants or pipeline terminals to it's retail distribution
outlets. Common carrier transport trucks may be used during the peak delivery
season in the winter months or to provide service in areas where economic
considerations favor common carrier use. Propane is then transported from the
Partnership's retail distribution outlets to customers by its fleet of 1,435
bulk delivery trucks, which are fitted generally with 2,000 to 3,000 gallon
propane tanks. Propane storage tanks located on the customers' premises are then
filled from the delivery truck. Propane is also delivered to customers in
portable cylinders.
Industry and Competition
Industry
Based upon information contained in the Energy Information Administration's
Annual Energy Review 1995 magazine, propane accounts for approximately 3-4% of
household energy consumption in the United States, an average level which has
remained relatively constant for the past 19 years. It competes primarily with
natural gas, electricity and fuel oil as an energy source principally on the
basis of price, availability and portability. Propane serves as an alternative
to natural gas in rural and suburban areas where natural gas is unavailable or
portability of product is required. Propane is generally more expensive than
natural gas on an equivalent BTU basis in locations served by natural gas,
although propane is often sold in such areas as a standby fuel for use during
peak demands and during interruption in natural gas service. The expansion of
natural gas into traditional propane markets has historically been inhibited by
the capital costs required to expand distribution and pipeline systems. Although
the extension of natural gas pipelines tends to displace propane distribution in
the neighborhoods affected, the Partnership believes that new opportunities for
propane sales arise as more geographically remote neighborhoods are developed.
Propane is generally less expensive to use than electricity for space heating,
water heating and cooking and competes effectively with electricity in those
parts of the country where propane is cheaper than electricity on an equivalent
BTU basis. Although propane is similar to fuel oil in application, market demand
and price, propane and fuel oil have generally developed their own distinct
geographic markets. Because residential furnaces and appliances that burn
propane will not operate on fuel oil, a conversion from one fuel to the other
requires the installation of new equipment. The Partnership's residential retail
propane customers, therefore, will have an incentive to switch to fuel oil only
if fuel oil becomes significantly less expensive than propane. Likewise, the
Partnership may be unable to expand its customer base in areas where fuel oil is
widely used, particularly the Northeast, unless propane becomes significantly
less expensive than fuel oil. Alternatively, many industrial customers who use
propane as a heating fuel have the capacity to switch to other fuels, such as
fuel oil, on the basis of availability or minor variations in price. Propane
generally is becoming increasingly favored over fuel oil and other alternative
sources of fuel as an environmentally preferred energy source.
4
<PAGE>
Competition
In addition to competing with marketers of other fuels, the Partnership
competes with other companies engaged in the retail propane distribution
business. Competition within the propane distribution industry stems from two
types of participants: the larger multi-state marketers, and the smaller, local
independent marketers. Based upon information contained in the National Propane
Gas Association's LP-Gas Market Facts and the June 1996 issue of LP Gas
magazine, the Partnership believes that the ten largest multi-state retail
marketers of propane, including the Partnership, account for approximately 33%
of the total retail sales of propane in the United States. Based upon
information contained in industry publications, the Partnership also believes no
single marketer has a greater than 10% share of the total market in the United
States and that the Partnership is the second largest retail marketer of propane
in the United States, with a market share of approximately 8% as measured by
volume of national retail propane sales.
Most of the Partnership's retail distribution outlets compete with three or
more marketers or distributors. The principal factors influencing competition
among propane marketers are price and service. The Partnership competes with
other retail marketers primarily on the basis of reliability of service and
responsiveness to customer needs, safety and price. Each retail distribution
outlet operates in its own competitive environment because retail marketers
locate in close proximity to customers to lower the cost of providing service.
The typical retail distribution outlet has an effective marketing radius of
approximately 25 miles.
Other Operations
The other operations of the Partnership consist principally of: (1)
trading, (2) chemical feedstocks marketing and (3) wholesale propane marketing.
The Partnership, through its natural gas liquids trading operations and
wholesale marketing, has become one of the largest independent traders of
propane and natural gas liquids in the United States. The Partnership owns no
properties that are material to these operations. These operations may utilize
available space in the Partnership's underground storage facilities in the
furtherance of these businesses. Because the Partnership possesses a large
distribution system, underground storage capacity and the utility to buy large
volumes of propane, the General Partner believes that the Partnership is in a
position to achieve product cost savings and avoid shortages during periods of
tight supply to an extent not generally available to other retail propane
distributions.
Trading
The Partnership's traders are engaged in trading propane and other natural
gas liquids for the Partnership's account and for supplying the Partnership's
retail and wholesale propane operations. The Partnership primarily trades
products purchased from its over 150 suppliers, however, it also conducts
transactions on the New York Mercantile Exchange. Trading activity is conducted
primarily to generate a profit independent of the retail and wholesale
operations, but is also conducted to insure the availability of propane during
periods of short supply. Propane represents over 44% of the Partnership's total
trading volume, with the remainder consisting principally of various other
natural gas liquids. The Partnership attempts to minimize trading risk through
the enforcement of its trading policies, which include total inventory limits
and loss limits, and attempts to minimize credit risk through credit checks and
application of its credit policies. However, there can be no assurance that
historical experience or the existence of such policies will prevent trading
losses in the future. For the Partnership's fiscal years ended July 31, 1996 and
1995 and the pro forma fiscal year ended July 31, 1994 net revenues of $7.3
million, $5.8 million and $6.8 million, respectively, were derived from trading
activities.
5
<PAGE>
Chemical Feedstocks Marketing
The Partnership is also involved in the marketing of refinery and
petrochemical feedstocks. Petroleum by-products are purchased from refineries
and sold to petrochemical plants. The Partnership leases 320 railroad tank cars
to facilitate product delivery. Revenues of $44.4 million, $91.9 million and
$43.0 million were derived from such activities for the Partnership's fiscal
years ended July 31, 1996 and 1995 and the pro forma fiscal year ended July 31,
1994, respectively.
Wholesale Marketing
The Partnership engages in the wholesale distribution of propane to other
retail propane distributors. During the fiscal years ended July 31, 1996 and
1995 and the pro forma year ended July 31, 1994 the Partnership sold 104
million, 96 million and 61 gallons, respectively, of propane to wholesale
customers and had revenues attributable to such sales of $42.6 million, $33.5
million and $22.5 million, respectively.
Employees
The Partnership has no employees and is managed by the General Partner
pursuant to the Partnership Agreement. At July 31, 1996, the General Partner had
3,370 full-time employees and 770 temporary and part-time employees. The number
of temporary and part-time employees is generally higher by approximately
350-500 people during the winter heating season. At July 31, 1996, the General
Partner's full-time employees were employed in the following areas:
Retail Locations 2,817
Transportation and Storage 197
Corporate Offices (Liberty, MO & Houston, TX) 356
----------
Total 3,370
==========
Approximately one percent of the General Partner's employees are
represented by seven local labor unions, which are all affiliated with the
International Brotherhood of Teamsters. The General Partner has not experienced
any significant work stoppages or other labor problems.
The Partnership's supply, trading, chemical feedstocks marketing,
distribution scheduling and product accounting functions are operated primarily
out of the Partnership's offices located in Houston, by a total full-time
corporate staff of 94 people.
Governmental Regulation; Environmental and Safety Matters
From August 1971 until January 1981, the United States Department of Energy
regulated the price and allocation of propane. The Partnership is no longer
subject to any similar regulation.
Propane is not a hazardous substance within the meaning of federal and
state environmental laws. In connection with all acquisitions of retail propane
businesses that involve the purchase of real estate, the Partnership conducts a
due diligence investigation to attempt to determine whether any substance other
than propane has been sold from or stored on any such real estate prior to its
purchase. Such due diligence includes questioning the sellers, obtaining
representations and warranties concerning the sellers' compliance with
environmental laws and visual inspections of the properties, whereby employees
of the General Partner look for evidence of hazardous substances or the
existence of underground storage tanks.
6
<PAGE>
With respect to the transportation of propane by truck, the Partnership is
subject to regulations promulgated under the Federal Motor Carrier Safety Act.
These regulations cover the transportation of hazardous materials and are
administered by the United States Department of Transportation. National Fire
Protection Association Pamphlet No. 58, which establishes a set of rules and
procedures governing the safe handling of propane, or comparable regulations,
have been adopted as the industry standard in a majority of the states in which
the Partnership operates. There are no material environmental claims pending and
the Partnership complies in all material respects with all material governmental
regulations and industry standards applicable to environmental and safety
matters.
Service Marks and Trademarks
The Partnership markets retail propane under the "Ferrellgas" tradename and
uses the tradename "Ferrell North America" for its other operations. In
addition, the Partnership has a trademark on the name "FerrellMeter," its
patented gas leak detection device. The Company contributed all of its rights,
title and interest in such tradenames and trademark in the continental United
States to the Partnership. The General Partner will have an option to purchase
such tradenames and trademark from the Partnership for a nominal value if the
General Partner is removed as general partner of the Partnership other than for
cause. If the General Partner ceases to serve as the general partner of the
Partnership for any other reason, it will have the option to purchase such
tradenames and trademark from the Partnership for fair market value.
Business of Ferrellgas Finance Corp. and Ferrellgas Partners Finance Corp.
Ferrellgas Finance Corp. (the "OLP Finance Corp."), a Delaware corporation,
was formed April 28, 1994, and is a wholly-owned subsidiary of the Operating
Partnership. Ferrellgas Partners Finance Corp. (the "MLP Finance Corp") a
Delaware corporation (together with the OLP Finance Corp., the "Finance Corps.")
was formed on March 28, 1996, and is a wholly-owned subsidiary of the MLP. The
Finance Corps. have nominal assets and do not conduct any operations, but serve
as co-obligors for securities issued by the Operating Partnership and the MLP.
Certain institutional investors that might otherwise be limited in their ability
to invest in securities issued by partnerships by reasons of the legal
investment laws of their states of organization or their charter documents, may
be able to invest in the Operating Partnership's or MLP's securities because the
Finance Corps. are co-obligors. Accordingly, a discussion of the results of
operations, liquidity and capital resources of the Finance Corps. are not
presented. See the Finance Corp's. notes to financial statements for a
discussion of the securities with respect to which the Finance Corps. are
serving as co-obligor.
7
<PAGE>
ITEM 2. PROPERTIES.
The Partnership owns or leases the following transportation equipment which
is utilized primarily in retail operations, except for railroad tank cars, which
are used primarily by chemical feedstocks operations.
<TABLE>
<CAPTION>
Owned Leased Total
<S> <C> <C> <C>
Truck tractors ................................................... 89 42 131
Transport trailers................................................ 118 10 128
Bulk delivery trucks.............................................. 954 481 1,435
Pickup and service trucks......................................... 1,066 381 1,447
Railroad tank cars................................................ - 320 320
</TABLE>
The highway transport trailers have an average capacity of approximately
9,000 gallons. The bulk delivery trucks are generally fitted with 2,000 to 3,000
gallon propane tanks. Each railroad tank car has a capacity of approximately
30,000 gallons.
A typical retail distribution outlet is located on one to three acres of
land and includes a small office, a workshop, bulk storage capacity of 18,000
gallons to 60,000 gallons and a small inventory of stationary customer storage
tanks and portable propane cylinders that the Partnership provides to its retail
customers for propane storage. The Partnership owns the land and buildings of
about 50% of its retail outlets and leases the remaining facilities on terms
customary in the industry and in the applicable local markets.
Approximately 675,000 propane tanks are owned by the Partnership, most of
which are located on customer property and leased to those customers. The
Partnership also owns approximately 650,000 portable propane cylinders, most of
which are leased to industrial and commercial customers for use in manufacturing
and processing needs, including forklift operations, and to residential
customers for home heating and cooking, and to local dealers who purchase
propane from the Partnership for resale.
The Partnership owns underground storage facilities at Hutchinson, Kansas;
Adamana, Arizona; and Moab, Utah. At July 31, 1996, the capacity of these
facilities approximated 88 million gallons, 88 million gallons and 8 million
gallons, respectively (an aggregate of approximately 184 million gallons).
Currently, approximately 111 million gallons of this capacity is leased to third
parties. The remaining space is available for the Partnership's use.
The Partnership owns the land and two buildings (50,245 square feet of
office space) comprising its corporate headquarters in Liberty, Missouri, and
leases the 18,124 square feet of office space in Houston, Texas, where its
trading, chemical feedstocks marketing and wholesale marketing operations are
primarily located.
The Partnership believes that it has satisfactory title to or valid rights
to use all of its material properties and, although some of such properties are
subject to liabilities and leases and, in certain cases, liens for taxes not yet
currently due and payable and immaterial encumbrances, easements and
restrictions, the Partnership does not believe that any such burdens will
materially interfere with the continued use of such properties in its business,
taken as a whole. In addition, the Partnership believes that it has, or is in
the process of obtaining, all required material approvals, authorizations,
orders, licenses, permits, franchises and consents of, and has obtained or made
all required material registrations, qualifications and filings with, the
various state and local governmental and regulatory authorities which relate to
ownership of the Partnership's properties or the operations of its business.
8
<PAGE>
ITEM 3. LEGAL PROCEEDINGS.
Litigation
Propane is a flammable, combustible gas. Serious personal injury and
property damage can occur in connection with its transportation, storage or use.
The Partnership, in the ordinary course of business, is threatened with or is
named as a defendant in various lawsuits which, among other items, seek actual
and punitive damages for product liability, personal injury and property damage.
The Partnership maintains liability insurance policies with insurers in such
amounts and with such coverages and deductibles as the General Partner believes
is reasonable and prudent. However, there can be no assurance that such
insurance will be adequate to protect the Partnership from material expenses
related to such personal injury or property damage or that such levels of
insurance will continue to be available in the future at economical prices. It
is not possible to determine the ultimate disposition of these matters discussed
above; however, management is of the opinion that there are no known claims or
known contingent claims that are likely to have a material adverse effect on the
results of operations or financial condition of the Partnership.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
No matters were submitted to a vote of the security holders of the
Operating Partnership during the fiscal year ended July 31, 1996.
PART II
ITEM 5. MARKET FOR REGISTRANT'S UNITS AND RELATED UNITHOLDER MATTERS.
The Operating Partnership does not have an established trading market for a
class of common equity. The Operating Partnership's only limited partner,
Ferrellgas Partner, L.P. owns 98.9899% of the Operating Partnership's equity,
while Ferrellgas, Inc., has a 1.0101% general partner equity share. The
Operating Partner does not have any publically traded equity.
9
<PAGE>
ITEM 6. SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA.
The following table presents selected consolidated historical and pro forma
financial data of the Partnership and Predecessor.
(in thousands, except per unit data)
<TABLE>
<CAPTION>
Ferrellgas L.P.
------------------------------------------------------------------
Historical Year Ended July 31, Pro Forma Historical
------------------------ Year Ended Inception to
1996 1995 July 31, 1994(1) July 31, 1994
------------ ----------- ---------------- ------------
Income Statement Data:
<S> <C> <C> <C> <C>
Total revenues $653,640 $596,436 $526,556 $ 24,566
Depreciation and amortization 37,024 32,014 28,835 2,383
Operating income (loss) 62,506 55,928 68,631 (2,391)
Interest expense 33,822 31,993 28,130 2,662
Earnings (loss) from continuing
operation 28,764 24,064 40,312 (5,077)
Partnership distributions 63,504 52,180 0
Balance Sheet Data (at end of period):
Working capital $ 20,149 $ 28,929 $ 34,948 $ 34,948
Total assets 650,398 578,596 477,193 477,193
Payable to (receivable from)
parent and affiliates
Long-term debt 279,112 338,188 267,062 267,062
Stockholder's equity
Partners' Capital:
Limited Partner 244,771 118,638 121,393 121,393
General Partner 2,498 1,211 1,239 1,239
Operating Data:
Retail propane sales volumes
(in gallons 650,214 575,935 564,224 23,915
Capital expenditures (2):
Maintenance $ 6,657 $ 8,625 $ 5,688 $ 911
Growth 6,654 11,097 4,032 983
Acquisition 108,803 70,069 3,429 878
------------ ----------- ---------------- ------------
Total $122,114 $ 89,791 $ 13,149 $ 2,772
============ =========== ================ ============
Supplemental Data:
Earnings (loss) before depreciation,
amoritization, interest and taxes (3) $ 99,530 $ 87,941 $ 97,466 $ (8)
Ferrellgas, Inc. and Subsidiaries (Predecessor)
-----------------------------------------------
Historical
Eleven Months Historical Year Ended July 31,
Ended -------------------------------
June 30, 1994 1993 1992
-------------- -------------- ---------------
Income Statement Data:
Total revenues $ 501,990 $ 541,945 $ 501,129
Depreciation and amortization 26,452 30,840 31,196
Operating income (loss) 71,522 58,553 56,408
Interest expense 53,693 60,071 61,219
Earnings (loss) from continuing
operation 12,337 109 (1,700)(4)
Partnership distributions
Balance Sheet Data (at end of period):
Working capital $ 91,912 $ 74,408 $ 67,973
Total assets 592,664 573,376 598,613
Payable to (receivable from) (4,050) (916) 2,236
parent and affiliates
Long-term debt 476,441 489,589 501,614
Stockholder's equity 22,829 11,359 8,808
Partners' Capital:
Limited Partner
General Partner
Operating Data:
Retail propane sales volumes
(in gallons 540,309 553,413 495,707
Capital expenditures (2):
Maintenance $ 4,777 $ 10,527 $ 10,250
Growth 3,049 2,851 3,342
Acquisition 2,551 897 10,112
------------ -------------- -----------
Total $ 10,377 $ 14,275 $ 23,704
============ ============== ===========
Supplemental Data:
Earnings (loss) before depreciation,
amortization, interest and taxes (3) $ 97,974 $ 89,393 $ 87,604
</TABLE>
(1) The pro forma year ended July 31, 1994 includes the eleven months ended
June 30, 1994 and historical financial data of the operating partnership
for the period from inception July 5, 1994 to July 31, 1994 (adjusted
principally for the pro forma effect on interest expense resulting from the
early retirement of debt net of additional borrowings).
(2) The Company's capital expenditures fall generally into three categories:
(i) maintenance capital expenditures, which include expenditures for repair
and replacement of property, plant and equipment; (ii) growth capital
expenditures, which include expenditures for purchases of new propane tanks
and other equipment to facilitate expansion of the Company's customer base
and operating capacity; and (iii) acquisition capital expenditures, which
include expenditures related to the acquisitions of retail propane
operations. Acquisition capital expenditures represent total cost of
acquisition less working capital acquired.
(3) EBITDA is calculated as operating income (loss) plus depreciation and
amortization. EBITDA is not intended to represent cash flow and does not
represent the measure of cash available for distribution. EBITDA is a
non-GAAP measure, but provides additional information for evaluating the
Partnership's ability to make the Minimum Quarterly Distribution. In
addition, EBITDA is not intended as an alternative to earnings (loss) from
continuing operations or net earnings (loss).
10
<PAGE>
(4) In August 1991, the Company revised the estimated useful lives of storage
tanks from 20 to 30 years in order to more closely reflect expected useful
lives of the assets. The effect of the change in accounting estimates
resulted in a favorable impact on loss from continuing operations of
approximately $3.7 million for the fiscal year ended July 31, 1992.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the historical
and pro forma consolidated financial statements and the notes thereto included
elsewhere in this Form 10-K. Except for the $160,000,000 of 9 3/8% Senior
Secured Notes issued in April 1996 by the MLP (the "MLP Senior Notes") and the
related interest expense, the Operating Partnership accounts for nearly all of
the consolidated assets, sales, and earnings of the MLP. When the discussion
refers to both MLP and OLP, the term "Partnership" may be used.
General
The Partnership is engaged in the sale, distribution, marketing and trading
of propane and other natural gas liquids. The Partnership's revenue is derived
primarily from the retail propane marketing business. The General Partner
believes the Partnership is the second largest retail marketer of propane in the
United States, based on gallons sold, serving more than 800,000 residential,
industrial/commercial and agricultural customers in 45 states and the District
of Columbia through approximately 523 retail outlets and 283 satellite
locations. Annual retail propane sales volumes were 650 million, 576 million and
564 million gallons for the fiscal years ended July 31, 1996, 1995, and 1994 ,
respectively.
The retail propane business of the Partnership consists principally of
transporting propane purchased in the contract and spot markets, primarily from
major oil companies, to its retail distribution outlets and then to tanks
located on the customers' premises, as well as to portable propane cylinders. In
the residential and commercial markets, propane is primarily used for space
heating, water heating and cooking. In the agricultural market, propane is
primarily used for crop drying, space heating, irrigation and weed control. In
addition, propane is used for certain industrial applications, including use as
an engine fuel which is burned in internal combustion engines that power
vehicles and forklifts and as a heating or energy source in manufacturing and
drying processes.
The Partnership is also engaged in the trading of propane and other natural
gas liquids, chemical feedstocks marketing and wholesale propane marketing.
Through its natural gas liquids trading operations and wholesale marketing, the
Partnership is one of the largest independent traders of propane and natural gas
liquids in the United States. In fiscal year 1996, the Partnership's wholesale
and trading sales volume was approximately 1.7 billion gallons of propane and
other natural gas liquids, over 44% of which was propane.
The Partnership's traders are engaged in trading propane and other natural
gas liquids for the Partnership's account and for supplying the Partnership's
retail and wholesale propane operations. The Partnership primarily trades
products purchased from its over 150 suppliers, however, it also conducts
transactions on the New York Mercantile Exchange. Trading activity is conducted
primarily to generate a profit independent of the retail and wholesale
operations, but is also conducted to insure the availability of propane during
periods of short supply. Propane represents over 44% of the Partnership's total
trading volume, with the remainder consisting principally of various other
natural gas liquids. The Partnership attempts to minimize trading risk through
the enforcement of its trading policies, which include total inventory limits
and loss limits, and attempts to minimize credit risk through credit checks and
application of its credit policies. However, there can be no assurance that
historical experience or the existence of such policies will prevent trading
losses in the future. For the Partnership's fiscal years ended July 31, 1996 and
1995, and the pro forma fiscal year ended July 31, 1994, net revenues from
trading activities were $7.3 million, $5.8 million and $6.8 million,
respectively.
11
<PAGE>
Selected Quarterly Financial Data
(in thousands)
Due to the seasonality of the retail propane business, first and fourth
quarter revenues, gross profit and net earnings are consistently less than the
comparable second and third quarter results. The following presents the
Operating Partnership's selected quarterly financial data for the two years
ended July 31, 1996.
<TABLE>
<CAPTION>
Fiscal year ended July 31, 1996
First Quarter Second Quarter Third Quarter Fourth Quarter
(1)
----------------- ----------------- ---------------- -----------------
<S> <C> <C> <C> <C>
Revenues $124,588 $238,381 $190,743 $99,928
Gross profit 55,479 111,909 85,480 44,458
Earnings (loss) before
extraordinary loss (7,378) 41,900 18,365 (24,123)
Net earnings (loss) (1) (7,378) 41,900 18,365 (25,098)
</TABLE>
(1) Reflects a $975 extraordinary loss on early retirement of debt.
Fiscal year ended July 31, 1995
<TABLE>
<CAPTION>
First Quarter Second Quarter Third Quarter Fourth Quarter
---------------- ---------------- --------------- ---------------
<S> <C> <C> <C> <C>
Revenues 119,413 $ 218,661 $ 168,013 $ 90,349
Gross profit 52,002 95,772 73,254 35,767
Net earnings (loss) (673) 30,840 12,061 (18,164)
</TABLE>
Results of Operations
Fiscal Year Ended July 31, 1996 versus Fiscal Year Ended July 31, 1995
Total Revenues. Total revenues increased 9.6% as compared to the prior
year, primarily due to increased retail propane volumes and increased sales
price per retail gallon, partially offset by the decline in revenues from other
operations (net trading operations, wholesale propane marketing and chemical
feedstocks marketing).
Retail volumes increased by 12.9% or 74 million gallons, primarily due to
the impact of colder weather during fiscal 1996 as compared to fiscal 1995 and
acquisition related growth. Fiscal 1996 winter temperatures, as reported by the
American Gas Association, were 14.3% colder than the prior year and 3.0% colder
than normal. Colder winter temperatures also caused higher cost of product which
in turn produced a corresponding increase in sales price per gallon as compared
to the prior fiscal year.
The 28.5% decrease in revenues from other operations to $94,318,000 is
primarily due to a decrease in chemical feedstocks marketing revenues due to a
decrease in sales volume and selling price. Both volume and price decreased as a
result of decreased availability of product from refineries and decreased demand
from petrochemical companies. Unrealized gains and losses on options, forwards,
and futures contracts were not significant in fiscal 1996 and 1995.
12
<PAGE>
The acquisition of Skelgas in May 1996 did not have a significant impact on
fiscal 1996 revenues due to the expected low retail volumes in the fourth
quarter of fiscal 1996. The Partnership expects fiscal 1997 retail propane
revenues to increase primarily due to the full fiscal year impact of the Skelgas
acquisition. Due to, among other factors, the uncertainty in both fiscal 1997
temperature levels and sales price per gallon, the Partnership is unable to
predict the impact of the Skelgas acquisition on future revenues. During the
nine months ended April 30, 1996, Skelgas sold approximately 87 million retail
propane gallons, however, temperatures were 3.0% colder than normal.
Gross Profit. Gross profit increased 15.8% as compared to the 1995 fiscal
year, primarily due to a $28,415,000 increase in retail sales gross margin and
to a lesser extent gross profits from other operations. Retail operations
results increased primarily due to the increase in retail volumes. Other
operations increased $11,027,000 mainly due to the increased activity of a
non-retail transportation operation. This increased activity did not materially
impact income from continuing operations due to the related increase in
operating expenses. Chemical feedstocks is comprised of low margin sales,
therefore, the decrease in revenues did not significantly impact gross profit.
Operating Expenses. Operating expenses increased 17.1% over the prior year.
The increase is primarily attributable to acquisitions of propane and increased
activity in the non-retail transportation operations as compared to the prior
year.
Depreciation and Amortization. Depreciation and amortization expense
increased 15.6% over the prior year due primarily to acquisitions of propane
businesses.
Interest expense and extraordinary loss. Interest expense increased 5.7%
over the prior year. This increase is primarily the result of the the increased
net borrowings from the Operating Partnership's revolving credit loans during
the first nine months of the year, partially offset by decreasing interest rates
during the first nine months of the year.
The extraordinary charge of $975,000 is due to the write off of unamortized
debt issuance costs as a result of the refinancing of the $50,000,000 of
floating rate debt previously issued by the Operating Partnership. The Operating
Partnership expects interest expense related to this debt to decrease by 2% per
annum in fiscal 1997.
Fiscal Year Ended July 31, 1995 versus Pro Forma Year Ended July 31, 1994
The pro forma year ended July 31, 1994 equals the sum of the Predecessor's
eleven months ended June 30, 1994 and the Partnership's one month ended July 31,
1994, adjusted for the effects of the transactions consummated in connection
with the formation of the Partnership (principally related to the reduction in
interest expense resulting from early retirement of debt, net of additional
borrowings).
Total Revenues. Total revenues increased 13.3% to $596,436,000 as compared
to $526,556,000 for the prior year. The increase is attributable to acquisitions
of propane businesses during November 1994 and to revenues from other operations
(net trading operations, wholesale propane marketing and chemical feedstocks
marketing) increasing 82.4% to $131,948,000. The increase in revenues from other
operations is primarily due to an unusually strong demand for chemical
feedstocks driving increased prices and volumes. These increases were offset by
a decrease in revenues from existing retail operations due to warmer
temperatures as compared to normal and to the prior period that have affected
the majority of the Operating Partnership's areas of operation. Unrealized gains
and losses on options, forwards, and futures contracts were not significant in
fiscal 1995 and 1994. Fiscal 1995 winter temperatures, as reported by the
American Gas Association, were 10.3% warmer than normal and 12.4% warmer than
the prior year. The average degree days in regions served by the Company have
historically varied on an annual basis by a greater amount than the average
national degree days.
13
<PAGE>
Gross Profit. Total retail gallons sold increased 2.1% to 576 million as
compared to 564 million for the prior year. This increase is due to sales
contributed by acquisitions, partially offset by warmer temperatures. Despite
the increase in sales volume, gross profit was essentially flat at $256,795,000
as compared with $257,250,000 for the prior year due primarily to the weather
impact on higher margin residential sales. Other operations is comprised of low
margin sales, therefore, the increase in revenues did not impact gross profit
significantly.
Operating Expenses. Operating expenses increased 5.6% to $153,225,000 as
compared to $145,136,000 for the prior year. The increase is primarily
attributable to acquisitions of propane businesses offset by a reduction in
expenses of the base business (primarily personnel and vehicle expenses) as
compared to the prior year.
Depreciation and Amortization. Depreciation and amortization expense
increased 11.0% to $32,014,000 as compared to $28,835,000 for the prior year due
primarily to acquisitions of propane businesses.
Net Earnings. Net earnings decreased to $24,064,000 as compared to
$40,312,000 for the prior year. This decrease is due to acquisition-driven
increases in expenses, including interest expense, combined with the warm
weather impact on gross profit.
Liquidity and Capital Resources
The ability of the OLP 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, 1997, 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 MLP Senior Notes issued in April 1996, and enable it to
distribute the Minimum Quarterly Distribution ($0.50 per Unit) on all Common
Units and Subordinated Units. Future maintenance and working capital needs of
the OLP 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 or the MLP may issue additional Common Units. Toward this
purpose the MLP maintains a shelf registration statement with the Securities and
Exchange Commission for 1,887,420 Common Units representing limited partner
interests in the MLP. During the year ended July 31, 1996, the MLP issued
213,758 Common Units in connection with the acquisition of propane businesses.
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 provided by operating activities was $63,396,000
for the year ended July 31, 1996, compared to $66,030,000 in the prior year.
This slight decrease is primarily due to the decrease in accounts payable offset
by a decrease in inventories related to the decreased level of chemical
feedstocks operations. Additional factors impacting cash provided from operating
activities include an increase in other liabilities, offset by an increase in
retail accounts receivable primarily due to unfavorable economic conditions.
14
<PAGE>
Investing Activities. On April 30, 1996, the General Partner completed the
acquisition of Skelgas for a cash purchase price of $89,650,000. Following the
closing of the acquisition, the General Partner (i) caused Skelgas and each of
its subsidiaries to be merged into Ferrellgas and (ii) transferred all of the
assets of Skelgas and its subsidiaries to the Operating Partnership. In
exchange, the Operating Partnership assumed substantially all of the
liabilities, whether known or unknown, associated with Skelgas and its
subsidiaries and their propane business (excluding income tax liabilities). In
consideration of the retention by Ferrellgas of certain income tax liabilities,
the MLP issued 41,203 Common Units to Ferrellgas. The liabilities assumed by the
Operating Partnership included the obligations of Ferrellgas under a $89,650,000
million Bank of America ("BofA") Acquisition Loan. Immediately following the
transfer of assets and related transactions described above, the Operating
Partnership repaid the BofA Acquisition Loan principally from cash proceeds of
the MLP Senior Notes and borrowings under the Operating Partnership's existing
acquisition bank credit line. Including the Skelgas acquisition, the Partnership
made total acquisition capital expenditures of $128,165,000 (including working
capital acquired of $19,362,000) in fiscal 1996. This amount was funded by
$108,120,000 debt assumed, $8,116,000 cash payments, $4,825,000 Common Units
issued, and $7,104,000 in other costs and consideration.
During the year ended July 31, 1996, the Partnership made growth and
maintenance capital expenditures of $13,011,000 consisting primarily of the
following: 1) additions to Partnership-owned customer tanks and cylinders, 2)
vehicle lease buyouts, 3) relocating and upgrading district plant facilities,
and 4) development and 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 maintains its vehicle and transportation
equipment fleet 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. The Partnership does not have
any material commitments of funds for capital expenditures other than to support
the current level of operations. In fiscal 1997, the Partnership expects growth
and maintenance capital expenditures to increase over fiscal 1996 levels.
Financing Activities. On April 26, 1996, the MLP issued the MLP Senior
Notes. The MLP Senior Notes will be redeemable at the option of the Partnership,
in whole or in part, at any time on or after June 15, 2001. The MLP Senior Notes
will become guaranteed by the OLP on a senior subordinated basis if certain
conditions are met. The Amended and Restated Credit Agreement and the OLP Senior
Note Indenture currently prohibit the OLP from guaranteeing any indebtedness
unless, among meeting other conditions, the fixed charge coverage ratio for the
OLP meets certain levels at prescribed dates. Currently the OLP does not meet
such conditions and, therefore, there can be no assurance as to whether or when
this guarantee will occur. Interest is payable semi-annually in arrears on June
15 and December 15 of each year commencing on December 15, 1996. A portion of
the net proceeds was used to retire outstanding indebtedness of $66,350,000
under the OLP's credit facility. The remaining proceeds were used to retire
$89,650,000 of indebtness assumed from the General Partner pursuant to the
Skelgas acquisition.
On July 31, 1996, the OLP amended and restated its $205,000,000 Credit
Facility (the "Credit Facility") with Bank of America National Trust & Savings
Association ("BofA"), as Agent. Among other changes, the amendment increased the
maximum borrowing amount to $255,000,000 and extends the termination date of the
revolving line of credit to July 1999. The unsecured Credit Facility permits
borrowings of up to $185,000,000 on a senior unsecured revolving line of credit
basis to fund general corporate, working capital and acquisition purposes (of
which up to $50,000,000 is available to support letters of credit). The Credit
Facility also provides an unsecured revolving line of credit for additional
working capital needs of $20,000,000.
The Credit Facility also includes an unsecured term loan due June 1, 2001
(the "Refinancing Loan ") which was used to refinance the OLP's $50,000,000
Floating Rate Series B Senior Notes (the "Floating Senior Notes"). On July 31,
1996, the OLP used the proceeds of the Refinancing Loan to redeem the Floating
Senior Notes. The OLP expects interest expense related to this debt to decrease
by 2% per annum.
15
<PAGE>
To offset the variable rate characteristic of the Credit Facility, the OLP
has entered into interest rate collar agreements, expiring between June and
December 1998, with three major banks that effectively limit interest rates on a
certain notional amount between 4.9% and 6.5% under the current pricing
arrangement. At July 31, 1996, the total notional principal amount of these
agreements was $125,000,000.
At July 31, 1996, $44,500,000 of borrowings were outstanding under the
revolving portion of the Credit Facility. Letters of credit outstanding, used
primarily to secure obligations under certain insurance arrangements, totaled
$26,824,000. At July 31, 1996, the OLP had $133,676,000 available for general
corporate, acquisition and working capital purposes under the Credit Facility.
The Partnership typically has significant cash needs during the first quarter
due to expected low revenues, increasing inventories and the September cash
distribution. The OLP also has outstanding $200,000,000 of 10% Fixed Rate Senior
Notes due 2001.
During the year ended July 31, 1996, the OLP distributed enough funds to
the MLP so that the MLP was able to pay cash distributions of $2.00 per limited
partner unit. These distributions covered the period from May 1, 1995 to April
30, 1996. On August 19, 1996, the Partnership declared its fourth-quarter cash
distribution of $0.50 per limited partner unit, which was paid September 13,
1996. The Partnership's annualized distribution is presently $2.00 per limited
partner unit.
The OLP Fixed Rate Senior Notes and Credit Facility contain various
restrictive covenants applicable to the Operating Partnership and its
subsidiaries, the most restrictive relating to additional indebtedness, sale and
disposition of assets, and transactions with affiliates. In addition, the
Operating Partnership is prohibited from making cash distributions of the
Minimum Quarterly Distribution if a default or event of default exists or would
exist upon making such distribution, or if the Operating Partnership fails to
meet certain coverage tests. The Operating Partnership is in compliance with all
requirements, tests, limitations and covenants related to the OLP Fixed Rate
Senior Notes and Credit Facility.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The Operating Partnership's Consolidated Financial Statements and the
Reports of Certified Public Accountants thereon and the Supplementary Financial
Information listed on the accompanying Index to Financial Statements and
Financial Statement Schedules are hereby incorporated by reference. See Item 7
for Selected Quarterly Financial Data.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANTS.
Partnership Management
The General Partner manages and operates the activities of the Partnership,
and the General Partner anticipates that its activities will be limited to such
management and operation. Unitholders do not directly or indirectly participate
in the management or operation of the Partnership. The General Partner owes a
fiduciary duty to the Unitholders.
16
<PAGE>
In September 1994, the General Partner appointed two persons who are
neither officers nor employees of the General Partner or any affiliate of the
General Partner to serve on a committee of the Partnership (the "Audit
Committee") with the authority to review, at the request of the General Partner,
specific matters as to which the General Partner believes there may be a
conflict of interest in order to determine if the resolution of such conflict
proposed by the General Partner is fair and reasonable to the Partnership. The
Audit Committee will only review matters relating to conflicts of interest at
the request of the General Partner, and the General Partner has sole discretion
to determine which matters, if any, to submit to the Audit Committee. Any
matters approved by the Audit Committee will be conclusively deemed to be fair
and reasonable to the Partnership, approved by all partners of the Partnership
and not a breach by the General Partner of any duties it may owe the Partnership
or the Unitholders.
The Partnership does not directly employ any of the persons responsible for
managing or operating the Partnership. At July 31, 1996, 3,370 full-time and 770
temporary and part-time individuals were employed by the General Partner.
Directors and Executive Officers of the General Partner
The following table sets forth certain information with respect to the
directors and executive officers of the General Partner. Each of the persons
named below is elected to their respective office or offices annually. None of
the executive officers have entered into employment agreements with the General
Partner.
Director
Name Age Since Position
James E. Ferrell 56 1984 President, Chairman of the
Board, Chief Executive Officer
and a Director of the General
Partner
Danley K. Sheldon 38 Senior Vice President, Chief
Financial Officer, President-Retail,
Treasurer and Managing Director
Shahid J. A. Malik 36 Senior Vice President, Chief
Operating Officer, Ferrell
North America and Managing
Director
James M. Hake 36 Vice President, Acquisitions
Patrick J. Chesterman 46 Vice President, Retail
Operations
Daniel M. Lambert 55 1994 Director of the General Partner
A. Andrew Levison 40 1994 Director of the General Partner
James E. Ferrell--Mr. Ferrell has been with Ferrell or its predecessors and
its affiliates in various executive capacities since 1965.
Danley K. Sheldon--Mr. Sheldon has been Chief Financial Officer of the
Company since January 1994. He as appointed President - Retail in
October, 1996 and has served as Treasurer since 1989. He joined the
Company in 1986.
17
<PAGE>
Shahid J. A. Malik--Mr. Malik has been Chief Operating Officer of Ferrell
North America ("FNA") since August, 1994. He joined the Company in February,
1994 as Vice President of Business Development. Prior to joining the Company,
Mr. Malik was Commercial Manager at British Petroleum from 1990 to 1994,
responsible for oil supply, trading and operations of British Petroleum's
business for most of North America.
James M. Hake--Mr. Hake has been Vice President, Acquisitions of the
Company since October, 1994. He joined the Company in 1986.
Patrick J. Chesterman--Mr. Chesterman has been Vice President, Retail
Operations since August, 1996. After joining the Company in June, 1994, he had
one-year assignments as Director of Human Resources and Director of Field
Support. Prior to joining the Company, Mr. Chesterman was Director of Fuels
Policy and Operations for the U.S. Air Force.
Daniel M. Lambert---Dr. Lambert was elected a director of the Company in
September 1994. Dr. Lambert has been President of Baker University in Baldwin
City, Kansas, since July 1, 1987.
A. Andrew Levison---Mr. Levison was elected a director of the Company in
September 1994. Mr. Levison has been a Managing Director of Donaldson, Lufkin &
Jenrette Securities Corporation since 1989. Mr. Levison is also a director of
Rickel Home Centers, Inc., a leading full service home improvement retailer that
operates stores in the Northeastern United States, and Flagstar Companies, Inc.
Compensation of the General Partner
The General Partner receives no management fee or similar compensation in
connection with its management of the Partnership and receives no
remuneration other than:
(i) distributions in respect of its 2% general partner interest, on a
combined basis, in the Partnership
and the Operating Partnership; and
(ii) reimbursement for all direct and indirect costs and expenses
incurred on behalf of the Partnership, all selling, general and
administrative expenses incurred by the General Partner for or on behalf of
the Partnership and all other expenses necessary or appropriate to the
conduct of the business of, and allocable to, the Partnership. The selling,
general and administrative expenses reimbursed include specific employee
benefit and incentive plans for the benefit of the executive officers and
employees of the General Partner.
18
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION.
Summary Compensation Table
The following table sets forth the compensation for the past three years of
all individuals serving as the Partnership's or its Predecessor's Chief
Executive Officer ("CEO") or acting in a similar capacity during the last
completed fiscal year, regardless of compensation level, and the Company's three
most highly compensated executive officers other than the Chief Executive
Officer ("named executive officers"), who were serving as executive officers at
the end of the 1996 fiscal year.
<TABLE>
<CAPTION>
Long Term Compensation
---------------------------------------
Annual Compensation Awards Payouts
------------------------------------ ---------------------------------------
Other Securities
Annual Restricted Underlying All Other
Compen- Stock Options/ LTIP Compen-
Name and Salary Bonus sation Awards SARs Payouts sation
Principal Position Year ($) ($) ($) ($) (#) ($) ($)
- --------------------------------- ------ ------------ ----------------------- ---------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
James E. Ferrell 1996 480,000 --- --- --- --- 16,801 (1)
Chairman and 1995 480,000 180,000 --- --- --- 36,977
Chief Executive Officer 1994 480,000 --- --- --- --- 22,920
Danley K. Sheldon 1996 177,500 100,000 --- --- --- 13,972 (1)
Senior Vice President, Chief 1995 165,000 50,000 --- --- 70,000 15,897
Financial Officer,President- 1994 120,185 125,875 --- --- --- 7,693
Retail and Managing
Director
Shahid Malik 1996 162,500 165,000 --- --- --- 6,457 (1)
Senior Vice President, Chief 1995 150,000 100,000 --- --- 25,000 9,706
Operating Officer, FNA --- ---
and Managing Director
James A. Hake
Vice President, Acquisitions 1996 120,000 85,000 --- --- --- 9,962 (1)
1995 112,583 60,000 --- --- 36,000 10,424
</TABLE>
(1) Includes for Mr. Ferrell contributions of $15,189 to the employee's 401(k)
and profit sharing plans and compensation of $1,612 resulting from the
payment of life insurance premiums. Includes for Mr. Sheldon contributions
of $12,850 to the employee's 401(k) and profit sharing plans and
compensation of $1,122 resulting from the payment of life insurance
premiums. Includes for Mr. Malik contributions of $5,598 to the employee
401(k) and profit sharing plans and compensation of $860 resulting from the
payment of life insurance premiums. Includes for Mr. Hake contributions of
$9,236 to the employee's 401(k) and profit sharing plans and compensation
of $726 resulting from the payment of life insurance premiums.
Unit Options
On October 14, 1994, the General Partner adopted the Ferrellgas, Inc. Unit
Option Plan (the "Unit Option Plan"). The purpose of the Unit Option Plan is to
encourage certain employees of the General Partner to develop a proprietary
interest in the growth and performance of the Partnership, to generate an
increased incentive to contribute to the Partnership's future success and
prosperity, thus enhancing the value of the Partnership for the benefit of its
unitholders, and to enhance the ability of the General Partner to attract and
retain key individuals who are essential to progress, growth and profitability
of the Partnership, by giving such employees the opportunity to acquire
Subordinated Units.
19
<PAGE>
The Unit Options have the following characteristics: 1) exercise prices
which are an estimate of the fair market value of the Subordinated Units at the
time of grant, 2) vest immediately or over a one to five year period depending
on the employee, 3) exercisable beginning after July 31, 1999, assuming the
subordination period has elapsed, and 4) expire on the tenth anniversary of the
date of grant. Upon conversion of the Subordinated Units held by the General
Partner and its affiliates, the Unit Options granted will convert to Common Unit
Options.
There were no grants of unit options during the 1996 fiscal year to the CEO
and named executive officers.
The following table lists information on the CEO and named executive
officers' exercised/unexercised unit options for the fiscal year ended July 31,
1996.
AGGREGATED OPTION/SAR EXERCISES IN LAST FY AND FY-END OPTION SAR VALUES
<TABLE>
<CAPTION>
Number of Securities
Underlying Unexercised Value of Unexercised
Options/SARs at In-The-Money Options/SARs
FY-End (#) at FY-End ($)
------------------------- -----------------------------
Shares
Acquired on Value Exercisable/ Exercisable/
Name Exercise (#) Realized ($) Unexercisable Unexercisable
- ------------------------ --------------- -------------- ------------------------- ------------------------------
J.E. Ferrell - - - -
<S> <C> <C> <C> <C>
D.K. Sheldon 0 0 0/70,000 0/381,500
S.J.A. Malik 0 0 0/25,000 0/136,250
J.M. Hake 0 0 0/36,000 0/196,200
Profit Sharing Plan
</TABLE>
The Ferrell Profit Sharing and 401(k) Investment Plan is a qualified
defined contribution plan (the "Profit Sharing Plan"). All full-time employees
of Ferrell or any of its direct or indirect wholly owned subsidiaries with at
least one year of service are eligible to participate in the Profit Sharing
Plan. In regards to the profit sharing portion, the Board of Directors of
Ferrell determines the amount of the annual contribution to the Profit Sharing
Plan, which is purely discretionary. This decision is based on the operating
results of Ferrell for the previous fiscal year and anticipated future cash
needs of the General Partner and Ferrell. The contributions are allocated to the
Profit Sharing Plan participant's based on each participant's wages or salary as
compared to the total of all participants' wages and salaries.
Historically, the annual contribution to the Profit Sharing Plan has been
1% to 7% of each participant's annual wage or salary. The Profit Sharing Plan
also has a cash-or-deferred, or 401(k), feature allowing all full time employees
to specify a portion of their pre-tax and/or after-tax compensation to be
contributed to the Profit Sharing Plan.
Supplemental Savings Plan
The Ferrell Supplemental Savings Plan was established October 1, 1994 in
order to provide certain management or highly compensated employees with
supplemental retirement income which is approximately equal in amount to the
retirement income that would have been provided to members of the select group
of employees under the terms of the 401(k) feature of the Profit Sharing Plan
based on such members' deferral elections thereunder, but which could not be
provided under the 401(k) feature of the Profit Sharing Plan due to application
of certain IRS rules and regulations.
20
<PAGE>
Compensation of Directors
The General Partner does not pay any additional remuneration to its
employees (or employees of, or legal counsel to, a direct or indirect
wholly-owned subsidiary) for serving as directors. Directors who are not
employees of the General Partner, a direct or indirect wholly-owned subsidiary,
or counsel to any of the foregoing, receive a fee per meeting of $500, plus
reimbursement for out-of-pocket expenses.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The MLP holds a 98.9899% limited partner interest in the Operating
Partnership, while Ferrellgas, Inc. holds a 1.0101% general partner interest.
The following table sets forth certain information as of July 31, 1996,
regarding the beneficial ownership of the Common and Subordinated Units of the
MLP by certain beneficial owners, all directors and named executive officers of
the General Partner and the Partnership, each of the named executive officers
and all directors and executive officers of the General Partner as a group. The
General Partner knows of no other person beneficially owning more than 5% of the
Common Units.
Ferrellgas Partners, L.P.
<TABLE>
<CAPTION>
Units
Title of Class Name and Address of Beneficial Owner Beneficially
Owned (1) Percentage of Class
- --------------------------- --------------------------------------- ------------------- -------------------
<S> <C> <C> <C>
Common Units James E. Ferrell 1,214,162 (2) 8.3
Goldman, Sachs & Co. 1,186,495 (3) 8.1
The Goldman Sachs Group 1,186,495 (3) 8.1
Danley K. Sheldon 1,000 *
Shahid J. A. Malik 1,350 (4) *
James M. Hake 400 *
A. Andrew Levison 15,000 *
Daniel M. Lambert 560 *
All Directors and Officers as a Group 1,212,472 8.4
Subordinated Units James E. Ferrell 16,593,721 (2) 100.0
</TABLE>
(1) Beneficial ownership for the purposes of the foregoing table is defined by
Rule 13d-3 under the Securities Exchange Act of 1934. Under that rule, a person
is generally considered to be the beneficial owner of a security if he has or
shares the power to vote or direct the voting thereof ("Voting Power") or to
dispose or direct the disposition thereof ("Investment Power") or has the right
to acquire either of those powers within sixty (60) days.
(2) The address for James E. Ferrell is c/o Ferrellgas, Inc., P.O. Box 4644,
Houston, TX, 77210.
Includes (i) 1,210,162 Common Units and 16,593,721 Subordinated Units held by
Ferrellgas, Inc. a wholly owned subsidiary of Ferrell Companies, Inc. and (ii)
4,000 Common Units held by the Sarah A. Ferrell Trust of which Elizabeth J.
Ferrell, Mr. Ferrell's wife, is a trustee. Mr. Ferrell is the sole director of
Ferrell Companies, Inc.
(3) The address for both Goldman Sachs Group, L.P. and Goldman, Sachs & Co. is
85 Broad Street, New York, New York, 10004.
Goldman, Sachs & Co., a broker/dealer, and its parent Goldman Sachs Group,
L.P. are deemed to have shared voting power and shared dispositive power
over 1,186,495 Common Units owned by their customers.
(4) Mr. Malik shares Voting and Investment Power with this wife.
21
<PAGE>
Compliance With Section 16(a) of the Securities and Exchange Act
Section 16(a) of the Securities and Exchange Act of 1934 requires the
General Partner's officers and directors, and persons who own more than 10% of a
registered class of the Partnership's equity securities, to file reports of
beneficial ownership and changes in beneficial ownership with the Securities and
Exchange Commission ("SEC"). Officers, directors and greater than 10 percent
unitholders are required by SEC regulation to furnish the General Partner with
copies of all Section 16(a) forms.
Based solely on its review of the copies of such forms received by the
General Partner, or written representations from certain reporting persons that
no Form 5's were required for those persons, the General Partner believes that
during fiscal year 1996 all filing requirements applicable to its officers,
directors, and greater than 10 percent beneficial owners were met in a timely
manner with the exception of the late filing by the CEO of one Form 4.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Set forth below is a discussion of certain relationships and related
transactions among affiliates of the Partnership.
The Partnership has no employees and is managed and controlled by the
General Partner. Pursuant to the Partnership Agreement, the General Partner is
entitled to reimbursement for all direct and indirect expenses incurred or
payments it makes on behalf of the Partnership, and all other necessary or
appropriate expenses allocable to the Partnership or otherwise reasonably
incurred by the General Partner in connection with operating the Partnership's
business. These costs, which totaled $109,637,000 and $100,750,000 for the years
ended July 31, 1996 and 1995 and $7,561,000 from inception to July 31, 1994,
include compensation and benefits paid to officers and employees of the General
Partner, and general and administrative costs. In addition, the conveyance of
the net assets of the Company to the Partnership included the assumption of
specific liabilities related to employee benefit and incentive plans for the
benefit of the officers and employees of the General Partner. The conveyance of
the net assets of the Company to the Partnership is described in Note A of the
Ferrellgas Partners, L.P. notes to the consolidated financial statements.
A. Andrew Levison, a director of the General Partner is a Managing Director
of Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"). DLJ acted as an
underwriter with regard to the private placement of $160,000,000 senior
subordinated notes issued in April 1996 and was paid fees of $4,000,000 in
fiscal 1996. No fees were paid in 1995. DLJ acted as an underwriter with regard
to the public offering of Common Units and Senior Notes as described in Note A
of the Ferrellgas Partners, L.P.'s notes to the consolidated financial
statements and was paid total fees of $5,100,000 during 1994.
The law firm of Smith, Gill, Fisher & Butts, a Professional Corporation,
was general counsel to the Partnership, General Partner, Ferrell Companies, Inc.
and their respective subsidiaries and affiliates. David S. Mouber, a director of
Ferrell through July 31, 1994, was a member of such law firm during the pro
forma fiscal year of the Partnership and the Predecessor ended July 31, 1994.
The Partnership, Ferrell and their respective subsidiaries paid such firm fees
of $1,394,000 during the pro forma year ended July 31, 1994.
See Note L to the financial statements in Item 14 for discussion of
transcations involving acquisitions related to the General Partner and the
Operating Partnership.
22
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K.
(a) 1. Financial Statements.
See "Index to Financial Statements" set forth on page F-1.
2. Financial Statement Schedules.
See "Index to Financial Statement Schedules" set forth on page
S-1.
3. Exhibits.
See "Index to Exhibits" set forth on page E-1.
(b) Reports on Form 8-K.
The Operating Partnership filed one Form 8-K during the quarter ended
July 31, 1996.
Form 8-K dated May 6, 1996, (as amended on July 12, 1996) reporting the
acquisition by the Operating Partnership of the propane business of Skelgas
Propane, Inc.
23
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
FERRELLGAS, L.P.
By Ferrellgas, Inc. (General Partner)
By /s/ James E. Ferrell
James E. Ferrell
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed by the following persons in the capacities and on
the dates indicated:
Signature Title Date
/s/ James E. Ferrell Chairman of the Board, 10/15/96
James E. Ferrell Chief Executive Officer and
Director (Principal Executive Officer)
/s/ Daniel M. Lambert Director 10/15/96
Daniel M. Lambert
/s/ A. Andrew Levison Director 10/15/96
A. Andrew Levison
/s/ Danley K. Sheldon Senior Vice President and Chief 10/15/96
Danley K. Sheldon Financial Officer (Principal
Financial and Accounting Officer)
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
FERRELLGAS FINANCE CORP.
By /s/ James E. Ferrell
James E. Ferrell
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed by the following persons in the capacities and on
the dates indicated:
Signature Title Date
/s/ James E. Ferrell Chairman of the Board, 10/15/96
James E. Ferrell Chief Executive Officer and
Sole Director (Principal
Executive Officer)
/s/ Danley K. Sheldon Senior Vice President and Chief 10/15/96
Danley K. Sheldon Financial Officer (Principal
Financial and Accounting Officer)
<PAGE>
INDEX TO EXHIBITS
The exhibits listed on the accompanying Exhibit Index are filed as part
of this report. Exhibits required by Item 601 of Regulation S-K which are not
listed are not applicable.
Exhibit
Number Description
(1) 2.1 Stock Purchase Agreement dated September 30, 1994,
between Ferrellgas, Inc. and Bell
Atlantic Enterprises International, Inc.
(2) 2.2 Agreement for Purchase and Sale of Stock dated March
23,1996 between Superior Propane, Inc.and Ferrellgas,
Inc.
(3) 3.1 Agreement of Limited Partnership of Ferrellgas
Partners, L.P.
(4) 3.2 Amended and Restated Agreement of Limited Partnership
of Ferrellgas, L.P. dated as of April 23, 1996.
(5) 4.1 Indenture dated as of July 5, 1994, among Ferrellgas,
L.P., Ferrellgas Finance Corp. and Norwest Bank
Minnesota, National Association, as Trustee, relating
to $200,000,000 10% Series A Fixed Rate Senior Notes
due 2001 and $50,000,000 Series B Floating Rate
Senior Notes due 2001.
(6) 4.2 Indenture dated as of April 26, 1996, among Ferrellgas
Partners, L.P., Ferrellgas Partners Finance Corp.,
Ferrellgas, L.P. as guarantor, and Amercan Bank
National Association, as Trustee, relating to
$160,000,000 9 3/8% Senior Secured Notes due 2006.
(7) 4.3 Registration Rights Agreement dated as of April, 26,
1996 among Ferrellgas Partners, L.P., Ferrellgas
Partners Finance Corp., Ferrellgas, L.P., Donaldson,
Lufkin & Jenrette Securities Corporation and Goldman,
Sachs & Co.
(8) 10.2 Agreement dated as of April 1, 1994, between BP
Exploration & Oil, Inc. and Ferrellgas, L.P. dba
Ferrell North America
(9)# 10.3 Ferrell Companies, Inc. Supplemental Savings Plan.
(10)# 10.4 Ferrellgas, Inc. Unit Option Plan.
(11) 10.5 Contribution, Conveyance and Assumption Agreement
dated as of November 1, 1994 among the Partnership,
the Operating Partnership and Ferrellgas, Inc.
(12) 10.6 First Amendment to Contribution, Conveyance and
Assumption Agreement between Ferrellgas, the
Partnership and the Operating Partnership.
(13) 10.7 Second Amendment to Contribution, Conveyance and
Assumption Agreement between Ferrellgas, the
Partnership and the Operating Partnership.
(14) 10.8 Purchase Agreement dated as of April 23, 1996 between
Ferrellgas Partners, L.P.,
Ferrellgas Partners Finance Corp., Ferrellgas, Inc.,
Ferrellgas, L.P., Donaldson,
Lufkin & Jenrette Securities Corporation and Goldman,
Sachs & Co.
(15) 10.9 Pledge and Security Agreement dated as of April
26, 1996 among Ferrellgas Partners, L.P., Ferrellgas,
Inc., and American Bank National Association, as
collateral agent.
E-1
<PAGE>
10.10 Amended and Restated Credit Agreement dated as of July
31, 1996, among Ferrellgas, L.P., Stratton Insurance
Company, Inc., Ferrellgas, Inc., Bank of America
National Trust and Savings Association, as agent, and
the other financial institutions party thereto.
(16) 21.1 List of subsidiaries.
27.1 Financial Data Schedules - Filed only with the EDGAR
version.
- ---------------------------------
# Management contracts or compensatory plans.
(1) Incorporated by reference to the same numbered Exhibit to
Registrant's Registration Statement on
Form S-1 File No. 33-55185 filed with the Commission on
November 14, 1994
(2) Incorporated by reference to Exhibit 2.1 to Registrant's Current
Report on Form 8-K filed on May 6, 1996.
(3) Incorporated by reference to the same numbered Exhibit to the
Registrant's Current Report on Form 8-K filed August 15, 1994.
(4) Incorporated by reference to Exhibit 3.1 to Registrant's
Quarterly Report on Form 10-Q filed on June 12, 1996.
(5) Incorporated by reference to Exhibit 10.2 to the Registrant's
Current Report on Form 8-K filed August 15, 1994.
(6) Incorporated by reference to Exhibit 4.1 to Registrant's Current
Report on Form 8-K filed on May 6, 1996.
(7) Incorporated by reference to Exhibit 4.2 to Registrant's Current
Report on Form 8-K filed on May 6, 1996.
(8) Incorporated by reference to the Exhibit 10.4 to Registrant's
Annual Report on Form 10-K filed on October 20, 1994.
(9) Incorporated by reference to the Exhibit 10.7 to Registrant's
Annual Report on Form 10-K filed on October 17, 1995.
(10) Incorporated by reference to the Exhibit 10.8 to Registrant's
Registration Statement on Form S-1
File No. 33-55185 filed with the Commission on November 14, 1994
(11) Incorporated by reference to the Exhibit 10.9 to Registrant's
Registration Statement on Form S-1
File No. 33-55185 filed with the Commission on November 14, 1994
(12) Incorporated by reference to Exhibit 10.8 to Registrant's Annual
Report on Form 10-K filed on Otober 20, 1994.
(13) Incorporated by reference to the Exhibit 10.11 to Registrant's
Annual Report on Form 10-K filed on October 17, 1995.
(14) Incorporated by reference to Exhibit 10.1 to Registrant's
Current Report on Form 8-K filed on May 6, 1996.
(15) Incorporated by reference to Exhibit 10.2 to Registrant's
Current Report on Form 8-K filed on May 6, 1996.
(16) Incorporated by reference to the Exhibit 21.1 to Registrant's
Registration Statement on Form S-4 File No. 333-06693 filed with
the Commission on July 30, 1996
E-2
<PAGE>
INDEX TO FINANCIAL STATEMENTS
Page
Ferrellgas, L.P. and Subsidiaries
Independent Auditors' Report......................................F-2
Consolidated Balance Sheets - July 31, 1996 and 1995..............F-3
Consolidated Statements of Earnings- Years ended July
31, 1996 and 1995,
One month ended July 31, 1994, Eleven months ended
June 30, 1994 (Predecessor)..................................F-4
Consolidated Statements of Stockholder's Equity/Partners'
Capital -
Years ended July 31, 1996 and 1995, One month ended
July 31, 1994, and
Eleven months ended June 30, 1994 (Predecessor)..............F-5
Consolidated Statements of Cash Flows - Year ended
July 31, 1996 and 1995, One month ended July 31, 1994, and
Eleven months ended June 30, 1994 (Predecessor)..............F-6
Notes to Consolidated Financial Statements........................F-7
Ferrellgas Finance Corp.
Independent Auditors' Report......................................F-18
Balance Sheets - July 31, 1996 and 1995...........................F-19
Statements of Earnings - Years ended July 31, 1996 and
1995 and the Period from Inception to July 31, 1994...............F-20
Statements of Stockholder's Equity - Years ended July
31, 1996 and 1995 and the Period from Inception to
July 31, 1994.....................................................F-21
Statements of Cash Flows - Years ended July 31, 1996
and 1995 and the Period from Inception to July 31,1994............F-22
Notes to Financial Statements.....................................F-23
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Partners of
Ferrellgas, L.P.
Liberty, Missouri
We have audited the accompanying consolidated balance sheets of Ferrellgas, L.P.
(formerly Ferrellgas, Inc.) and subsidiaries as of July 31, 1996 and 1995, and
the related consolidated statements of earnings, partners' capital and cash
flows for the years ended July 31, 1996 and 1995 and for the one month ended
July 31, 1994 (Successor) and the eleven months ended June 30, 1994
(Predecessor). These financial statements are the responsibility of the
Partnership's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Ferrellgas, L.P. and subsidiaries
as of July 31, 1996 and 1995, and the results of their operations and their cash
flows for the years ended July 31, 1996 and 1995 and for the one month ended
July 31, 1994 (Successor) and the eleven months ended June 30, 1994
(Predecessor) in conformity with generally accepted accounting principles.
DELOITTE & TOUCHE LLP
Kansas City, Missouri
September 18, 1996
F-2
<PAGE>
FERRELLGAS, L.P. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except unit data)
<TABLE>
<CAPTION>
ASSETS July 31, 1996 July 31, 1995
- ---------------------------------------------------------- -------------- --------------
Current Assets:
<S> <C> <C>
Cash and cash equivalents $ 13,769 $ 29,877
Accounts and notes receivable (net of
allowance for doubtful accounts of $1,169 and
$874 in 1996 and 1995, respectively) 70,118 58,239
Inventories 41,395 44,090
Prepaid expenses and other current assets 6,482 5,884
-------------- --------------
Total Current Assets 131,764 138,090
Property, plant and equipment, net 403,732 345,642
Intangible assets, net 107,960 86,886
Other assets, net 6,942 7,978
-------------- --------------
Total Assets $650,398 $578,596
============== ==============
LIABILITIES AND PARTNERS' CAPITAL
- ----------------------------------------------------------
Current Liabilities:
Accounts payable $ 48,400 $ 57,729
Other current liabilities 37,695 31,432
Short-term borrowings 25,520 20,000
-------------- --------------
Total Current Liabilities 111,615 109,161
Long-term debt 279,112 338,188
Other liabilities 12,402 11,398
Contingencies and commitments
Partners' Capital
Limited partner 244,771 118,638
General partner 2,498 1,211
-------------- --------------
Total Partners' Capital 247,269 119,849
-------------- --------------
Total Liabilities and Partners' Capital $650,398 $578,596
============== ==============
</TABLE>
See notes to consolidated financial statements
F-3
<PAGE>
FERRELLGAS, L.P. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(in thousands)
<TABLE>
<CAPTION>
For the year ended July 31, 1994
--------------------------------
For the year For the year One month Eleven months
ended ended ended ended
July 31, 1996 July 31, 1995 July 31, 1994 June 30, 1994
---------------- ---------------- ---------------- ----------------
(Predecessor)
Revenues:
<S> <C> <C> <C> <C>
Gas liquids and related product sales $612,593 $565,607 $22,411 $477,285
Other 41,047 30,829 2,155 24,705
---------------- ---------------- ---------------- ----------------
Total revenues 653,640 596,436 24,566 501,990
Cost of product sold (exclusive of
depreciation, shown separately below) 356,314 339,641 13,211 256,095
---------------- ---------------- ---------------- ----------------
Gross profit 297,326 256,795 11,355 245,895
Operating expense 179,462 153,225 10,078 135,058
Depreciation and amortization expense 37,024 32,014 2,383 26,452
General and administrative expense 13,221 11,357 935 8,923
Vehicle leases expense 5,113 4,271 350 3,940
---------------- ---------------- ---------------- ----------------
Operating income (loss) 62,506 55,928 (2,391) 71,522
Interest expense (33,822) (31,993) (2,662) (53,693)
Interest income (including related parties of $1,108
in eleven months ended June 30, 1994) 1,666 1,268 73 3,599
Loss on disposal of assets (1,586) (1,139) (97) (1,215)
---------------- ---------------- ---------------- ----------------
Earnings (loss) before income taxes,
and extraordinary loss 28,764 24,064 (5,077) 20,213
Income tax provision - - - 7,876
---------------- ---------------- ---------------- ----------------
Earnings (loss) before extraordinary loss 28,764 24,064 (5,077) 12,337
Extraordinary loss on early extinguishment of debt,
net of tax benefit of $531 in eleven months ended
June 30, 1994 975 - 60,062 867
---------------- ---------------- ---------------- ----------------
Net earnings (loss) $ 27,789 $ 24,064 $ (65,139) $ 11,470
================ ================ ================ ================
</TABLE>
See notes to consolidated financial statements
F-4
<PAGE>
FERRELLGAS, L.P. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDER'S EQUITY / PARTNERS' CAPITAL
(in thousands)
<TABLE>
<CAPTION>
Number of Additional Total
Common Common paid-in Accumulated stockholder's
Shares stock capital deficit equity
------------- ----------- ------------- ------------------------------
<S> <C> <C> <C> <C> <C>
August 1, 1993 (Predecessor) 1.0 $1 $32,863 $(21,505) $11,359
Net earnings - - - 11,470 11,470
------------- ----------- ------------- ------------------------------
June 30, 1994 (Predecessor) 1.0 $1 $32,863 $(10,035) $22,829
============= =========== ============= ==============================
Limited General Total partners'
partner partner capital
------------- ------------------------------
April 22, 1994 $ - $- $ -
Contributions in connection with
formation of the Partnership 185,874 1,897 187,771
Net loss (64,481) (658) (65,139)
------------- ------------------------------
July 31, 1994 121,393 1,239 122,632
Assets contributed in connection
with acquisitions 7,226 74 7,300
Additions to capital in connection
with acquisitions 6,666 69 6,735
Quarterly distributions (51,654) (528) (52,182)
Adjustments to capital related
to resolution of income tax
contingencies 11,186 114 11,300
Net earnings 23,821 243 24,064
------------- ------------------------------
July 31, 1995 118,638 1,211 119,849
Cash contributed in connection
with debt offering 156,000 1,592 157,592
Assets contributed in connection
with acquisitions 614 6 620
Additions to capital in connection
with acquisitions 4,873 50 4,923
Quarterly distributions (62,863) (641) (63,504)
Net earnings 27,509 280 27,789
------------- ----------------- -------------
July 31, 1996 $244,771 $2,498 $247,269
============= ================= =============
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE>
Ferrellgas, L.P. and Subsidiaries
Consolidated Statements of Cash Flows
(in thousands)
<TABLE>
<CAPTION>
For the year ended July 31, 1994
--------------------------------
For the year For the year One month Eleven months
ended ended ended ended
July 31, 1996 July 31, 1995 July 31, 1994 June 30, 1994
-------------- --------------- --------------- ----------------
(Predecessor)
Cash Flows From Operating Activities:
<S> <C> <C> <C> <C>
Net earnings (loss) $27,789 $24,064 $(65,139) $11,470
Reconciliation of net earnings (loss) to net
cash from operating activities:
Depreciation and amortization 37,024 32,014 2,383 26,452
Extraordinary loss 975 - 60,062 867
Other 4,478 3,191 22 5,130
Changes in operating assets and liabilities net of
effects from business acquisitions:
Accounts and notes receivable (4,849) (906) 196 (816)
Inventories 7,612 7,388 (5,631) (14,279)
Prepaid expenses and other current assets 765 (3,497) 618 (763)
Accounts payable (10,576) 5,246 (2,809) 16,231
Accrued interest expense (2,730) 10,680 (3,448) (4,765)
Other current liabilities 3,649 (11,704) 1,715 7,001
Other liabilities 259 (446) (35) (1,072)
Deferred income taxes - - - 7,667
-------------- --------------- --------------- ----------------
Net cash provided (used) by operating activities 64,396 66,030 (12,066) 53,123
-------------- --------------- --------------- ----------------
Cash Flows From Investing Activities:
Business acquisitions (8,116) (19,677) (874) (2,451)
Cash from acquired company 9,620 - - -
Capital expenditures (13,011) (19,722) (1,894) (7,826)
Other 3,109 173 31 26
-------------- --------------- --------------- ----------------
Net cash used by investing activities (8,398) (39,226) (2,737) (10,251)
-------------- --------------- --------------- ----------------
Cash Flows From Financing Activities:
Net additions to short-term borrowings 5,520 17,000 3,000 -
Additions to long-term debt 62,268 85,000 265,000 -
Reductions of long-term debt (234,082) (61,400) (477,903) (13,640)
Distributions (63,504) (52,182) - -
Contributions from partners 157,690 - -
Additional payments to retire debt - - (48,857) (1,190)
Additions to financing costs - - (6,575) (51)
Net issuance of Common Units - - 255,006
Cash transfer from predecessor company - - 39,791
Other 2 120 (124) (6,330)
-------------- --------------- --------------- ----------------
Net cash provided (used) by financing activities (72,106) (11,462) 29,338 (21,211)
-------------- --------------- --------------- ----------------
Increase (decrease) in cash and cash equivalents (16,108) 15,342 14,535 21,661
Cash and cash equivalents - beginning of period 29,877 14,535 - 32,706
-------------- --------------- --------------- ----------------
Cash and cash equivalents - end of period $13,769 $29,877 $ 14,535 $54,367
============== =============== =============== ================
Cash paid for interest $ 34,994 $ 19,918 $ 6,093 $ 55,681
============== =============== =============== ================
</TABLE>
See notes to consolidated financial statements
F-6
<PAGE>
FERRELLGAS, L.P.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
JULY 31, 1996
A. Partnership Organization and Formation
Ferrellgas, L.P. (the "Partnership" or "Operating Partnership" or "OLP") was
formed April 22, 1994, and is a Delaware limited partnership. The Operating
Partnership was formed to acquire, own and operate the propane business and
assets of Ferrellgas, Inc. (the "Company" or "General Partner"). Ferrellgas
Partners, L.P. (the "Master Partnership" or "MLP") is a publicly traded
limited partnership and holds a 98.9899% interest in the Partnership as the
sole limited partner. The Company holds a 1.0101% general partner interest
in the Operating Partnership and performs all management functions required
for the Partnership.
On July 5, 1994, the Master Partnership completed an initial public offering
of 13,100,000 Common Units representing limited partner interests (the
"Common Units") at $21 per Common Unit. As of the date of the offering, the
13,100,000 Common Units represented a 41.8% limited partner interest in the
Partnership. Concurrent with the closing of the offering, the Company
contributed all of its propane business and assets to the Master Partnership
(excluding approximately $39,000,000 in cash, payables to or receivables
from its parent and affiliates and an investment in the Class B Stock of
Ferrell Companies, Inc.) in exchange for 1,000,000 Common Units, 16,593,721
Subordinated Units and Incentive Distribution Rights, representing
additional limited partner interests in the Master Partnership, as of the
date of the offering, as well as a 2% general partner interest in the Master
Partnership and the Partnership on a combined basis.
In connection with the contribution of the propane business and assets by
the Company, the Operating Partnership assumed all of the liabilities,
whether known or unknown, associated with such assets (other than income tax
liabilities). The net book value of the assets contributed to the
Partnership, adjusted for the settlement of a tax contingency (see Note F),
is reported below:
(In thousands)
Total assets conveyed $509,535
Total liabilities assumed 565,471
--------------
Net liabilities $ (55,936)
==============
Supplementary Pro Forma Consolidated Statements of Earnings (Unaudited): The
following pro forma consolidated statement of earnings for the fiscal year
ended July 31, 1994, was derived from the historical statement of earnings
of the Company for the eleven months ended June 30, 1994, and the statement
of earnings of the Partnership from inception to July 31, 1994. The pro
forma consolidated statements of earnings of the Partnership should be read
in conjunction with the consolidated financial statements of the Partnership
and the Company and the notes thereto. The objective of this data is to show
the effects on the historical financial information as if the Partnership
formation had occurred on August 1, 1993.
F-7
<PAGE>
The following supplementary pro forma consolidated statements of earnings are
for comparative purposes and are not indicative of the results of future
operations of the Partnership:
<TABLE>
<CAPTION>
(in thousands, except unit amounts)
Audited Audited Pro Forma
July 31, 1996 July 31, 1995 July 31, 1994
------------------ ------------------ -----------------
Revenues:
<S> <C> <C> <C>
Gas liquids and related product sales $612,593 $565,607 $499,696
Other 41,047 30,829 26,860
------------------ ------------------ -----------------
Total revenues 653,640 596,436 526,556
Cost of product sold (exclusive of
depreciation, shown separately below) 356,314 339,641 269,306
------------------ ------------------ -----------------
Gross profit 297,326 256,795 257,250
Operating expense 179,462 153,225 145,136
Depreciation and amortization expense 37,024 32,014 28,835
General and administrative expense 13,221 11,357 10,358 (1)
Vehicle leases expense 5,113 4,271 4,290
------------------ ------------------ -----------------
Operating income 62,506 55,927 68,631
Interest expense (33,822) (31,993) (28,130) (2)
Interest income 1,666 1,268 1,123 (3)
Loss on disposal of assets (1,586) (1,139) (1,312)
------------------ ------------------ -----------------
Earnings before extraordinary loss 28,764 24,063 40,312
================== ================== =================
<FN>
(1) Reflects estimated general and administrative costs associated with the Partnership.
(2) Reflects the adjustment to interest expense resulting from the early retirement of debt, net of
additional borrowings.
(3) Reflects the reduction of interest income to the Partnership as a
result of lower cash balances available for short-term investment
opportunities.
</FN>
</TABLE>
B. Summary of Significant Accounting Policies
(1) Nature of operations: The Partnership is engaged primarily in the sale,
distribution, marketing and trading of propane and other natural gas liquids
throughout the United States. The retail market is seasonal because propane
is used primarily for heating in residential and commercial buildings. The
Partnership serves more than 800,000 residential, industrial/commercial and
agricultural customers.
(2) Accounting estimates: 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. Significant estimates impacting the financial
statements include reserves that have been established for product liability
and other claims.
F-8
<PAGE>
(3) Principles of consolidation: The accompanying consolidated financial
statements present the consolidated financial position, results of operations
and cash flows of the Partnership and its wholly-owned subsidiaries, Ferrellgas
Finance Corp. and Stratton Insurance Company. All material intercompany profits,
transactions and balances have been eliminated.
(4) Cash and cash equivalents: For purposes of the Consolidated Statements
of Cash Flows, the Partnership considers all highly liquid debt instruments
purchased with an original maturity of three months or less to be cash
equivalents.
(5) Inventories: Inventories are stated at the lower of cost or market
using average cost and actual cost methods.
(6) Property, plant and equipment and intangible assets: Property, plant and
equipment is stated at cost less accumulated depreciation. Expenditures for
maintenance and routine repairs are expensed as incurred. Depreciation is
calculated using the straight-line method based on estimated useful lives of
the assets ranging from two to thirty years. Intangible assets, consisting
primarily of customer location values and goodwill, are stated at cost, net
of amortization calculated using the straight-line method over periods
ranging from 15 to 40 years. Accumulated amortization of intangible assets
totaled $95,801,000 and $81,995,000 as of July 31, 1996 and 1995,
respectively.
(7) Forward, futures and option contracts: The Partnership also enters into
forward and futures purchase/sale agreements and options involving propane
and related products which are used both for trading and overall risk
management purposes. To the extent such contracts are entered into at fixed
prices and thereby subject the Partnership to market risk, the contracts are
accounted for on a mark-to-market basis. Mark to market adjustments on
trading positions are recorded through income.
(8) Income taxes: The Partnership is a limited partnership. As a result, the
Partnership's earnings or loss for Federal income tax purposes is included
in the tax returns of the individual partners. Accordingly, no recognition
has been given to income taxes in the accompanying financial statements of
the Partnership. Net earnings for financial statement purposes may differ
significantly from taxable income reportable to the Master Partnership's
unitholders as a result of differences between the tax basis and financial
reporting basis of assets and liabilities and the taxable income allocation
requirements under the Partnership agreement.
The Predecessor filed a consolidated Federal income tax return with its
parent and affiliates. Income taxes were computed as though each company
filed its own income tax return in accordance with the tax sharing
agreement. Deferred income taxes were provided as a result of temporary
differences between financial and tax reporting as described in Note M,
using the asset/liability method. Deferred income taxes were recognized for
the tax consequences of temporary differences between the financial
statement carrying amounts and the tax basis of existing assets and
liabilities.
(9) Adoption of new accounting standard: Effective August 1, 1996, SFAS No.
123, "Accounting for Stock-Based Compensation," will require increased
disclosure of compensation expense arising from stock compensation plans
(including the Partnership's unit option plan.) The Statement encourages
rather than requires entities to adopt a new method that accounts for stock
compensation awards based on their estimated fair value at the date they are
granted. Entities will be permitted, however, to continue accounting under
APB Opinion No. 25 which requires compensation cost to be recognized based
on the excess, if any, between the quoted market price of the units at the
date of grant and the amount an employee must pay to acquire the units. The
Partnership will continue to apply APB No. 25 in its consolidated financial
statements and will disclose pro forma net income and earnings per unit in a
footnote to its consolidated financial statements, determined as if the new
method were applied.
F-9
<PAGE>
C. 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 by the Partnership in an amount equal to 100% of its Available
Cash will generally be made 98.9899% to the Master Partnership and 1.0101%
to the General Partner. The Partnership makes distributions of all of its
Available Cash 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.
D. Supplemental Balance Sheet Information
<TABLE>
<CAPTION>
Inventories consist of:
(in thousands) 1996 1995
-------------- --------------
<S> <C> <C>
Liquefied propane gas and related products $33,366 $37,550
Appliances, parts and supplies 8,029 6,540
-------------- --------------
$41,395 $44,090
============== ==============
</TABLE>
In addition to inventories on hand, the Partnership enters into
contracts to buy product for supply purposes. All such contracts have
terms of less than one year and call for payment based on market prices
at date of delivery.
Property, plant and equipment consist of:
<TABLE>
<CAPTION>
(in thousands) 1996 1995
------------- --------------
<S> <C> <C>
Land and improvements $ 26,024 $ 21,380
Buildings and improvements 39,376 29,117
Vehicles 55,860 46,199
Furniture and fixtures 22,074 23,336
Bulk equipment and district facilities 43,203 37,086
Tanks and customer equipment 403,770 357,167
Other 5,800 6,825
------------- --------------
596,107 521,110
Less: accumulated depreciation 192,375 175,468
------------- --------------
$403,732 $345,642
============== =============
</TABLE>
Depreciation expense totaled $25,101,000, $21,649,000, $1,602,000, and
$17,659,000, for the years ended July 31, 1996, 1995, the one month ended July
31, 1994, and the eleven months ended June 30, 1994, respectively.
F-10
<PAGE>
<TABLE>
<CAPTION>
Other current liabilities consist of:
(in thousands) 1996 1995
-------------- -------------
<S> <C> <C>
Accrued insurance $ 3,157 $ 2,345
Accrued interest 10,242 12,972
Accrued payroll 7,062 4,036
Other 17,234 12,079
-------------- --------------
$37,695 $31,432
============== =============
E. Long-Term Debt
Long-term debt consists of:
(in thousands) 1996 1995
------------- ------------
Senior Notes
Fixed rate, 10%, due 2001 (1) $200,000 $200,000
Floating rate, 9.3125% due 2001 (1) - 50,000
Credit Agreement
Term loan, 6%, due 2001 (2) 50,000 -
Term loan, 7.3125%, due 1997 - 15,000
Revolving credit loans, 8.25%, due 1999 (2) 18,980 70,000
Notes payable, 5.7% and 5.6% weighted average interest rates,
respectively, due 1996 to 2006 (3) 11,742 3,983
------------- ------------
284,722 338,983
Less: current portion 1,610 795
------------- ------------
$279,112 $338,188
============= ============
</TABLE>
(1) The OLP fixed rate Senior Notes, issued in June, 1994, are general
unsecured obligations of the OLP and rank on an equal basis in
right of payment with all senior indebtedness of the OLP and senior
to all subordinated indebtedness of the OLP. The floating rate
senior notes bore interest at the London Interbank Offered Rate
("LIBOR") plus 3.125% and had mandatory sinking fund payments of
$5,000,000 in 1999 and 2000. On July 31, 1996, the OLP refinanced
these notes with an unsecured term loan from its amended and
restated Credit Facility bearing interest at LIBOR plus a certain
percentage depending on various factors. The current rate at July
31, 1996 was 6.0%.
(2) On July 31, 1996, the OLP amended and restated its $205,000,000
Credit Facility (the "Credit Facility") with a major bank, as
Agent. The unsecured Credit Facility now consists of a $50,000,000
term loan facility, a $185,000,000 revolving credit facility for
general corporate, working capital and acquisition purposes (of
which $50,000,000 is available to support letters of credit) and a
$20,000,000 revolving working capital facility, which is subject to
an annual reduction in outstandings to $0 for 30 consecutive days.
All borrowings under the current pricing arrangement bear interest
at either LIBOR plus 0.50% or the Bank's Base rate, depending on
the nature of the borrowing. The Bank's Base rate at July 31, 1996
was 8.25%. To offset the variable rate characteristic of the Credit
Facility, the OLP entered into interest rate collar agreements,
expiring between June and December 1998, with three major banks
limiting interest rates on a notional amount of $125,000,000 to
between 4.9% and 6.5%.
F-11
<PAGE>
(3) The notes payable are secured by approximately $4,714,000 and
$1,413,000 of property and equipment at July 31, 1996 and 1995,
respectively.
At July 31, 1996 and 1995, $25,520,000 and $20,000,000, respectively, of
short-term borrowings were outstanding under the revolving line of credit
and letters of credit outstanding, used primarily to secure obligations
under certain insurance arrangements, totaled $26,824,000 and $24,471,000,
respectively.
On April 26, 1996, the Master Partnership issued $160,000,000 of 9 3/8%
Senior Notes due 2006 ("MLP Senior Notes"). The MLP Senior Notes will
become guaranteed by the OLP on a senior subordinated basis if certain
conditions are met. The OLP's Credit Agreement related to the amended and
restated Credit Facility ("Credit Agreement") and the OLP Indenture
relating to the $200,000,000 Senior Notes ("OLP Indenture") currently
prohibit the OLP from guaranteeing any indebtedness unless, among meeting
other conditions, the fixed charge coverage ratio for the OLP meets certain
levels at prescribed dates. Currently the OLP does not meet such conditions
and, therefore, there can be no assurance as to whether or when this
guarantee will occur.
The OLP Indenture and Credit Agreement contain various restrictive
covenants applicable to the Operating Partnership and its subsidiaries, the
most restrictive relating to additional indebtedness, sale and disposition
of assets, and transactions with affiliates. In addition, the Operating
Partnership is prohibited from making cash distributions of the Minimum
Quarterly Distribution if a default or event of default exists or would
exist upon making such distribution, or if the Operating Partnership fails
to meet certain coverage and capital expenditure tests. The Operating
Partnership is in compliance with all requirements, tests, limitations and
covenants related to the Senior Note Indenture and Credit Agreement.
Annual principal payments on long-term debt for each of the next five
fiscal years are $1,610,000 in 1997, $2,356,000 in 1998, $20,619,000 in
1999, $1,685,000 in 2000, and $52,514,000 in 2001.
During fiscal year 1996, the Partnership recognized an extraordinary loss
from the write off of unamortized financing costs of approximately
$975,000, resulting from the early extinguishment of $50,000,000 of its
floating rate senior notes. During the one month ended July 31, 1994, the
Partnership recognized an extraordinary loss from the debt premium and
write off of financing costs of $60,062,000, resulting from the early
extinguishment of $477,600,000 of indebtedness of the Company assumed by
the Operating Partnership. During the eleven months ended June 30, 1994,
the Predecessor recognized an extraordinary loss from debt premium and
write off of financing costs of approximately $867,000, net of income tax
benefit of $531,000, resulting from the early extinguishment of $11,900,000
of its fixed rate senior notes.
F. Partners' Capital
Partners' capital consists of a 98.9899% limited partner interest held by
the Master Partnership and a 1.0101% General Partner interest held by
Ferrellgas, Inc. In connection with the MLP Senior Note offering mentioned
in Note E, the Master Partnership contributed $156,000,000 in a cash
transaction to the OLP, thereby increasing its limited partner interest.
The General Partner then contributed $1,592,000 in cash to the OLP to
maintain its 1.0101% equity ownership.
F-12
<PAGE>
In connection with the formation of the Partnership, the General Partner
contributed certain assets and liabilities. Pursuant to an examination by
the Internal Revenue Service, certain adjustments which relate to these
contributed assets resulted in additional deferred taxes recorded by the
General Partner in fiscal 1995. This noncash adjustment retroactively
increased the basis of the assets the General Partner contributed to the
Operating Partnership by $11,300,000 which, in turn, caused an increase to
the General Partner's contributed capital which was allocated pro rata
among all partners. In addition, Operating Partnership goodwill also
increased by $11,300,000 (to be amortized prospectively over a period of 15
years). These adjustments were not material to the Partnership's financial
position or its results of operations or liquidity, nor have they impacted
the limited partners' tax basis in the Partnership units.
G. Transactions with Related Parties
The Partnership has no employees and is managed and controlled by the
General Partner. Pursuant to the Partnership Agreement, the General Partner
is entitled to reimbursement for all direct and indirect expenses incurred
or payments it makes on behalf of the Partnership, and all other necessary
or appropriate expenses allocable to the Partnership or otherwise
reasonably incurred by the General Partner in connection with operating the
Partnership's business. These costs, which totaled $109,637,000 and
$100,750,000 for the years ended July 31, 1996 and 1995, respectively, and
$7,561,000 from inception to July 31, 1994, include compensation and
benefits paid to officers and employees of the General Partner, and general
and administrative costs. In addition, the conveyance of the net assets of
the Company to the Partnership described in Note A included the assumption
of specific liabilities related to employee benefit and incentive plans for
the benefit of the officers and employees of the General Partner. See Note
L for discussion of transactions involving acquisitions related to the
General Partner and the Operating Partnership.
A. Andrew Levison, a director of the General Partner is a Managing Director
of Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"). DLJ acted
as an underwriter with regard to the private placement of $160,000,000
Senior Secured Notes issued in April 1996 and was paid fees of $4,000,000
in 1996. No fees were paid in 1995. DLJ acted as an underwriter with regard
to the public offering of Common Units and Senior Notes, and was paid total
fees of $5,100,000 during 1994.
The law firm of Smith, Gill, Fisher & Butts, a Professional Corporation was
general counsel to the Partnership, General Partner, Ferrell Companies,
Inc. ("Ferrell") and their respective subsidiaries and affiliates during
the pro forma fiscal year of the Partnership and the Predecessor ended July
31, 1994. David S. Mouber, a director of Ferrell through July 31, 1994, was
a member of such law firm. The Partnership, Ferrell and their respective
subsidiaries paid such firm fees of $1,394,000 during the pro forma fiscal
year ended July 31, 1994.
H. Contingencies and Commitments
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
known contingent claims that are likely to have a material adverse effect
on the results of operations or financial condition of the Partnership.
Certain property and equipment is leased under noncancellable operating
leases which require fixed monthly rental payments and which expire at
various dates through 2016. Rental expense under these leases totaled
$12,054,000, $11,233,000, $725,000, and $9,556,000 for the years ended July
31, 1996 and 1995, the one month ended July 31, 1994, and the eleven months
ended June 30, 1994, respectively. Future minimum lease commitments for
such leases are $10,566,000 in 1997, $7,336,000 in 1998, $5,377,000 in
1999, $3,871,000 in 2000, $1,714,000 in 2001 and $601,000 thereafter.
F-13
<PAGE>
I. Employee Benefits
The Partnership has no employees and is managed and controlled by the
General Partner. The Partnership assumed all liabilities, which included
specific liabilities related to the following employee benefit plans for
the benefit of the officers and employees of the General Partner.
The General Partner and its parent, Ferrell Companies, Inc., ("FCI") have a
defined contribution profit-sharing plan which covers substantially all
employees with more than one year of service. Contributions are made to the
plan at the discretion of FCI's Board of Directors. This plan, which
qualifies under section 401(k) of the Internal Revenue Code, also provides
for matching contributions under a cash or deferred arrangement based upon
participant salaries and employee contributions to the plan. Contributions
for the years ended July 31, 1996 and July 31, 1995, were $1,160,000 and
$1,300,000 under the profit sharing provision and were $1,388,000 and
$1,407,000 under the 401(k) provision. There were no contributions under
the profit sharing provision or 401(k) provision of the plan from inception
to July 31, 1994. Contributions during the eleven months ended June 30,
1994 were $1,200,000 under the profit sharing provision, and $1,445,000
under the 401(k) provision.
J. Unit Options
On October 14, 1994, the General Partner adopted the Ferrellgas, Inc. Unit
Option Plan (the "Unit Option Plan"), which currently authorizes the
issuance of options (the "Unit Options") covering up to 850,000 of the
Master Partnership's Subordinated Units to certain officers and employees
of the General Partner. The Unit Options have the following
characteristics: 1) exercise prices ranging from $16.80 to $21.67 per unit,
which is an estimate of the fair market value of the Subordinated Units at
the time of grant, 2) vest immediately or over a one to five year period,
3) exercisable beginning after July 31, 1999, assuming the subordination
period has elapsed, and 4) expire on the tenth anniversary of the date of
grant. Upon conversion of the Subordinated Units held by the General
Partner and its affiliates, the Unit Options granted will convert to Common
Unit Options.
<TABLE>
<CAPTION>
Units Price per Unit
---------------------- --------------------------
Outstanding, July 31, 1994 - -
<S> <C> <C> <C>
Granted 775,000 $16.80-$18.54
Canceled (73,500) 16.80
---------------------- --------------------------
Outstanding, July 31, 1995 701,500 16.80 - 18.54
Granted 99,750 19.88 - 21.67
Canceled (132,825) 16.80 - 19.88
---------------------- --------------------------
Outstanding, July 31, 1996 668,425 $16.80 - $21.67
---------------------- --------------------------
Options exercisable, July 31, 1996 0
---------------------- --------------------------
Options available for future grants 181,575
---------------------- --------------------------
</TABLE>
K. Disclosures About Off Balance Sheet Risk and Fair Value of Financial
Instruments
The carrying amount of cash and cash equivalents approximates fair value
because of the short maturity of the instruments. Short-term borrowings
approximate fair value as of July 31, 1996 and 1995. The estimated fair
value of the Partnership's long-term debt was $285,722,000 and $347,485,000
as of July 31, 1996 and 1995, respectively. The fair value is estimated
based on quoted market prices adjusted for discounted cash flows.
F-14
<PAGE>
Interest Rate Collar Agreements. The Partnership has entered into various
interest rate collar agreements involving the exchange of fixed and
floating interest payment obligations without the exchange of the
underlying principal amounts. At July 31, 1996, the total notional
principal amount of these agreements was $125,000,000. The counterparties
to these agreements are large financial institutions. The interest rate
collar agreements subject the Partnership to financial risk that will vary
during the life of these agreements in relation to market interest rates.
The mark to market adjustment applicable to the portion of the notional
amount in excess of variable rate indebtedness at July 31, 1996 was not
material to the financial position or the results of operations of the
Partnership.
Option Contracts. The Partnership is a party to certain option contracts,
involving various liquefied petroleum products, for overall risk management
purposes in connection with its trading activities. Contracts are executed
with private counterparties and to a lesser extent on national mercantile
exchanges. Open contract positions are summarized below.
Forward and Futures Contracts. The Partnership is a party to certain
forward and futures contracts for trading purposes. Net gains from trading
activities were $7,323,000, $5,818,000, $331,000, and $6,458,000 for the
years ended July 31, 1996, 1995, the one month ended July 31, 1994, and the
eleven months ended June 30, 1994, respectively. Such contracts permit
settlement by delivery of the commodity. Open contract positions are
summarized below (assets are defined as purchases or long positions and
liabilities are sales or short positions).
As of July 31
(In thousands, except price per gallon data)
<TABLE>
<CAPTION>
Derivative Commodity Instruments Held for
Purposes Other than Trading Commodity Instruments Held for
(Options) Trading Purposes
(Forward and Futures)
------------------------------------------- ---------------------------------------------------
1996 1995 1996 1995
-------------------- ------------------- ----------------------- -----------------------
Asset Liab. Asset Liab. Asset Liab. Asset Liab.
--------- ---------- -------- ---------- ----------- ----------- ----------- -----------
Volume
<S> <C> <C> <C> <C> <C> <C> <C>
(gallons) - (21) 1,071 (9,765) 178,011 (153,990) 170,057 (129,198)
Price ((cent)/gal) - 30 16-36 16-36 24-65 24-2025 13-45 14-52
Maturity - 8/96-12/96 8/95-1/96 8/95-1/96 8/96-7/97 8/96-3/97 8/95-1/96 8/95-1/96
Dates
Contract
Amounts ($) - (1,575) 380 (3,572) 64,223 (62,917) 57,419 (43,605)
Fair Value ($) - (1,541) 340 (3,758) 65,972 (62,623) 57,463 (43,504)
Unrealized
gain(loss) ($) - 34 (40) (186) 1,749 294 44 101
</TABLE>
Risks related to these contracts arise from the possible inability of
counterparties to meet the terms of their contracts and changes in
underlying product prices. The Partnership attempts to minimize market risk
through the enforcement of its trading policies, which include total
inventory limits and loss limits, and attempts to minimize credit risk
through application of its credit policies.
F-15
<PAGE>
L. Acquisitions
On April 30, 1996, the General Partner consummated the purchase of all of
the stock of Skelgas Propane, Inc. ("Skelgas"), a subsidiary of Superior
Propane, Inc. of Toronto, Canada for a cash purchase price of $89,650,000,
subject to final working capital adjustments.
As of May 1, 1996, the General Partner (i) caused Skelgas and each of its
subsidiaries to be merged into the General Partner and (ii) transferred all
of the assets of Skelgas and its subsidiaries to the Operating Partnership.
In exchange, the Operating Partnership assumed substantially all of the
liabilities, whether known or unknown, associated with Skelgas and its
subsidiaries and their propane business (excluding income tax liabilities).
In consideration of the retention by the General Partner of certain income
tax liabilities, the Partnership issued 41,203 Common Units to the General
Partner. The liabilities assumed by the Operating Partnership included the
$89,650,000 loan agreement under which the General Partner borrowed funds
to pay the purchase price for Skelgas. Immediately following the transfer
of assets and related transactions described above, the Operating
Partnership repaid the loan with cash and borrowings under the Operating
Partnership's existing acquisition bank credit line. Certain working
capital adjustments occurred after the acquisition that resulted in a
reduction of the amount paid for the acquisition of Skelgas and the total
assets acquired. The total assets contributed to the Operating Partnership
(at the General Partner's cost basis) have been preliminarily allocated as
follows: (i) working capital of $17,951,000, (ii) property, plant and
equipment of $62,178,000 and (iii) and the balance to intangible assets. In
total, during the year ended July 31, 1996, the Partnership made
acquisitions and received contributions of businesses valued at
$128,165,000 (including working capital acquired of $19,362,000). This
amount was funded by $8,116,000 of cash payments and the following noncash
transactions: $108,120,000 debt assumed, $4,825,000 issuance of Partnership
units, and $7,104,000 other costs and consideration.
On November 1, 1994, the General Partner purchased all of the capital stock
of Vision Energy Resources, Inc. ("Vision") for a cash purchase price of
$45 million. Immediately following the closing of the purchase of Vision,
the General Partner (i) caused Vision and each of its subsidiaries to be
merged into the General Partner (except for a trucking subsidiary which
dividended substantially all of its assets to the General Partner) and (ii)
transferred all of the assets of Vision and its subsidiaries to the
Operating Partnership. As a result of the contribution, the Operating
Partnership assumed substantially all of the liabilities, whether known or
unknown, associated with Vision and its subsidiaries (excluding income tax
liabilities), including the obligation of the General Partner under a
$45,000,000 loan agreement under which the General Partner borrowed funds
to pay the purchase price for Vision. In consideration of the retention by
the General Partner of certain income tax liabilities, the Partnership
issued 138,392 Common Units to the General Partner. The Operating
Partnership also recorded a contribution of $7,300,000 from the General
Partner, representing the excess of the value of the assets over the
liabilities conveyed and the units issued to the General Partner. This
contribution is allocated to each partner based on their relative ownership
percentages following the closing of the Vision acquisition. In total,
during the year ended July 31, 1995, the Partnership made acquisitions and
received contributions of businesses valued at $80,651,000 (including
working capital acquired of $3,282,000). This amount was funded by
$19,677,000 cash payments and the following noncash transactions:
$45,000,000 debt assumed, $7,300,000 contributed capital, $6,600,000
issuance of Partnership units, and $2,074,000 other costs and
consideration.
F-16
<PAGE>
All transactions have been accounted for similar to purchase accounting and,
accordingly, the results of operations of all acquisitions have been
included in the consolidated financial statements from their dates of
contribution. The following pro forma financial information assumes the
Skelgas and Vision transactions occurred at the beginning of each of the
periods presented:
<TABLE>
<CAPTION>
(in thousands)
-------------------------------------------------------------
(unaudited) Pro Forma Year Pro Forma Year
Ended Ended July 31,
July 31, 1996 1995
----------------- -----------------
<S> <C> <C>
Total revenues $ 732,372 $684,340
Income before extraordinary loss 37,414 38,067
Net earnings 36,449 38,067
</TABLE>
M. Income Taxes (Predecessor)
As stated Note B, the Partnership's earnings or loss for Federal income tax
purposes is included in the tax returns of the individual partners of the
Master Partnership. Accordingly, no recognition has been given to income
taxes in the accompanying financial statements of the Partnership. For the
Predecessor period, income tax expense consisted of deferred taxes of
$7,136,000 and current taxes of $209,000. Nearly all of the expense was
allocated to operating activities. Deferred taxes result from temporary
differences in the recognition of income and expense for tax and financial
statement purposes. The significant temporary differences and related
deferred tax provision related to net operating loss carryforwards. For
Federal income tax purposes, the Company had net operating loss
carryforwards of approximately $201,000,000 at June 30, 1994 available to
offset future taxable income. These net operating loss carryforwards expire
at various dates through 2009. The difference between the effective tax
rate of 39% and the statutory federal rate of 35% was primarily state
income taxes.
F-17
<PAGE>
INDEPENDENT AUDITORS' REPORT
Board of Directors
Ferrellgas Finance Corp.
Liberty, Missouri
We have audited the accompanying balance sheets of Ferrellgas Finance Corp. (a
wholly owned subsidiary of Ferrellgas, L.P.), as of July 31, 1996 and 1995, and
the related statements of earnings, stockholder's equity and cash flows for the
years ended July 31, 1996 and 1995 and the period from inception (April 28,
1994) to July 31, 1994. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such financial statements present fairly, in all material
respects, the financial position of Ferrellgas Finance Corp. as of July 31, 1996
and 1995, and the results of its operations and its cash flows for the year
ended July 31, 1996 and 1995 and the period from inception (April 28, 1994) to
July 31, 1994 in conformity with generally accepted accounting principles.
DELOITTE & TOUCHE LLP
Kansas City, Missouri
September 18, 1996
F-18
<PAGE>
Ferrellgas Finance Corp.
(A wholly owned subsidiary of Ferrellgas, L.P.)
<TABLE>
<CAPTION>
ASSETS July 31, 1996 July 31, 1995
- ------------------------------------------------------------ -------------- ------------
<S> <C> <C>
Cash $1,000 $697
------------- ------------
Total Assets $1,000 $697
============= ============
LIABILITIES AND STOCKHOLDER'S EQUITY
- ------------------------------------------------------------
Payable to affiliate $ - $ 153
Common stock, $1.00 par value; 2,000 shares
authorized; 1,000 shares issued and outstanding 1,000 1,000
Additional paid in capital 545 -
Accumulated deficit (545) (456)
------------- ------------
Total Stockholder's Equity 1,000 544
------------- ------------
Total Liabilities and Stockholder's Equity $1,000 $697
============= ============
</TABLE>
See notes to financial statements.
F-19
<PAGE>
<TABLE>
<CAPTION>
Ferrellgas Finance Corp.
(A wholly owned subsidiary of Ferrellgas, L.P.)
Statement of Earnings
For the For the From
Year Ended Year Ended Inception to
July 31, July 31, July 31,
1996 1995 1994
--------------- ---------------- -------------
<S> <C> <C> <C>
Revenues $ - $ - $ -
General and administrative expense 89 456 -
--------------- ---------------- ---------------
Net loss $(89) $(456) $ -
=============== ================ ===============
</TABLE>
See notes to financial statements
F-20
<PAGE>
Ferrellgas Finance Corp.
(A wholly owned subsidiary of Ferrellgas, L.P.)
Statement of Stockholders Equity
<TABLE>
<CAPTION>
Common stock Additional Total
------------------------------- Paid in Accumulated stockholder's
Shares Dollars Capital deficit equity
-------------- -------------- --------------- -------------- --------------
April 28, 1994 - $ - $ - $ - $ -
<S> <C> <C> <C>
Common stock issued 1,000 1,000 - - 1,000
-------------- -------------- --------------- -------------- --------------
July 31, 1994 1,000 1,000 - - 1,000
Net loss - - - (456) (456)
-------------- -------------- --------------- -------------- --------------
July 31, 1995 1,000 1,000 - (456) 544
Capital contribution 545 545
Net loss - - - (89) (89)
-------------- -------------- --------------- -------------- --------------
July 31, 1996 1,000 $1,000 $ 545 $(545) $1,000
============== ============== =============== ============== ==============
</TABLE>
See notes to financial statements
F-21
<PAGE>
Ferrellgas Finance Cdorp.
(A wholly owned subsidiary of Ferrellgas, L.P.)
Statements of Cash Flows
<TABLE>
<CAPTION>
For the year For the year From
ended ended Inception to
July 31, 1996 July 31, 1995 July 31, 1994
----------------- --------------------------------
Cash Flows From Operating Activities:
<S> <C> <C> <C>
Net loss $ (89) $(456) $ -
---------------
----------------- ---------------
Cash used by operating activities (89) (456) -
----------------- --------------- ---------------
Cash Flows From Financing Activities:
Issuance of common stock - - 1,000
Capital contribution 545 - -
Net advance from affiliate (153) 153 -
---------------
----------------- ---------------
Cash provided by financing activities 392 153 1,000
----------------- --------------- ---------------
Increase (decrease) in cash 303 (303) 1,000
Cash - beginning of period 697 1,000 -
----------------- --------------- ---------------
Cash - end of period $ 1,000 $ 697 $1,000
================= =============== ===============
</TABLE>
See notes to financial statements
F-22
<PAGE>
FERRELLGAS FINANCE CORP.
(A wholly owned subsidiary of Ferrellgas, L.P.)
NOTES TO FINANCIAL STATEMENTS
JULY 31, 1996
A. Formation
Ferrellgas Finance Corp. (the "Company"), a Delaware corporation, was
formed on April 28, 1994, and is a wholly-owned subsidiary of Ferrellgas, L.P.
(the "Partnership"). Ferrellgas, L.P. was formed April 22, 1994, as a Delaware
limited partnership. The Partnership was formed to acquire, own and operate
substantially all of the assets of Ferrellgas, Inc. ("Ferrellgas"). Ferrellgas
conveyed substantially all of its assets to the Partnership (excluding cash,
receivables from parent and affiliates and an investment in the Class B Stock of
Parent) and all of the liabilities, whether known or unknown, associated with
such assets (other than income tax liabilities).
The Partnership contributed $1,000 to the Company on May 20, 1994, in
return for common stock. There were no other transactions involving the
Company during the period ended July 31, 1994.
B. Commitment
In July, 1994, the Partnership issued 10% Fixed Rate Senior Notes (the
"Fixed Notes") due 2001 in the aggregate principal amount of $200,000,000
and Floating Rate Senior Notes (the "Floating Notes" and together with the
Fixed Notes the "Senior Notes") due 2001 in the aggregate principal amount
of $50,000,000. The $200,000,000 Fixed Rate Senior Notes are not redeemable
prior to August 1, 1999. Thereafter, the Partnership has the option to
redeem the notes, in whole or part, at a premium. The $50,000,000 aggregate
principal amount of Floating Notes were redeemed at the option of the
Partnership on August 1, 1996, in whole at a redemption price equal to 100%
of the principal amount, plus accrued and unpaid interest at the redemption
date. The Company is acting as co-obligor for the Senior Notes.
C. Income Taxes
Income taxes have been computed as though the Company files its own income
tax return. Deferred income taxes are provided as a result of temporary
between financial and tax reporting using the asset/liability method.
Deferred income taxes are recognized for the tax consequences of temporary
differences between the financial statement carrying amounts and tax basis
of existing assets and liabilities.
Due to the inability of the Company to utilize the deferred tax benefit of
$213 associated with the current year net operating loss carryforward of
$545, of which $456 expires July 31, 2010, and $35 expires July 31, 2011, a
valuation allowance has been provided on the full amount of the deferred
tax asset. Accordingly, there is no net deferred tax benefit for the years
ended July 31, 1996 and 1995 and there is no net deferred tax asset as of
July 31, 1996 and 1995.
F-23
<PAGE>
INDEX TO FINANCIAL STATEMENT SCHEDULES
Page
Ferrellgas, L.P. and Subsidiaries
- ---------------------------------
Independent Auditors' Report on Schedules.................................. S-2
Schedule II Valuation and Qualifying
Accounts for the Years ended July 31, 1996
and 1995, the One month ended July 31, 1994
and the Eleven months ended June 30, 1994.................................. S-3
S-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Partners of
Ferrellgas, L.P.
Liberty, Missouri
We have audited the consolidated financial statements of Ferrellgas, L.P.,
(formerly Ferrellgas, Inc.) and subsidiaries as of July 31, 1996 and 1995,
(Successor), and for the years ended July 31, 1996 and 1995, for the one month
ended July 31, 1994 (Successor), and the eleven months ended June 30, 1994
(Predecessor) and have issued our report thereon dated September 18, 1996. Our
audit also included the financial statement schedules listed at Item 14(a)2.
These financial statement schedules are the responsibility of the Partnership's
management. Our responsibility is to express an opinion based on our audit. In
our opinion, such financial statement schedules, when considered in relation to
the basic consolidated financial statements taken as a whole, present fairly in
all material respects the information therein set forth.
DELOITTE & TOUCHE LLP
Kansas City, Missouri
September 18, 1996
S-2
<PAGE>
Schedule II
Ferrellgas L.P. and Subsidiaries
Valuation and Qualifying Accounts
(in thousands)
<TABLE>
<CAPTION>
Balance at Charged to Deductions Balance
beginning cost/ Other (amounts at end
Description of period expenses Additions (A) charged-off) of period
- --------------------------------- ---------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful accounts $ 874 $ 1,151 $ 702 $ 1,558 $ 1,169
Accumulated amortization:
Intangible assets $ 81,995 $ 11,620 $ 2,946 $ 760 $ 95,801
Other assets $ 3,337 $ 1,581 $ 975 $ 1,407 $ 4,486
Year ended July 31, 1995
- -------------------------
Allowance for doubtful accounts $ 798 $ 1,191 $ 400 $ 1,515 $ 874
Accumulated amortization:
Intangible assets $ 68,489 $ 9,997 $ 3,509 $ - $ 81,995
Other assets $ 1,860 $ 368 $ 1,109 $ - $ 3,337
One month ended July 31, 1994 (B)
- ---------------------------------
Allowance for doubtful accounts $ 906 $ 119 $ - $ 227 $ 798
Accumulated amortization:
Intangible assets $ 67,730 $ 759 $ - $ - $ 68,489
Other assets $ 9,845 $ 23 $ - $ 8,008 $ 1,860
Eleven months ended July 30, 1994 (Predecessor)
- ----------------------------------------------
Allowance for doubtful accounts $ 607 $ 1,569 $ - $ 1,270 $ 906
Accumulated amortization:
Intangible assets $ 59,181 $ 8,549 $ - $ - $ 67,730
Other assets $ 7,592 $ 2,626 $ - $ 373 $ 9,845
<FN>
(A) On April 30, 1996, the General partner purchased all of the capital
stock of Skelgas, Inc. On may 1, 1996 the General partner contributed the assets
and substantially all of the liabilities associated with Skelgas, Inc. to the
Operating Partnership. The amounts reflected as "Other Additions" represent
valuation and qualifying accounts assumed by the Operating Partnership in
connection with the contribution by the General Partner.
(B) On November 1, 1994, the General Partner purchased all of the capital
stock of Vision Energy Resources, Inc. Immediately following the close of the
purchase, the General Partner contributed the assets and substantially all of
the liabilities associated with Vision Energy Resources, Inc. to the Operating
Partnership. The amounts reflected as "Other Additions" represent valuation and
qualitying accounts assumed by the Operating Partnership in connection with the
contribution by the General Partner.
On July 5, 1994, substantially all of the propane assets and liabilities of
Ferrellgas, Inc. were conveyed at historical cost to Ferrellgas, L.P. Total
allowance for uncollectible receivables, accumulated amortization of intangible
assets and accumulated amortization of other assets transferred to Ferrellgas,
L.P. was $906, $67,730 and $9,845, respectively.
</FN>
</TABLE>
S-3
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 31, 1996
among
FERRELLGAS, L.P.,
STRATTON INSURANCE COMPANY, INC.,
FERRELLGAS, INC.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
NATIONSBANK OF TEXAS, N.A.
as Co-Agent
Arranged By
BA SECURITIES, INC.
<PAGE>
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms.............................................. 2
1.02 Other Interpretive Provisions...................................... 31
1.03 Accounting Principles.............................................. 32
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Revolving Loan Commitments
and Facility B Term Loan....................................... 32
(a) Facility A Revolving Loans............................ 32
(b) Facility B Term Loans................................. 33
(c) Facility C Revolving Loans, Letters of
Credit and Swingline Loans..................................... 33
2.02 Loan Accounts....................................................... 34
2.03 Procedure for Borrowing............................................. 35
2.04 Conversion and Continuation Elections............................... 36
2.05 Voluntary Termination or Reduction of Revolving
Loan Commitments............................................... 37
2.06 Optional Prepayments................................................ 38
2.07 Mandatory Prepayments of Loans; Mandatory
Commitment Reductions.......................................... 38
2.08 Repayment........................................................... 39
(a) Facility A Revolving Loans and Facility
C Revolving Loans..................................... 39
(b) Facility B Term Loans................................. 39
(c) Swingline Loans....................................... 39
(d) Extension of Revolving Loan Termination Date.......... 39
2.09 Interest............................................................ 40
2.10 Fees 41
(a) Arrangement, Agency Fees.................................. 41
(b) Commitment Fees........................................... 41
2.11 Computation of Fees and Interest.................................... 41
2.12 Payments by the Borrower............................................ 42
2.13 Payments by the Banks to the Agent.................................. 42
2.14 Sharing of Payments, Etc............................................ 43
2.15 Discretionary Swingline Loans....................................... 44
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility.................................... 45
3.02 Issuance, Amendment and Renewal of Letters
of Credit...................................................... 47
3.03 Existing Letters of Credit; Risk Participations,
Drawings and Reimbursements.................................... 49
3.04 Repayment of Participations......................................... 51
3.05 Role of the Issuing Banks........................................... 52
3.06 Obligations Absolute................................................ 53
3.07 Cash Collateral Pledge.............................................. 54
3.08 Letter of Credit Fees............................................... 54
3.09 Uniform Customs and Practice........................................ 55
3.10 Acknowledgment of Accommodation; Waiver
of Defenses.................................................... 55
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes............................................................... 57
4.02 Illegality.......................................................... 58
4.03 Increased Costs and Reduction of Return............................. 59
4.04 Funding Losses...................................................... 59
4.05 Inability to Determine Rates........................................ 60
4.06 Survival............................................................ 60
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions to Effectiveness......................................... 61
(a) Credit Agreement and any Notes........................ 61
(c) Resolutions; Incumbency............................... 61
(d) Organization Documents; Good Standing................. 61
(e) Legal Opinions........................................ 62
(f) Payment of Fees....................................... 62
(g) Certificate........................................... 62
(h) Refinancing of Floating Rate Senior Notes............. 63
(i) No Material Change.................................... 63
(j) Trading Policies...................................... 63
(l) Other Documents....................................... 63
5.02 Conditions to All Credit Extensions................................. 63
(a) Notice, Application................................... 63
(b) Continuation of Representations and Warranties........ 63
(c) No Existing Default................................... 64
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01 Corporate or Partnership Existence and Power........................ 64
6.02 Corporate or Partnership Authorization;
No Contravention............................................... 64
6.03 Governmental Authorization.......................................... 65
6.04 Binding Effect...................................................... 65
6.05 Litigation.......................................................... 65
6.06 No Default.......................................................... 66
6.07 ERISA Compliance.................................................... 66
6.08 Use of Proceeds; Margin Regulations................................. 67
6.09 Title to Properties................................................. 67
6.10 Taxes............................................................... 67
6.11 Financial Condition................................................. 67
6.12 Environmental Matters............................................... 68
6.13 Regulated Entities.................................................. 68
6.14 No Burdensome Restrictions.......................................... 68
6.15 Copyrights, Patents, Trademarks and Licenses, etc................... 68
6.16 Subsidiaries and Affiliates......................................... 69
6.17 Insurance........................................................... 69
6.18 Tax Status.......................................................... 69
6.19 Full Disclosure..................................................... 69
6.20 Fixed Price Supply Contracts........................................ 69
6.21 Trading Policies.................................................... 69
6.22 Refinancing of Floating Rate Senior Notes........................... 70
ARTICLE VII
AFFIRMATIVE COVENANTS
7.01 Financial Statements................................................ 70
7.02 Certificates; Other Information..................................... 72
7.03 Notices............................................................. 72
7.04 Preservation of Corporate or Partnership
Existence, Etc................................................. 73
7.05 Maintenance of Property............................................. 74
7.06 Insurance........................................................... 74
7.07 Payment of Obligations.............................................. 74
7.08 Compliance with Laws................................................ 74
7.09 Inspection of Property and Books and Records........................ 75
7.10 Environmental Laws.................................................. 75
7.11 Use of Proceeds..................................................... 75
7.12 Financial Covenants................................................. 75
7.13 Trading Policies.................................................... 76
7.14 Other General Partner Obligations................................... 76
7.15 Other Stratton Obligations.......................................... 77
7.16 Monetary Judgments.................................................. 77
7.17 Maintenance of Subsidiary........................................... 77
ARTICLE VIII
NEGATIVE COVENANTS
8.01 Limitation on Liens................................................. 78
8.02 Asset Sales......................................................... 80
8.03 Consolidations and Mergers.......................................... 81
8.04 Acquisitions........................................................ 82
8.05 Limitation on Indebtedness.......................................... 82
8.06 Transactions with Affiliates........................................ 85
8.07 Use of Proceeds..................................................... 86
8.08 Use of Proceeds - Ineligible Securities............................. 86
8.09 Contingent Obligations.............................................. 86
8.10 Joint Ventures...................................................... 86
8.11 Lease Obligations................................................... 86
8.12 Restricted Payments................................................. 87
8.13 Prepayments of Subordinated Indebtedness............................ 89
8.14 Dividend and Other Payment Restrictions
Affecting Subsidiaries......................................... 89
8.15 Change in Business.................................................. 90
8.16 Accounting Changes.................................................. 90
8.17 Limitation on Sale and Leaseback Transactions....................... 90
8.18 Restrictions On Nature Of Indebtedness And
Activities Of Finance Corp..................................... 90
8.19 Amendments of Organization Documents or 1994
Indenture or 1996 Indenture.................................... 91
8.20 Fixed Price Supply Contracts........................................ 91
8.21 Operations through Subsidiaries..................................... 91
8.22 Operations of MLP................................................... 92
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default.................................................... 92
(a) Non-Payment........................................... 92
(b) Representation or Warranty............................ 92
(c) Specific Defaults..................................... 93
(d) Other Defaults........................................ 93
(e) Cross-Default......................................... 93
(f) Insolvency; Voluntary Proceedings..................... 93
(g) Involuntary Proceedings............................... 93
(h) ERISA................................................. 94
(i) Monetary Judgments.................................... 94
(j) Non-Monetary Judgments................................ 94
(k) Loss of Licenses...................................... 94
(l) Adverse Change........................................ 95
(m) Certain Indenture Defaults, Etc....................... 95
(n) Guarantor Defaults.................................... 95
9.02 Remedies............................................................ 95
9.03 Rights Not Exclusive................................................ 96
9.04 Certain Financial Covenant Defaults................................. 96
ARTICLE X
THE AGENT
10.01 Appointment and Authorization...................................... 96
10.02 Delegation of Duties............................................... 97
10.03 Liability of Agent and Issuing Banks............................... 97
10.04 Reliance by Agent and Issuing Banks................................ 98
10.05 Notice of Default.................................................. 98
10.06 Credit Decision.................................................... 99
10.07 Indemnification.................................................... 99
10.08 Agent in Individual Capacity.......................................100
10.09 Successor Agent....................................................100
10.10 Withholding Tax....................................................101
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers.............................................102
11.02 Notices............................................................103
11.03 No Waiver; Cumulative Remedies.....................................104
11.04 Costs and Expenses.................................................104
11.05 Indemnity..........................................................105
11.06 Payments Set Aside.................................................105
11.07 Successors and Assigns.............................................105
11.08 Assignments, Participations, Etc...................................106
11.09 Set-off............................................................108
11.10 Notification of Addresses, Lending Offices, Etc....................109
11.11 Changes of Revolving Loan Commitments..............................109
11.12 Counterparts.......................................................111
11.13 Severability.......................................................111
11.14 No Third Parties Benefited.........................................111
11.15 Governing Law and Jurisdiction.....................................111
11.16 Waiver of Jury Trial...............................................111
11.17 Entire Agreement...................................................112
<PAGE>
SCHEDULES AND EXHIBITS
Schedule 2.01 Revolving Loan Commitments, Facility B Term
Loans
Schedule 3.03 Existing Letters of Credit
Schedule 6.07 ERISA
Schedule 6.16 Subsidiaries and Affiliates
Schedule 8.05 Existing Indebtedness and Subordination
Provisions
Schedule 10.06 Information to be Provided to Banks by Agent
Schedule 11.02 Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Borrower's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F-1 Form of Facility A Revolving Loan Note
Exhibit F-2 Form of Facility B Term Loan Note
Exhibit F-3 Form of Facility C Revolving Loan Note
Exhibit G Form of Subsidiary Guaranty
Exhibit H Form of Commercial Letter of Credit
Exhibit I Form of Standby Letter of Credit
Exhibit J Alternate Form of Standby Letter of Credit
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of July 31, 1996,
among FERRELLGAS, L.P., a Delaware limited partnership (the "Borrower"),
STRATTON INSURANCE COMPANY, INC., a Vermont corporation and a Wholly-Owned
Subsidiary of the Borrower ("Stratton"), FERRELLGAS, INC., a Delaware
corporation and the sole general partner of the Borrower (the "General
Partner"), the several financial institutions from time to time party to this
Agreement (collectively, the "Banks"; individually, a "Bank"), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as agent for the Banks (in such
capacity, the "Agent"). NATIONSBANK OF TEXAS, N.A. is named as co-agent (the
"Co-Agent") hereunder.
R E C I T A L S
WHEREAS, the Borrower, Stratton, the General Partner, the
Banks and the Agent are parties to the Existing Credit Agreement (as defined
below), pursuant to which the Banks have (a) made revolving credit loans and
term loans to the Borrower and have issued or participated in letters of credit
for the account of the Borrower and Stratton, in each case for working capital,
Acquisitions and general corporate or partnership, as the case may be, purposes
in an aggregate amount of up to $185,000,000 and (b) made additional revolving
loans to Borrower solely for working capital purposes in an aggregate amount of
up to $20,000,000;
WHEREAS, the Borrower has requested that (i) the $75,000,000
of Facility A Commitments and $110,000,000 of Facility B Commitments under the
Existing Credit Agreement and the related Facility A Revolving Loans, Facility B
Revolving Loans and Facility B Term Loans outstanding under the Existing Credit
Agreement be refinanced and converted into, respectively, $185,000,000 of
Facility C Commitments and Facility C Revolving Loans under this Agreement, the
proceeds of which are to be used by the Borrower and, in the case of those
Letters of Credit issued for the account of Stratton, by Stratton for working
capital, Acquisitions and general corporate or partnership, as the case may be,
purposes, (ii) the $20,000,000 of Facility C Commitments under the Existing
Credit Agreement and the related Facility C Revolving Loans outstanding under
the Existing Credit Agreement be refinanced and converted into, respectively,
$20,000,000 of Facility A Commitments and Facility A Revolving Loans under this
Agreement, the proceeds of which are to be used by the Borrower solely for
working capital purposes, (iii) separate and apart from the foregoing credit
facility, the Banks make a new $50,000,000 Facility B Term Loan to the Borrower,
the proceeds of which are to be used to refinance, in full, the Floating Rate
Senior Notes (as defined below), and (iv) the Existing Credit Agreement
otherwise be amended and restated in its entirety as set forth below in this
Agreement; and
WHEREAS, the Banks are willing, on and subject to the terms
and conditions set forth in this Agreement, to amend and restate the terms of
the Existing Credit Agreement and to extend credit under this Agreement as more
particularly hereinafter set forth.
ACCORDINGLY, the parties hereto agree to amend and restate the Existing Credit
Agreement as follows:
ARTICLE I
DEFINITIONS
Certain Defined Terms. The following terms have the following meanings:
"1994 Indenture" means the Indenture dated as of July 5, 1994,
among the Borrower, Finance Corp. and Norwest Bank Minnesota, National
Association, pursuant to which the Fixed Rate Senior Notes and the
Floating Rate Senior Notes were issued, as it may be amended, modified
or supplemented from time to time.
"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.
"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 the Borrower or the Subsidiary is the
surviving entity.
"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" has the meaning specified in the introductory clause
hereto. References to the "Agent" shall include BofA in its capacity
as agent for the Banks hereunder, and any successor agent arising
under Section 10.09.
"Agent-Related Persons" means BofA and any successor Agent
arising under Section 10.09, together with their respective Affiliates
(including, in the case of BofA, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agent's Payment Office" means the address for payments set
forth on Schedule 11.02 hereto in relation to the Agent, or such other
address as the Agent may from time to time specify.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, for each Type of Loan, effective as
of the first day of each fiscal quarter, the percentage per annum
(expressed in basis points) set forth below opposite the Level of the
Pricing Ratio applicable to such fiscal quarter as set forth herein.
<TABLE>
<CAPTION>
Pricing Ratio Base Rate Loans Eurodollar Loans
<S> <C> <C> <C>
Level 1 0.00 b.p. 42.50 b.p.
Level 2 0.00 b.p. 50.00 b.p.
Level 3 0.00 b.p. 60.00 b.p.
Level 4 0.00 b.p. 80.00 b.p.
Level 5 0.00 b.p. 110.00 b.p.
Level 6 12.50 b.p. 137.50 b.p.
</TABLE>
"Arranger" means BA Securities, Inc., a Wholly-Owned Subsidiary of BankAmerica
Corporation. The Arranger is a registered broker-dealer and permitted to
underwrite and deal in certain Ineligible Securities.
"Asset Sale" has the meaning specified in Section 8.02.
"Assignee" has the meaning specified in subsection 11.08(a).
"Attorney Costs" means and includes all reasonable and
itemized fees and disbursements of any law firm or other external
counsel, the allocated cost of internal legal services and all
disbursements of internal counsel.
"Attributable Debt" means, in respect of a sale and leaseback
arrangement of any property, as at the time of determination, the
present value (calculated using a discount rate equal to the interest
rate of the Fixed Rate Senior Notes and annual compounding) 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 the date of this Agreement;
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 the Borrower for purposes of
determining the amount of Available Cash until cash is actually
distributed by such Non-Recourse Subsidiary to the Borrower.
"Bank" has the meaning specified in the introductory clause
hereto. References to the "Banks" shall include BofA and any other
Bank designated by the Agent as an Issuing Bank from time to time,
including in their respective capacities as Issuing Banks; for
purposes of clarification only, to the extent that an Issuing Bank may
have any rights or obligations in addition to those of a Bank due to
its status as an Issuing Bank, its status as such will be specifically
referenced.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978, as
amended (11 U.S.C. ss.101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the Federal Funds Rate in effect on such day; and (b) the
rate of interest in effect for such day as publicly announced from
time to time by BofA in San Francisco, California, as its "reference
rate." (The "reference rate" is a rate set by BofA based upon various
factors including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate.) Any change in the reference rate announced by BofA
shall take effect at the opening of business on the day specified in
the public announcement of such change or if no day is so specified,
on the day of the announcement.
"Base Rate Loan" means a Loan that bears interest based on the
Base Rate.
"BofA" has the meaning specified in the introductory clause
hereto.
"Borrowing" means a borrowing hereunder consisting of Loans of
the same Type made to the Borrower on the same day by the Banks (or,
in the case of Swingline Loans, by BofA) and, for Eurodollar Rate
Loans, having the same Interest Period, in either case under Article
II.
"Borrowing Date" means any date on which a Borrowing occurs.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in San Francisco are authorized or
required by law to close and, if the applicable Business Day relates
to any Eurodollar Rate Loan, means such a day on which dealings are
carried on in the London interbank dollar market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Capital Interests" means, 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 Agent, for the benefit of the Agent, the Issuing Banks
and the Banks, as collateral for the L/C Obligations or any
outstanding Loan, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Agent (which
documents are hereby consented to by the Banks). Derivatives of such
term shall have corresponding meaning. The Borrower hereby grants to
the Agent, for the benefit of the Agent, the Issuing Banks and the
Banks, a security interest in all such cash and deposit account
balances. Cash collateral shall be maintained in blocked, non-interest
bearing deposit accounts at BofA. Such collateral may be invested from
time to time in short-term money market instruments and other
investments with the consent of the Agent and the Majority Banks
(which consent may be given or withheld in their sole and absolute
discretion) provided that the Agent, the Issuing Banks and the Banks
shall at all times have a first priority perfected security interest
in such collateral and the proceeds thereof.
"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 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 Investors Service, Inc. or Standard & Poor's Corporation 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).
"Change of Control" means (i) the sale, lease, conveyance or
other disposition of all or substantially all of the Borrower's assets
to any Person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) other than 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 the
Borrower 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 or less than 20%
of the Capital Interests of the Borrower, and (iv) the occurrence of
any transaction, the result of which is that the General Partner is no
longer the sole general partner of the Borrower.
"Class" means, with respect to any Loan, whether such Loan is
a Facility A Revolving Loan, Swingline Loan, Facility B Term Loan, or
Facility C Revolving Loan.
"Co-Agent" means NationsBank of Texas, N.A.
"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.
"Commercial Letter of Credit Risk Participation Percentage"
means, as of any date and based upon the Level of the Pricing Ratio on
such date, the percentage per annum (expressed in basis points) set
forth below opposite such Level:
<TABLE>
<CAPTION>
Pricing Ratio Commercial Letter of Credit
Risk Participation Percentage
<S> <C> <C>
Level 1 15.50 b.p.
Level 2 18.50 b.p.
Level 3 22.50 b.p.
Level 4 30.00 b.p.
Level 5 35.00 b.p.
Level 6 45.00 b.p.
</TABLE>
<TABLE>
<CAPTION>
"Commitment Fee Rate" means, as of any date and based upon the
Level of the Pricing Ratio on such date, the percentage per annum
(expressed in basis points) set forth below opposite such Level:
Pricing Ratio Commitment Fee Rate
<S> <C> <C>
Level 1 12.50 b.p.
Level 2 15.00 b.p.
Level 3 20.00 b.p.
Level 4 27.50 b.p.
Level 5 32.50 b.p.
Level 6 37.50 b.p.
</TABLE>
"Compliance Certificate" means a certificate signed by a
Responsible Officer of the Borrower substantially in the form of
Exhibit C, demonstrating compliance with the covenants contained
herein, including Sections 7.12, 7.13, 7.16 and 8.12 and the 30 day
clean-up period contained in subsection 2.01(a)(ii).
"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, 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 Banks hereunder or to any other lender in connection with
borrowed money or the deferred purchase price of assets that are
considered "interest expense" under GAAP, plus (b) the portion of rent
paid or payable (without duplication) for that fiscal period under
Capital Lease Obligations that should be treated as interest in
accordance with Financial Accounting Standards Board Statement No. 13,
on a consolidated basis.
"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 the referent 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 the referent 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 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.
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Borrower (a) converts Loans of one Type to another
Type, or (b) continues as Loans of the same Type, but with a new
Interest Period, Loans having Interest Periods expiring on such date.
"Credit Extension" means and includes (a) the making of any
Loans hereunder and (b) the Issuance of any Letters of Credit
hereunder.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"Disqualified Interests" means any Capital Interests which, by
their terms (or by the terms of any security into which they are
convertible or for which they are exchangeable), or upon the happening
of any event, mature or are mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of
the holder thereof, in whole or in part, on or prior to December 31,
2001.
"Dollars", "dollars" and "$" each mean lawful money of the United States.
"Effective Amount" means (i) with respect to any Loans on any
date, the aggregate outstanding principal amount thereof after giving
effect to any Borrowings and prepayments or repayments of Loans
occurring on such date; and (ii) with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any Issuances of Letters of Credit
occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of
Credit or any reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date. For purposes of
Section 2.07, the Effective Amount shall be determined without giving
effect to any mandatory prepayments to be made under such Section
2.07.
"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 $100,000,000; (ii) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and
having a combined capital and surplus of at least $200,000,000,
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
Bank, (B) a Subsidiary of a Person of which a Bank is a Subsidiary, or
(C) a Person of which a Bank is a Subsidiary.
"Environmental Claims" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental Law, or
for release or injury to the environment.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental,
health, safety and land use matters.
"Equity Interests" means Capital Interests and all warrants,
options or other rights to acquire Capital Interests (but excluding
any debt security that is convertible into, or exchangeable for,
Capital Interests).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and regulations promulgated thereunder.
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Borrower or the General Partner
from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations which is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) the filing of a
notice of intent to terminate, the treatment of a plan amendment as a
termination under Section 4041 or 4041A of ERISA or the commencement
of proceedings by the PBGC to terminate a Pension Plan subject to
Title IV of ERISA; (d) a failure by the Borrower or the General
Partner to make required contributions to a Pension Plan or other Plan
subject to Section 412 of the Code; (e) an event or condition which
might reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (f) the imposition of any liability
under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or the
General Partner; or (g) an application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the
Code with respect to any Pension Plan.
"Eurodollar Rate" shall mean, for each Interest Period in
respect of Eurodollar Rate Loans comprising part of the same
Borrowing, an interest rate per annum (rounded to the nearest 1/16th
of 1% or, if there is no nearest 1/16th of 1%, rounded upward)
determined pursuant to the following formula:
Eurodollar Rate = LIBOR
1.00 - Eurodollar Reserve Percentage
The Eurodollar Rate shall be adjusted automatically as of the effective
date of any change in the Eurodollar Reserve Percentage.
"Eurodollar Rate Loan" means a Loan that bears interest based
on the Eurodollar Rate.
"Eurodollar Reserve Percentage" shall mean the maximum reserve
percentage (expressed as a decimal, rounded to the nearest 1/100th of
1% or, if there is no nearest 1/100th of 1%, rounded upward) in effect
on the date LIBOR for such Interest Period is determined (whether or
not applicable to any Bank) under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities") having a term comparable to
such Interest Period. Without limiting the effect of the foregoing, the
Eurodollar Reserve shall include any other reserves required to be
maintained by any Bank with respect to (a) any category of liabilities
that includes deposits by reference to which the Eurodollar Rate is to
be determined as provided in the definition of "Eurodollar Rate" in
this Section 1.01 or (b) any category of extensions of credit or other
assets that includes Eurodollar Rate Loans.
"Event of Default" means any of the events or circumstances specified in Section
9.01.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"Existing Credit Agreement" means the Credit Agreement dated
as of July 5, 1994, as amended prior to the Restatement Effective Date,
among Borrower, Stratton, the General Partner, the several financial
institutions from time to time parties thereto, Bank of America
National Trust and Savings Association, as Agent, with The First
National Bank of Boston and NationsBank of Texas, N.A. as named
Co-Agents thereunder.
"Existing Indebtedness" means Indebtedness of the Borrower and
its Subsidiaries (other than the Obligations) and certain Indebtedness
of the General Partner with respect to which the Borrower 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 8.05.
"Existing Letters of Credit" means the letters of credit
issued and outstanding on the Restatement Effective Date which are
described in Schedule 3.03. Each of the Existing Letters of Credit is
designated on such schedule as a standby letter of credit or a
commercial documentary letter of credit.
"Facility A Commitment" means, as to each Bank, the amount set
forth opposite such Bank's name on Schedule 2.01 hereof under the
caption "Facility A Commitment," as the same may be reduced under
Section 2.05 or 2.07 or as a result of one or more assignments under
Section 11.08; provided, that the maximum aggregate Facility A
Commitment of all Banks shall not exceed $20,000,000 at any time.
"Facility A Revolving Loan" has the meaning specified in
subsection 2.01(a), and may be a Base Rate Loan or a Eurodollar Rate
Loan.
"Facility B Term Loan" has the meaning specified in subsection
2.01(b), and may be a Base Rate Loan or a Eurodollar Rate Loan.
"Facility C Commitment" means, as to each Bank, the amount set
forth opposite such Bank's name on Schedule 2.01 hereof under the
caption "Facility C Commitment," as the same may be reduced under
Section 2.05 or 2.07 or as a result of one or more assignments under
Section 11.08; provided, that the maximum aggregate Facility C
Commitment of all Banks shall not exceed $185,000,000 at any time.
"Facility C Revolving Loan" has the meaning specified in
subsection 2.01(c), and may be a Base Rate Loan or a Eurodollar Rate
Loan.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal
functions.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City
time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.10(a).
"Ferrellgas Partners Finance Corp." means Ferrellgas Partners Finance Corp., a
Delaware corporation and a Wholly-Owned Subsidiary of the MLP.
"Finance Corp." means Ferrellgas Finance Corp., a Delaware corporation and
a Wholly-Owned Subsidiary of the Borrower.
"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 the referent Person or any of its Subsidiaries incurs,
assumes, guarantees, redeems or repays any Indebtedness (other than
revolving credit borrowings including, with respect to the Borrower,
Swingline Loans, Facility A 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 the referent Person or any of its
Subsidiaries during the reference period or subsequent to such
reference period and on or prior to the Calculation Date assuming that
all such Acquisitions, dispositions and discontinuances of businesses
or assets had occurred on the first day of the reference period;
provided, however, that with respect to the Borrower, (a) Fixed Charges
shall be reduced by amounts attributable to businesses or assets that
are so disposed of or discontinued only to the extent that the
obligations giving rise to such Fixed Charges would no longer be
obligations contributing to the Fixed Charges of the Borrower
subsequent to the Calculation Date and (b) Consolidated Cash Flow
generated by an acquired business or asset shall be determined by the
actual gross profit (revenues minus costs of goods sold) of such
acquired business or asset during the immediately preceding number of
full fiscal quarters as are in the reference period minus the pro forma
expenses that would have been incurred by the Borrower in the operation
of such acquired business or asset during such period computed on the
basis of (i) personnel expenses for employees retained by the Borrower
in the operation of the acquired business or asset and (ii)
non-personnel costs and expenses incurred by the Borrower on a per
gallon basis in the operation of the Borrower's business at similarly
situated Borrower facilities.
"Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of (a) consolidated interest
expense of such Person for such period, whether paid or accrued, to the
extent such expense was deducted in computing Consolidated Net Income
(including amortization of original issue discounts, non-cash interest
payments, the interest component of all payments associated with
Capital Lease Obligations and net payments (if any) pursuant to Hedging
Obligations permitted hereunder), (b) commissions, discounts and other
fees and charges incurred with respect to letters of credit, (c) any
interest expense on Indebtedness of another Person that is guaranteed
by such Person or secured by a Lien on assets of such Person, and (d)
the product of (i) all cash dividend payments (and non-cash dividend
payments in the case of a Person that is a Subsidiary) on any series of
preferred stock of such Person, times (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, determined, in each case, on a consolidated
basis and in accordance with GAAP.
"Fixed Rate Senior Notes" means the 10% Series A Fixed Rate
Senior Notes due 2001, as amended or supplemented from time to time,
issued by the Borrower and Finance Corp pursuant to the 1994 Indenture.
"Floating Rate Senior Notes" means the $50,000,000 Series B Floating Rate Senior
Notes due 2001 issued by the Borrower and Finance Corp. pursuant to the 1994
Indenture.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"Funded Debt" means all Indebtedness of Borrower and its
Subsidiaries which by its terms or by the terms of any instrument or
agreement relating thereto matures, or which is otherwise payable or
unpaid, one year or more from, or is directly or indirectly renewable
or extendable at the option of the obligor in respect thereof to a date
one year or more (including, without limitation, an option of such
obligor under a revolving credit agreement or similar agreement
obligating the lender or lenders to extend credit over a period of one
year or more) from, the date of creation thereof, excluding all
Contingent Obligations of Borrower 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" has the meaning specified in the introductory clause hereto.
"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, and includes Finance Corp.
"Guaranty" means a continuing guaranty of the Obligations in
favor of the Agent on behalf of the Banks, in form and substance
satisfactory to the Agent.
"Guaranty Obligation" has the meaning specified in the definition of "Contingent
Obligation."
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (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.
"Honor Date" has the meaning specified in subsection 3.03(c).
"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
indebtedness referred to in clauses (a) through (g) 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 (i) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in
clauses (a) through (h) above.
"Indemnified Liabilities" has the meaning specified in Section 11.05.
"Indemnified Person" has the meaning specified in Section 11.05.
"Independent Auditor" has the meaning specified in subsection 7.01(a).
"Ineligible Securities" means securities which may not be
underwritten or dealt in by member banks of the Federal Reserve System
under Section 16 of the Banking Act of 1933 (12 U.S.C. ss. 24,
Seventh), as amended.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of a
Person's creditors generally or any substantial portion of a Person's
creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Eurodollar Rate Loan,
the last day of each Interest Period applicable to such Loan and, as to
any Base Rate Loan, the first Business Day of each fiscal quarter of
the Borrower, provided, however, that if any Interest Period for a
Eurodollar Rate Loan exceeds three months, the date that is three
months after the beginning of such Interest Period and after each
Interest Payment Date thereafter is also an Interest Payment Date,
provided further, that if there is no numerically corresponding day in
the calendar month during which an Interest Payment Date is to occur,
such Interest Payment Date shall occur on the last Business Day of such
calendar month.
"Interest Period" means, as to any Eurodollar Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as a Eurodollar Rate Loan, and ending on the date one, two,
three or six months thereafter as selected by the Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest
Period;
(iii) no Interest Period for any Revolving Loan shall extend beyond the
Revolving Loan Termination Date; and
(iv) no Interest Period applicable to the Facility B
Term Loan shall extend beyond the Term Loan Maturity Date.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions.
"Issuance Date" has the meaning specified in subsection 3.01(a).
"Issue" means, with respect to any Letter of Credit, to issue
or to extend the expiry of, or to renew or increase the amount of, such
Letter of Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
"Issuing Banks" means BofA and Banque Paribas in their
respective capacities as issuers of one or more Letters of Credit
hereunder.
"Joint Venture" means a single-purpose corporation,
partnership, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now
or hereafter formed by the Borrower or any of its Subsidiaries with
another Person in order to conduct a common venture or enterprise with
such Person.
"L/C Advance" means each Bank's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
"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 A
Revolving Loans under subsection 3.03(c).
"L/C Commitment" means the commitment of the Issuing Banks to
Issue, and the commitment of the Banks severally to participate in,
Letters of Credit from time to time Issued or outstanding under Article
III, in an aggregate amount not to exceed on any date the lesser of
$50,000,000 and the aggregate Facility C Commitment, as such amount may
be reduced as a result of a reduction in the L/C Commitment pursuant to
Section 2.05; provided that the L/C Commitment is a part of the
aggregate Facility C Commitment, rather than a separate, independent
commitment.
"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 the Borrower and Stratton 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.
"Lending Office" means, as to any Bank, the office or offices
of such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Eurodollar Lending Office", as the case may be, on Schedule
11.02, or such other office or offices as such Bank may from time to
time notify the Borrower and the Agent.
"Letters of Credit" means, collectively, Standby Letters of Credit and
Commercial Letters of Credit.
"Level" means, at any time, Level 1, Level 2, Level 3, Level
4, Level 5 or Level 6 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 less than 1.75
Level 2 1.75 less than PR less than 2.75
Level 3 2.75 less than PR less than 3.25
Level 4 3.25 less than PR less than 3.75
Level 5 3.75 less than PR less than 4.25
Level 6 PR less than 4.25
The Level of the Pricing Ratio for the period from the Restatement
Effective Date to the end of the fiscal quarter of the Borrower during
which the Restatement Effective Date occurs shall be equal to Level 2.
Any change in the Level of the Pricing Ratio shall be determined by the
Agent based upon the financial information required to be contained in
the Compliance Certificates delivered by the Borrower to the 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 Agent, and
without limiting the other rights and remedies of the Agent and the
Banks hereunder, the Pricing Ratio shall be deemed to be Level 6 as of
the first day of the fiscal quarter beginning after the fiscal quarter
for which such Compliance Certificate was due.
"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 at the end of such period, to Consolidated
Cash Flow of such Person for such period plus the portion of rent paid
or payable (without duplication) for that period under Synthetic Lease
Obligations of such Person that would be treated as interest in
accordance with Financial Accounting Standards Board Statement No. 13
if such Synthetic Lease Obligations were treated as Capital Lease
Obligations under GAAP (such portion, the "Synthetic Lease Interest
Component"). In the event that the referent 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 the
referent Person or any of its Subsidiaries during the reference period
or subsequent to such reference period and on or prior to the Leverage
Ratio Calculation Date assuming that all such Acquisitions, Asset Sales
and other dispositions and discontinuances of businesses or assets had
occurred on the first day of the reference period; provided, however,
that with respect to the Borrower and its Subsidiaries, (a) Funded Debt
shall be reduced by amounts attributable to businesses or assets that
are so disposed of or discontinued only to the extent that the
Indebtedness included within such Funded Debt would no longer be an
obligation of the Borrower or its Subsidiaries subsequent to the
Leverage Ratio Calculation Date and (b) Consolidated Cash Flow
generated by an acquired business or asset shall be determined by the
actual gross profit (revenues minus costs of goods sold) of such
acquired business or asset during the immediately preceding number of
full fiscal quarters as in the reference period minus the pro forma
expenses that would have been incurred by the Borrower and its
Subsidiaries in the operation of such acquired business or asset during
such period computed on the basis of (i) personnel expenses for
employees retained by the Borrower and its Subsidiaries in the
operation of the acquired business or asset and (ii) non-personnel
costs and expenses incurred by the Borrower and its Subsidiaries on a
per gallon basis in the operation of the Borrower's business at
similarly situated facilities of the Borrower.
"LIBOR" means the rate of interest per annum determined by the
Agent to be the arithmetic mean (rounded upward to the next 1/16th of
1%) of the rates of interest per annum notified to the Agent by BofA as
the rates of interest at which dollar deposits in the approximate
amount of the amount of the Loan to be made or continued as, or
converted into, a Eurodollar Rate Loan by BofA and having a maturity
comparable to such Interest Period would be offered to major banks in
the London interbank market at their request at approximately 11:00
a.m. (London time) two Business Days prior to the commencement of such
Interest Period.
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any financing
statement naming the owner of the asset to which such lien relates as
debtor, under the Uniform Commercial Code or any comparable law) and
any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Bank to the Borrower
under Article II or Article III in the form of a Facility A Revolving
Loan, Facility B Term Loan, Facility C Revolving Loan, L/C Advance or
(in the case of BofA) Swingline Loan.
"Loan Documents" means this Agreement, any Notes, the Fee
Letters, the L/C-Related Documents, the Guaranties and all other
documents delivered to the Agent or any Bank in connection herewith.
"Majority Banks" means at any time Banks then holding 51% or
more of the then aggregate unpaid principal amount of the Loans (other
than the Swingline Loans), or, if no such principal amount is then
outstanding, Banks then having 51% or more of the aggregate Revolving
Loan Commitments.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U of the FRB.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of the
Borrower or the Borrower and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the General Partner, the Borrower
or any Subsidiary to perform under any Loan Document or otherwise to
avoid any Event of Default; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against the
Borrower or any Subsidiary of any Loan Document.
"MLP" means Ferrellgas Partners, L.P., a Delaware limited
partnership and the sole limited partner of the Borrower.
"MLP Senior Notes" means the $160,000,000 9-3/8% Senior Secured Notes issued by
the MLP and Ferrellgas Partners Finance Corp. pursuant to the 1996 Indenture.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding,
however, (a) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection
with (i) any asset sale (including, 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); provided, however, that all costs
and expenses with respect to the retirement of the Floating Rate Senior
Notes, including, without limitation, cash premiums, tender offer
premiums, consent payments and all fees and expenses in connection
therewith, shall be added back to the Net Income of the Borrower, the
General Partner or their Subsidiaries to the extent that they were
deducted from such Net Income in accordance with GAAP.
"Net Proceeds of Asset Sale" means the aggregate cash proceeds
received by the Borrower or any of its Subsidiaries in respect of any
Asset Sale, net of the direct costs relating to such Asset Sale
(including, 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.
"Non-Recourse Subsidiary" means any Person that would
otherwise be a Subsidiary of the Borrower but is designated as a
Non-Recourse Subsidiary in a resolution of the Board of Directors of
the General Partner, so long as each of the following remains true: (a)
no portion of the Indebtedness or any other obligation (contingent or
otherwise) of such Person (i) is a Contingent Obligation of the
Borrower or any of its Subsidiaries, (ii) is recourse or obligates the
Borrower or any of its Subsidiaries in any way or (iii) subjects any
property or asset of the Borrower or any of its Subsidiaries, directly
or indirectly, contingently or otherwise, to satisfaction thereof, (b)
neither the Borrower nor any of its Subsidiaries has any contract,
agreement, arrangement or understanding or is subject to an obligation
of any kind, written or oral, with such Person other than on terms no
less favorable to the Borrower and its Subsidiaries than those that
might be obtained at the time from persons who are not Affiliates of
the Borrower, (c) neither the Borrower nor any of its Subsidiaries has
any obligation with respect to such Person (i) to subscribe for
additional shares of capital stock, Capital Interests or other Equity
Interests therein or (ii) maintain or preserve such Person's financial
condition or to cause such Person to achieve certain levels of
operating or other financial results, (d) such Person has no more than
$1,000 of assets at the time of such designation, (e) such Person is in
compliance with the restrictions applicable to Affiliates of the MLP
under Section 8.22 hereof and (f) such Person takes steps designed to
assure that neither the Borrower nor any of its Subsidiaries will be
liable for any portion of the Indebtedness or other obligations of such
Person, including maintenance of a corporate or limited partnership
structure and observance of applicable formalities such as regular
meetings and maintenance of minutes, a substantial and meaningful
capitalization and the use of a corporate or partnership name, trade
name or trademark not misleadingly similar to those of the Borrower.
"Note" means a promissory note executed by the Borrower in
favor of a Bank pursuant to subsection 2.02(b), in substantially the
form of Exhibit F-1, F-2 or F-3.
"Notice of Borrowing" means a notice in substantially the form of Exhibit A.
"Notice of Conversion/Continuation" means a notice in substantially the form of
Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document,
owing by the Borrower to any Bank, the Agent, or any Indemnified
Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing
or hereafter arising including, without limitation, all Indebtedness of
the Borrower to the Banks for the payment of principal of and interest
on all outstanding Loans and all obligations of the Borrower to the
Issuing Banks for reimbursement of drawings under Letters of Credit
from time to time.
"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.
"Other Taxes" means any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection 11.08(d).
"Partners' Equity" means the partners' equity as shown on a
balance sheet prepared in accordance with GAAP for any partnership.
"Partnership Agreement" shall mean the Agreement of Limited
Partnership of the Borrower dated July 5, 1994, as amended from time to
time.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"Pension Plan" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which the Borrower or the
General Partner sponsors, maintains, or to which it makes, is making,
or is obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five (5)
plan years.
"Permitted Acquisitions" means Acquisitions by the Borrower
and its Subsidiaries which comply with the provisions of Section 8.04.
"Permitted Investments" means (a) any Investments in Cash
Equivalents; (b) any Investments in the Borrower or in a Wholly-Owned
Subsidiary of the Borrower that is a Guarantor; (c) Investments by the
Borrower or any Subsidiary of the Borrower in a Person, if as a result
of such Investment (i) such Person becomes a Wholly-Owned Subsidiary of
the Borrower and a Guarantor or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Borrower
or a Wholly-Owned Subsidiary of the Borrower that is a Guarantor; and
(d) other Investments in Non-Recourse Subsidiaries of the Borrower that
do not exceed $30 million in the aggregate.
"Permitted Liens" has the meaning specified in Section 8.01.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Borrower or any Subsidiary of the Borrower issued in exchange for,
or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund other Indebtedness of the Borrower or any of
its Subsidiaries; provided that (a) the principal amount of such
Indebtedness does not exceed the principal amount of the Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded (the
"Prior Indebtedness") (plus the amount of reasonable expenses incurred
in connection therewith), and the effective interest rate per annum on
such Indebtedness does not or is not likely to exceed the effective
interest rate per annum of the Prior Indebtedness, as determined by the
Agent in its sole discretion; (b) such Indebtedness has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of the Prior Indebtedness; (c) if the Prior
Indebtedness is subordinated to the Obligations, such Indebtedness is
subordinated to the Obligations on the terms and conditions set forth
on part II of Schedule 8.05; and (d) such Indebtedness is incurred by
the Borrower or the Subsidiary who is the obligor on the Prior
Indebtedness.
"Permitted Senior Debt" means, with respect to any Person, (i)
any Acquired Debt of such Person, (ii) any Indebtedness incurred by
such Person, the proceeds of which are applied solely to finance
Growth-Related Capital Expenditures and (iii) any Indebtedness incurred
by such Person, the proceeds of which are used solely for working
capital purposes.
"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 the Borrower sponsors or maintains or to which the
Borrower or the General Partner makes, is making, or is obligated to
make contributions and includes any Pension Plan.
"Pricing Ratio" means, as of the last day of each fiscal
quarter of the Borrower, the Leverage Ratio for the fiscal period
consisting of such fiscal quarter of the Borrower and the three
immediately preceding fiscal quarters of the Borrower.
"Pro Rata Share" means, as to any Bank at any time, the
percentage set forth on Schedule 2.01 hereto as its "Pro Rata Share,"
as such amount may be adjusted by assignments under Section 11.08.
"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 or (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.
"Reportable Event" means, any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, other than any
such event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"Responsible Officer" means the chief executive officer or the
president of the General Partner or any other officer having
substantially the same authority and responsibility to act for the
General Partner on behalf of the Borrower; or, with respect to actions
taken or to be taken under Articles II and III and compliance with
financial covenants, the chief financial officer or the treasurer of
the General Partner or any other officer having substantially the same
authority and responsibility to act for the General Partner on behalf
of the Borrower or any other employee of the General Partner designated
in a certificate of a Responsible Officer to have authority in such
matters.
"Restatement Effective Date" means the later to occur of (a)
the first date on which all conditions precedent set forth in Section
5.01 and Section 5.02 are satisfied or waived by all Banks (or, in the
case of subsection 5.01(f), waived by the Persons entitled to receive
such payments) and (b) July 31, 1996.
"Revolving Loan Commitments" means, as to each Bank, the
Facility A Commitment and the Facility C Commitment of such Bank.
"Revolving Loans" means, collectively, the Facility A Revolving Loans and the
Facility C Revolving Loans.
"Revolving Loan Termination Date" means the earlier of (a)
July 31, 1999 (or such later date to which the Revolving Loan
Termination Date may be extended pursuant to subsection 2.08(d) of this
Agreement) and (b) the date on which the Revolving Loan Commitments
shall have been terminated pursuant to this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Senior Debt" means, without duplication, (i) the Obligations,
(ii) all other Indebtedness of the Borrower or Finance Corp., unless
the instrument under which such Indebtedness is incurred expressly
provides that it is subordinated in right of payment to the Obligations
and (iii) all Indebtedness of Subsidiaries of the Borrower, other than
Finance Corp.
"Significant Subsidiary" means any Subsidiary of the Borrower
that would be a "significant subsidiary" as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Act, 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.
"Standby Letters of Credit" means standby letters of credit
Issued by an Issuing Bank pursuant to Article III.
"Standby Letter of Credit Risk Participation Percentage"
means, as of any date and based upon the Level of the Pricing Ratio on
such date, the percent per annum (expressed in basis points) set forth
below opposite such Level:
<TABLE>
<CAPTION>
Pricing Ratio Standby Letter of Credit Risk
Participation Percentage
<S> <C> <C>
Level 1 42.50 b.p.
Level 2 50.00 b.p.
Level 3 60.00 b.p.
Level 4 80.00 b.p.
Level 5 110.00 b.p.
Level 6 137.50 b.p.
</TABLE>
"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 the Borrower that is designated a Non-Recourse
Subsidiary pursuant to the definition thereof shall, for so long as
all of the statements in the definition thereof remain true, not be
deemed a Subsidiary of the Borrower.
"Subsidiary Note Guarantees" means each guarantee of the Fixed
Rate Senior Notes made pursuant to the 1994 Indenture.
"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.
"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 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.
"Taxes" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Bank and the Agent,
such taxes (including income taxes or franchise taxes) as are imposed
on or measured by each Bank's net income by the jurisdiction (or any
political subdivision thereof) under the laws of which such Bank or
the Agent, as the case may be, is organized or maintains a lending
office.
"Term Loan Maturity Date" means June 1, 2001.
"Type" means, with respect to any Loan, whether such Loan is a
Base Rate Loan or a Eurodollar Rate Loan.
"UCP" has the meaning specified in Section 3.09.
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.
"United States" and "U.S." each means the United States of America.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a)
the sum of the products obtained by multiplying (x) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity,
in respect thereof, by (y) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making
of such payment, by (b) the then outstanding principal amount of such
Indebtedness; provided, however, that with respect to any revolving
Indebtedness, the foregoing calculation of Weighted Average Life to
Maturity shall be determined based upon the total available
commitments and the required reductions of commitments in lieu of the
outstanding principal amount and the required payments of principal,
respectively.
"Wholly-Owned Subsidiary" means a Subsidiary of which all of
the outstanding Capital Interests or other ownership interests (other
than directors' qualifying shares) or, in the case of a limited
partnership, all of the partners' Capital Interests (other than up to
a 1% general partner interest), is owned, beneficially and of record,
by the Borrower, a Wholly-Owned Subsidiary of the Borrower or both.
Other Interpretive Provisions.tive Provisions
(a) The meanings of defined terms are equally applicable to the singular and
plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular provision of
this Agreement; and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means "including without
limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any statute
or regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
(g) Unless otherwise expressly provided herein, financial
calculations applicable to the Borrower shall be made on a consolidated basis.
(h) This Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Agent, the
Borrower and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Banks or the Agent merely
because of the Agent's or Banks' involvement in their preparation.
Accounting Principles.ting Principles
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied. In the event that GAAP changes
during the term of this Agreement such that the covenants contained in Section
7.12 would then be calculated in a different manner or with different
components, (i) the Borrower and the Banks agree to amend this Agreement in such
respects as are necessary to conform those covenants as criteria for evaluating
Borrower's financial condition to substantially the same criteria as were
effective prior to such change in GAAP and (ii) the Borrower shall be deemed to
be in compliance with the covenants contained in Section 7.12 during the 90-day
period following any such change in GAAP if and to the extent that the Borrower
would have been in compliance therewith under GAAP as in effect immediately
prior to such change.
(b) Except as otherwise specified, references herein to
"fiscal year" and "fiscal quarter" refer to such fiscal periods of the Borrower.
ARTICLE II
THE CREDITS
Amounts and Terms of Revolving Loan Commitments and Facility B Term Loan.ity B
Term Loan
Facility A Revolving Loans.A Revolving Loans
(i) Each Bank severally agrees, on the terms and
subject to the conditions set forth herein, to make loans to the
Borrower (each such loan, a "Facility A Revolving Loan") from time to
time on any Business Day during the period from the Restatement
Effective Date to the Revolving Loan Termination Date, in an aggregate
principal amount not to exceed at any time outstanding such Bank's
Facility A Commitment as in effect from time to time; provided,
however, that, after giving effect to any Borrowing of Facility A
Revolving Loans, the Effective Amount of all outstanding Facility A
Revolving Loans shall not at any time exceed the combined Facility A
Commitments, and the Effective Amount of the Facility A Revolving
Loans of any Bank shall not at any time exceed such Bank's Facility A
Commitment. On the Restatement Effective Date, the aggregate
outstanding principal amount of the Facility C Revolving Loans (other
than Swingline Loans) under (and as defined in) the Existing Credit
Agreement shall be automatically deemed to be Facility A Revolving
Loans under this Agreement for all purposes of this Agreement and the
other Loan Documents (including for the purpose of determining usage
of the Facility A Commitment under this Agreement as set forth above).
(ii) Within the limits of each Bank's Facility A
Commitment and on the other terms and subject to the other conditions
hereof, the Borrower may borrow under this subsection 2.01(a), prepay
under Section 2.06 and reborrow under this subsection 2.01(a);
provided, that the Borrower shall cause the aggregate outstanding
principal amount of Facility A Revolving Loans to be reduced to zero
for at least one period of 30 consecutive days during each fiscal year
of the Borrower, commencing with its fiscal year beginning August 1,
1996.
Facility B Term Loans. Each Bank severally agrees, on the terms and subject to
the conditions set forth herein, to make a single loan to the Borrower (each
such loan, a "Facility B Term Loan") on the Restatement Effective Date in a
principal amount equal to the amount set forth opposite such Bank's name on
Schedule 2.01 hereof under the caption "Facility B Term Loan" for the purpose of
refinancing the Floating Rate Senior Notes. Amounts borrowed as Facility B Term
Loans which are repaid or prepaid by the Borrower may not be reborrowed.
Facility C Revolving Loans, Letters of Credit and Swingline Loans.d Swingline
Loans
(i) Each Bank severally agrees, on the terms and
subject to the conditions set forth herein, to make loans to the
Borrower (each such loan, a "Facility C Revolving Loan") from time to
time on any Business Day during the period from the Restatement
Effective Date to the Revolving Loan Termination Date, in an aggregate
principal amount not to exceed at any time outstanding such Bank's
Facility C Commitment as in effect from time to time; provided,
however, that, after giving effect to any Borrowing of Facility C
Revolving Loans, the sum of the Effective Amount of all outstanding
Facility C Revolving Loans plus the Effective Amount of all L/C
Obligations plus the Effective Amount of all Swingline Loans shall not
at any time exceed the combined Facility C Commitments, and the
Effective Amount of the Facility C Revolving Loans of any Bank plus
the participation of such Bank in the Effective Amount of all L/C
Obligations plus such Bank's Pro Rata Share of the Effective Amount of
all outstanding Swingline Loans shall not at any time exceed such
Bank's Facility C Commitment. On the Restatement Effective Date, the
aggregate outstanding principal amount of the Facility A Revolving
Loans, the Facility B Revolving Loans, the Facility B Term Loans and
Swingline Loans, in each case under (and as defined in) the Existing
Credit Agreement shall be automatically deemed to be Facility C
Revolving Loans under this Agreement for all purposes of this
Agreement and the other Loan Documents (including for the purpose of
determining usage of the Facility C Commitment under this Agreement as
set forth above).
(ii) Within the limits of each Bank's Facility C
Commitment and on the other terms and subject to the other conditions
hereof, the Borrower may borrow under this subsection 2.01(c), prepay
under Section 2.06 and reborrow under this subsection 2.01(c).
(iii) As a subfacility of the Banks' Facility C
Commitments, the Borrower and Stratton may request the Issuing Banks
to Issue Letters of Credit from time to time pursuant to Article III.
(iv) In addition, the Borrower may request BofA to
make Swingline Loans to the Borrower from time to time pursuant to
Section 2.15.
Loan Accounts. (a) The Loans made by each Bank and the Letters of Credit Issued
by the Issuing Banks shall be evidenced by one or more accounts or records
maintained by such Bank or Issuing Bank, as the case may be, in the ordinary
course of business. The accounts or records maintained by the Agent, the Issuing
Banks and each Bank shall be conclusive absent manifest error of the amount of
the Loans made by the Banks to the Borrower and the Letters of Credit Issued for
the account of the Borrower, and the interest and payments thereon. Any failure
so to record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrower hereunder to pay any amount owing with
respect to the Loans or any Letter of Credit.
(b) Upon the request of any Bank made through the Agent, the
Loans made by such Bank may be evidenced by one or more Notes, instead of loan
accounts. Each such Bank shall endorse on the schedules annexed to its Note(s)
the date, amount and maturity of each Loan made by it and the amount of each
payment of principal made by the Borrower with respect thereto. Each such Bank
is irrevocably authorized by the Borrower to endorse its Note(s) and each Bank's
record shall be conclusive absent manifest error; provided, however, that the
failure of a Bank to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any such Note to such Bank.
Procedure for Borrowing. (a) Each Borrowing of Loans (other than Swingline
Loans) shall be made upon the Borrower's irrevocable written notice delivered to
the Agent in the form of a Notice of Borrowing (which notice must be received by
the Agent prior to 11:00 a.m. San Francisco time (i) three Business Days prior
to the requested Borrowing Date, in the case of Eurodollar Rate Loans, and (ii)
one Business Day prior to the requested Borrowing Date, in the case of Base Rate
Loans, specifying:
(A) the amount of the Borrowing, which shall
be in an aggregate minimum amount of $3,000,000 or any
multiple of $1,000,000 in excess thereof for Eurodollar Loans,
or $1,000,000 or any multiple of $100,000 in excess thereof
for Base Rate Loans;
(B) the requested Borrowing Date, which shall be a Business Day;
(C) the Type and Class of Loans comprising the Borrowing; and
(D) the duration of the Interest Period applicable to any Eurodollar Rate Loans
included in such notice.
If the Notice of Borrowing fails to specify the
duration of the Interest Period for any Borrowing comprised of Eurodollar Rate
Loans, such Interest Period shall be one month.
(b) The Agent will promptly notify each Bank of the Agent's
receipt of any Notice of Borrowing and of the amount of such Bank's Pro Rata
Share of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of
each Borrowing available to the Agent for the account of the Borrower at the
Agent's Payment Office by 11:00 a.m. San Francisco time on the Borrowing Date
requested by the Borrower in funds immediately available to the Agent. The
proceeds of all such Loans will then be made available to the Borrower by the
Agent at such office by crediting the account of the Borrower on the books of
BofA with the aggregate of the amounts made available to the Agent by the Banks
and in like funds as received by the Agent.
(d) After giving effect to any Borrowing, there may not be
more than 10 different Interest Periods in effect with respect to Eurodollar
Rate Loans.
Conversion and Continuation Elections. (a) The Borrower may, upon irrevocable
written notice to the Agent in accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable Interest
Period, in the case of Eurodollar Rate Loans, to convert any such
Loans (or any part thereof in an amount not less than $3,000,000, or
that is in an integral multiple of $1,000,000 in excess thereof) into
Loans of the other Type; or
(ii) elect as of the last day of the applicable
Interest Period, to continue as Eurodollar Rate Loans any Loans having
Interest Periods expiring on such day (or any part thereof in an
amount not less than $3,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof);
provided, that if at any time the aggregate amount of Eurodollar Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $3,000,000, such Eurodollar Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Borrower to continue such Loans as, and convert such Loans into,
Eurodollar Rate Loans shall terminate.
(b) The Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later than 10:00 a.m.
San Francisco time at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or continued
as Eurodollar Rate Loans; and (ii) one Business Day in advance of the
Conversion/Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount and Class of Loans to be converted or renewed;
(C) the Type of Loans resulting from the proposed conversion or continuation;
and
(D) other than in the case of conversions
into Base Rate Loans, the duration of the requested Interest
Period.
(c) If upon the expiration of any Interest Period applicable
to Eurodollar Rate Loans, the Borrower has failed to select a new Interest
Period within the time period specified in subsection 2.04(b) to be applicable
to such Eurodollar Rate Loans, or if any Default or Event of Default then
exists, the Borrower shall be deemed to have elected to convert such Eurodollar
Rate Loans into Base Rate Loans effective as of the expiration date of such
Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of
a Notice of Conversion/Continuation, or, if no notice is provided by the
Borrower within the time period specified in subsection 2.04(b), the Agent will
promptly notify each Bank of the details of any automatic conversion. All
conversions and continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the notice was
given held by each Bank.
(e) Unless the Majority Banks otherwise agree, during the
existence of a Default or Event of Default, the Borrower may not elect to have a
Loan converted into or continued as a Eurodollar Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than ten different Interest Periods in effect.
Voluntary Termination or Reduction of Revolving Loan Commitments.oan Commitments
(a) The Borrower may, not later than 11:00 a.m. San Francisco
time at least three Business Days prior to its effective date by notice to the
Agent, terminate or permanently reduce the Facility A Commitments by an
aggregate minimum amount of $5,000,000 or any multiple of $5,000,000 in excess
thereof; unless, after giving effect thereto and to any prepayments of Loans
made on the effective date thereof, the Effective Amount of all Facility A
Revolving Loans would exceed the amount of the combined Facility A Commitments
then in effect.
(b) The Borrower may, not later than 11:00 a.m. San Francisco
time at least three Business Days prior to its effective date by notice to the
Agent, terminate or permanently reduce the Facility C Commitments by an
aggregate minimum amount of $5,000,000 or any multiple of $5,000,000 in excess
thereof; unless, after giving effect thereto and to any prepayments of Loans
made on the effective date thereof, (i) the Effective Amount of all Facility C
Revolving Loans, L/C Obligations and Swingline Loans together would exceed the
amount of the combined Facility C Commitments then in effect, or (ii) the
Effective Amount of all L/C Obligations then outstanding would exceed the L/C
Commitment.
(c) Once reduced in accordance with this Section, the
Commitments may not be increased. Any reduction of the Facility A Commitments or
the Facility C Commitments shall be applied to each Bank according to its Pro
Rata Share.
Optional Prepayments. (a) Subject to Section 4.04, the Borrower may, at any time
or from time to time, not later than 10:00 a.m. San Francisco time at least
three (3) Business Days prior to its effective date by irrevocable notice to the
Agent, in the case of Eurodollar Rate Loans, and not later than 10:00 a.m. San
Francisco time at least one (1) Business Day prior to its effective date by
irrevocable notice to the Agent, in the case of Base Rate Loans, ratably prepay
Loans in whole or in part, in minimum amounts of $3,000,000 or any multiple of
$1,000,000 in excess thereof, for Eurodollar Rate Loans, and in minimum amounts
of $1,000,000 or any multiple of $100,000 in excess thereof, for Base Rate
Loans.
(b) Any such notice of prepayment shall specify the date and
amount of such prepayment and the Type(s) and, with respect to voluntary
prepayments occurring on or prior to the Revolving Loan Termination Date, the
Class(es) of Loans to be prepaid. Prepayments of Base Rate Loans of any Class
may be made hereunder on any Business Day. Prepayments of Eurodollar Rate Loans
of any Class may be made hereunder only on the last day of any applicable
Interest Period; provided, that prepayments of Eurodollar Rate Loans may be made
on a day other than the last day of the applicable Interest Period only with
payment by the Borrower of the aggregate amount of any associated funding losses
of any affected Banks pursuant to Section 4.04. The Agent will promptly notify
each Bank of its receipt of any such notice, and of such Bank's Pro Rata Share
of such prepayment.
(c) If any such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together, in the case of a
Eurodollar Rate Loan, with accrued interest to each such date on the amount
prepaid and any amounts required pursuant to Section 4.04.
Mandatory Prepayments of Loans; Mandatory Commitment Reductions. (a) Subject to
Section 4.04, if on any date on or prior to the Revolving Loan Termination Date
the Effective Amount of all Facility A Revolving Loans then outstanding exceeds
the combined Facility A Commitments, the Borrower shall immediately, and without
notice or demand, prepay the outstanding principal amount of Facility A
Revolving Loans by an aggregate amount equal to the applicable excess.
(b) If on any date the Effective Amount of L/C Obligations
exceeds the L/C Commitment, the Borrower shall Cash Collateralize on such date
the outstanding Letters of Credit in an amount equal to the excess of the
aggregate maximum amount then available to be drawn under the Letters of Credit
over the L/C Commitment. Subject to Section 4.04, if on any date after giving
effect to any Cash Collateralization made on such date pursuant to the preceding
sentence, the Effective Amount of all Facility C Revolving Loans then
outstanding plus the Effective Amount of all L/C Obligations plus the Effective
Amount of all Swingline Loans then outstanding exceeds the combined Facility C
Commitments, the Borrower shall immediately, and without notice or demand,
prepay the outstanding principal amount of the Facility C Revolving Loans, any
L/C Advances and Swingline Loans by an aggregate amount equal to the applicable
excess.
(c) The Borrower shall immediately, and without notice or
demand, prepay the Obligations in full, including, without limitation, the
aggregate principal amount of all outstanding Loans, all accrued and unpaid
interest thereon and all amounts payable under Section 4.04 hereof, and all of
the Revolving Loan Commitments shall be automatically reduced to zero, in each
case on the 30th day after any Change of Control shall have occurred and be
continuing.
(d) If and to the extent that the Facility A Commitments and
the Facility C Commitments are not equal to zero on the Revolving Loan
Termination Date, such Revolving Loan Commitments shall be automatically reduced
to zero on the Revolving Loan Termination Date.
Repayment. .08 Repayment
Facility A Revolving Loans and Facility C Revolving Loans. The Borrower shall
repay to the Banks in full on the Revolving Loan Termination Date the aggregate
principal amount of Facility A Revolving Loans and Facility C Revolving Loans
outstanding on such date together with all accrued and unpaid interest thereon.
Facility B Term Loans. The Borrower shall repay to the Banks in full on the Term
Loan Maturity Date the aggregate principal amount of Facility B Term Loans
outstanding on such date together with all accrued and unpaid interest thereon.
Swingline Loans. The Borrower shall repay to BofA in full on the Revolving Loan
Termination Date the aggregate principal amount of Swingline Loans outstanding
on such date, together with all accrued and unpaid interest thereon.
Extension of Revolving Loan Termination Date. Each Bank, at its sole option and
in its sole discretion, upon the written request of Borrower given to Agent and
each Bank not more than 90 days nor less than 60 days prior to the Revolving
Loan Termination Date at any time in effect, may elect to extend such Revolving
Loan Termination Date by a period of one year. Within 30 days following receipt
of such request, each Bank shall give notice to Borrower and Agent of its
decision to extend or not to extend such Revolving Loan Termination Date. If, in
accordance with the immediately preceding sentence, all Banks shall have elected
to extend such Revolving Loan Termination Date, the Revolving Loan Termination
Date shall be extended by a period of one year. In the event that any Bank
notifies Borrower and Agent that it will not extend the Revolving Loan
Termination Date then in effect, or if any Bank fails to notify Borrower and
Agent of its decision to extend or not to extend such Revolving Loan Termination
Date, in either case within the applicable 30 day period referred to above, such
Revolving Loan Termination Date shall not be extended and the Revolving Loan
Termination Date then in effect shall be the Revolving Loan Termination Date for
all purposes of this Agreement.
Interest. (a) Each Loan shall bear interest on the outstanding principal amount
thereof from the applicable Borrowing Date at a rate per annum equal to the
Eurodollar Rate (other than with respect to Swingline Loans) or the Base Rate,
as the case may be (and subject to the Borrower's right to convert to other
Types of Loans under Section 2.04), plus the Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on each
applicable Interest Payment Date. Interest in all cases shall also be paid on
the date of any prepayment of Loans under subsection 2.07(c) and interest on
Eurodollar Rate Loans shall also be paid on the date of prepayment of Loans in
all other circumstances under Section 2.06 or 2.07, in each case for the portion
of the Loans so prepaid and upon payment (including prepayment) in full thereof
and, during the existence of any Event of Default, interest shall be paid on
demand of the Agent at the request or with the consent of the Majority Banks.
(c) Notwithstanding subsection (a) of this Section, while any
Event of Default exists or after acceleration, the Borrower shall pay interest
(after as well as before entry of judgment thereon to the extent permitted by
law) on the principal amount of all outstanding Obligations, at a rate per annum
which is determined by adding 2% per annum to the Applicable Margin then in
effect for such Loans and, in the case of Obligations not subject to an
Applicable Margin, including, without limitation, all letter of credit and
commitment fees provided herein, at a rate per annum equal to the Base Rate plus
the Applicable Margin plus 2%; provided, however, that, on and after the
expiration of any Interest Period applicable to any Eurodollar Rate Loan
outstanding on the date of occurrence of such Event of Default or acceleration,
the principal amount of such Loan shall, during the continuation of such Event
of Default or after acceleration, bear interest at a rate per annum equal to the
Base Rate plus the Applicable Margin plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Borrower to any Bank hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Bank would be contrary to
the provisions of any law applicable to such Bank limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such Bank,
and in such event the Borrower shall pay such Bank interest at the highest rate
permitted by applicable law.
Fees. In addition to certain fees described in Section 3.08:
Arrangement, Agency Fees. The Borrower shall pay an arrangement fee to the
Arranger for the Arranger's own account, and shall pay an agency fee to the
Agent for the Agent's own account, as required by the letter agreement ("Fee
Letter") between the Borrower and the Arranger and Agent dated July 1, 1996.
Commitment Fees. The Borrower shall pay to the Agent for the account of each
Bank a commitment fee with respect to such Bank's Facility A Commitment equal to
the Commitment Fee Rate per annum times the daily average amount by which such
Bank's Facility A Commitment exceeded the sum of the aggregate Effective Amount
of its Facility A Revolving Loans. The Borrower shall pay to the Agent for the
account of each Bank a commitment fee with respect to such Bank's Facility C
Commitment, equal to the Commitment Fee Rate per annum times the daily average
amount by which such Bank's Facility C Commitment exceeded the aggregate
Effective Amount of its Facility C Revolving Loans plus its Pro Rata Share of
the Effective Amount of L/C Obligations. Such commitment fees shall accrue from
the date of this Agreement to the Revolving Loan Termination Date and shall be
due and payable quarterly in arrears on the first Business Day of each fiscal
quarter following the quarter for which payment is to be made, commencing on the
Restatement Effective Date through the Revolving Loan Termination Date, with the
final payment to be made on the Revolving Loan Termination Date; provided that,
in connection with the full termination of Revolving Loan Commitments under
Section 2.05 or Section 2.07, the accrued commitment fees calculated for the
period ending on such date shall also be paid on the date of such termination.
The commitment fees provided in this subsection shall accrue at all times after
the above-mentioned commencement date, including at any time during which one or
more conditions in Article V are not met.
Computation of Fees and Interest. (a) All computations of interest for Base Rate
Loans when the Base Rate is determined by BofA's "reference rate" shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis
of a 360-day year and actual days elapsed (which results in more interest being
paid than if computed on the basis of a 365-day year). Interest and fees shall
accrue during each period during which interest or such fees are computed from
the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent shall
be conclusive and binding on the Borrower and the Banks in the absence of
manifest error.
Payments by the Borrower. (a) All payments to be made by the Borrower shall be
made without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by the Borrower shall be made to the Agent for the
account of the Banks at the Agent's Payment Office, and shall be made in dollars
and in immediately available funds, no later than 10:00 a.m. (San Francisco
time) on the date specified herein. The Agent will promptly distribute to each
Bank its Pro Rata Share (or other applicable share as expressly provided herein)
of such payment in like funds as received. Any payment received by the Agent
later than 10:00 a.m. (San Francisco time) shall be deemed to have been received
on the following Business Day and any applicable interest or fee shall continue
to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Agent receives notice from the Borrower prior
to the date on which any payment is due to the Banks that the Borrower will not
make such payment in full as and when required, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date in immediately
available funds and the Agent may (but shall not be so required), in reliance
upon such assumption, distribute to each Bank on such due date an amount equal
to the amount then due such Bank. If and to the extent the Borrower has not made
such payment in full to the Agent, each Bank shall repay to the Agent on demand
such amount distributed to such Bank, together with interest thereon at the
Federal Funds Rate for each day from the date such amount is distributed to such
Bank until the date repaid.
Payments by the Banks to the Agent. (a) Unless the Agent receives notice from a
Bank on or prior to the Restatement Effective Date or, with respect to any
Borrowing after the Restatement Effective Date, by 2:00 p.m. (San Francisco
time) on the Business Day prior to the date of such Borrowing, that such Bank
will not make available as and when required hereunder to the Agent for the
account of the Borrower the amount of that Bank's Pro Rata Share of the
Borrowing, the Agent may assume that each Bank has made such amount available to
the Agent in immediately available funds on the Borrowing Date and the Agent may
(but shall not be so required), in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent any
Bank shall not have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made available to the
Borrower such amount, that Bank shall on the Business Day following such
Borrowing Date make such amount available to the Agent, together with interest
at the Federal Funds Rate for each day during such period. A notice of the Agent
submitted to any Bank with respect to amounts owing under this subsection (a)
shall be conclusive, absent manifest error. If such amount is so made available,
such payment to the Agent shall constitute such Bank's Loan on the date of
Borrowing for all purposes of this Agreement. If such amount is not made
available to the Agent on the Business Day following the Borrowing Date, the
Agent will notify the Borrower of such failure to fund and, upon demand by the
Agent, the Borrower shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing
Date shall not relieve any other Bank of any obligation hereunder to make a Loan
on such Borrowing Date, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on any Borrowing Date.
Sharing of Payments, Etc. If, other than as expressly provided elsewhere herein,
any Bank shall obtain on account of the Loans made by it any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Pro Rata Share, such Bank shall immediately (a)
notify the Agent of such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to cause such
purchasing Bank to share the excess payment pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees
that any Bank so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Bank were the direct creditor of the Borrower in the amount of such
participation. The Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Banks following any such purchases or
repayments.
Discretionary Swingline Loans.Swingline Loans
(a) From time to time, subject to the conditions set forth
below, at the request of the Borrower, made through the Agent as set forth
below, BofA in its sole and absolute discretion may make short-term loans to the
Borrower not to exceed in the aggregate at any one time outstanding the
principal sum of $20,000,000, to be used by the Borrower to cover overdrafts,
for cash management purposes, or for other general working capital needs of the
Borrower (each, a "Swingline Loan"). The availability of Swingline Loans is
conditioned on the satisfaction of each of the following conditions: (i) it
shall be in the sole and absolute discretion of BofA, on each occasion that a
Swingline Loan is requested, whether to make such Swingline Loan; (ii) each
Swingline Loan shall bear interest from the time made until the time repaid, or
until the time, if any, that such Swingline Loan is converted into a Base Rate
Loan as provided below, at the rate(s) from time to time applicable to Base Rate
Loans hereunder; (iii) at the time of making of any Swingline Loan, the sum of
the Effective Amount of all outstanding Swingline Loans plus the Effective
Amount of all outstanding Facility C Revolving Loans plus the Effective Amount
of all L/C Obligations, without duplication, shall not exceed the aggregate
Facility C Commitment; (iv) each Swingline Loan, when made, all interest accrued
thereon, and all reimbursable costs and expenses incurred or payable in
connection therewith, shall constitute an Obligation of Borrower hereunder; and
(v) each request for a Swingline Loan from BofA pursuant to this Section 2.15
shall be made by the Borrower to the Agent, shall be funded by BofA through the
Agent, and shall be repaid by the Borrower through the Agent (in order that the
Agent may keep an accurate record of the outstanding balance at any time of
Swingline Loans so as to monitor compliance with the terms and provisions
hereof), and each such request shall be in writing unless the Agent in its sole
discretion accepts an oral or telephonic request. Each Swingline Loan shall be
made upon the Borrower's irrevocable written notice delivered to the Agent
substantially in the form of a Notice of Borrowing (which notice must be
received by the Agent prior to 1:00 p.m. (San Francisco time) on the requested
date of such Swingline Loan, specifying:
(i) the amount of the Swingline Loan, which shall be in a minimum amount of
$250,000 or any multiple of $100,000 in excess thereof; and
(ii) the requested date of such Swingline Loan, which shall be a Business Day;
(b) If any Swingline Loan made pursuant to this Section 2.15,
and in compliance with the conditions set forth in the immediately preceding
paragraph of this Section 2.15, is not repaid by the Borrower on or before the
seventh calendar day following the day that it was funded by BofA, BofA shall
have the right in BofA's sole and absolute discretion, by giving notice to the
Borrower and the Banks, to cause such Swingline Loan automatically upon the
giving of such notice to be converted into a Facility C Revolving Loan which is
a Base Rate Loan, and upon receipt of such notice each Bank shall fund to the
Agent, for the account of BofA, such Bank's ratable share of such Facility C
Revolving Loan, based on such Bank's Pro Rata Share; provided, that if any
Insolvency Proceeding has been commenced with respect to the Borrower on or
prior to the date on which such Swingline Loan is due, and in lieu of funding
its Pro Rata Share of a Facility C Revolving Loan, each Bank shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from BofA a
participation in such Swingline Loan equal to the product of such Bank's Pro
Rata Share times the amount of such Swingline Loan.
(c) Each Bank's obligation in accordance with this Agreement
to make Facility C Revolving Loans upon the failure of a Swingline Loan to be
repaid in full when due, or to purchase participations in such Swingline Loans,
shall, in each case, be absolute and unconditional and without recourse to BofA
and shall not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against BofA, the Borrower or any other Person for any reason whatsoever; (ii)
the occurrence or continuance of a Default, an Event of Default or a Material
Adverse Effect; or (iii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
ARTICLE III
THE LETTERS OF CREDIT
The Letter of Credit Subfacility. (a) On the terms and subject to the conditions
set forth herein and as a subfacility of the Facility C Commitment, (i) the
Issuing Banks agree, from time to time on any Business Day during the period
from the Restatement Effective Date to the date that is 30 days prior to the
Revolving Loan Termination Date to issue Letters of Credit for the account of
the Borrower and Stratton and to amend or renew Letters of Credit previously
issued by them, in each case in accordance with subsections 3.02(c) and 3.02(d);
and (ii) the Banks severally agree to participate in Letters of Credit Issued
for the account of the Borrower and Stratton; provided, that the Issuing Banks
shall not be obligated to Issue, and no Bank shall be obligated to participate
in, any Letter of Credit if, as of the date of Issuance of such Letter of Credit
(the "Issuance Date"), (1) the Effective Amount of all L/C Obligations plus the
Effective Amount of all Facility C Revolving Loans plus the Effective Amount of
all Swingline Loans exceeds the combined Facility C Commitments, or (2) the
Effective Amount of L/C Obligations exceeds the L/C Commitment. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
ability of the Borrower and Stratton to obtain Letters of Credit shall be fully
revolving, and, accordingly, the Borrower and Stratton may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit which have expired
or which have been drawn upon and reimbursed.
(b) No Issuing Bank is under any obligation to Issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Bank from Issuing such Letter of Credit, or any
Requirement of Law applicable to such Issuing Bank or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuing Bank shall
prohibit, or request that such Issuing Bank refrain from, the Issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon such Issuing Bank with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which such
Issuing Bank is not otherwise compensated hereunder) not in effect on
the Restatement Effective Date, or shall impose upon such Issuing Bank
any unreimbursed loss, cost or expense which was not applicable on the
Restatement Effective Date and which such Issuing Bank in good faith
deems material to it;
(ii) such Issuing Bank has received written notice
from any Bank, the Agent, the Borrower or Stratton, on or prior to the
Business Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained in
Article V is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is (A) with respect to Commercial Letters of Credit supporting
the purchase of inventory by the Borrower, more than (1) 180 days
after the date of Issuance or (2) 30 days prior to the Revolving Loan
Termination Date, unless the Majority Banks have approved such expiry
date in writing, or (B) with respect to any other Letter of Credit, 30
days prior to the Revolving Loan Termination Date, unless all of the
Banks have approved such expiry date in writing;
(iv) the expiry date of any requested Letter of
Credit is prior to the maturity date of any financial obligation to be
supported by the requested Letter of Credit;
(v) any requested Letter of Credit does not provide
for drafts (unless there is a demand for payment in the documentation
required to be delivered in connection with any drawing), or is not
otherwise in form and substance acceptable to such Issuing Bank, or
the Issuance of a Letter of Credit shall violate any applicable
policies of such Issuing Bank;
(vi) any Standby Letter of Credit is for the purpose
of supporting the issuance of any letter of credit by any other Person
other than with respect to any Existing Letter of Credit so designated
in Schedule 3.03; or
(vii) such Letter of Credit is to be used for a
purpose other than any permitted use of the proceeds of Facility C
Revolving Loans as set forth in Section 7.11.
Issuance, Amendment and Renewal of Letters of Credit. (a) Each Letter of Credit
shall be issued upon the irrevocable written request of the Borrower and, if
Stratton is the applicant, Stratton, received by the Issuing Bank (with a copy
sent by the Borrower or Stratton to the Agent) prior to 10:00 a.m. (San
Francisco time) on the proposed date of Issuance for Letters of Credit in the
form of Exhibit H, I or J hereto and at least four days prior to the proposed
date of Issuance for other forms of Letters of Credit. Each such request for
issuance of a Letter of Credit shall be by facsimile, confirmed by telephone, in
the form of an L/C Application, and shall specify in form and detail
satisfactory to the applicable Issuing Bank: (i) the proposed date of issuance
of the Letter of Credit (which shall be a Business Day); (ii) the face amount of
the Letter of Credit; (iii) the expiry date of the Letter of Credit; (iv) the
name and address of the beneficiary thereof; (v) the documents to be presented
by the beneficiary of the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented by the beneficiary in case
of any drawing thereunder; and (vii) such other matters as the Issuing Bank may
require.
(b) Prior to the Issuance of any Letter of Credit, the
applicable Issuing Bank will confirm with the Agent (by telephone or in writing)
that the Agent has received a copy of the L/C Application or L/C Amendment
Application from the Borrower and, if Stratton is the applicant, from Stratton
and, if not, such Issuing Bank will provide the Agent with a copy thereof.
Unless such Issuing Bank has received notice on or before 11:00 a.m. (San
Francisco time) on the date such Issuing Bank is to issue a requested Letter of
Credit from the Agent (A) directing such Issuing Bank not to issue such Letter
of Credit because such issuance is not then permitted under subsection 3.01(a)
as a result of the limitations set forth in clauses (1) or (2) thereof or
subsection 3.01(b)(ii); or (B) that one or more conditions specified in Article
V are not then satisfied; then, subject to the terms and conditions hereof, such
Issuing Bank shall, on the requested date, issue a Letter of Credit in
accordance with such Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding
and prior to the Revolving Loan Termination Date, any Issuing Bank will, upon
the written request of the Borrower and, if Stratton is the applicant, Stratton,
received by such Issuing Bank (with a copy sent by the Borrower or Stratton to
the Agent) at least four days (or such shorter time as such Issuing Bank may
agree in a particular instance in its sole discretion) prior to the proposed
date of amendment, amend any Letter of Credit issued by it. Each such request
for amendment of a Letter of Credit shall be made by facsimile, confirmed by
telephone, made in the form of an L/C Amendment Application and shall specify in
form and detail satisfactory to such Issuing Bank: (i) the Letter of Credit to
be amended; (ii) the proposed date of amendment of the Letter of Credit (which
shall be a Business Day); (iii) the nature of the proposed amendment; and (iv)
such other matters as such Issuing Bank may require. The applicable Issuing Bank
shall be under no obligation to amend any Letter of Credit if: (A) such Issuing
Bank would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms of this Agreement; or (B) the beneficiary of any
such Letter of Credit does not accept the proposed amendment to the Letter of
Credit. The Agent will promptly notify the Banks of the receipt by it of any L/C
Application or L/C Amendment Application.
(d) The Issuing Banks and the Banks agree that, while a Letter
of Credit is outstanding and prior to the Revolving Loan Termination Date, at
the option of the Borrower and Stratton and upon the written request of the
Borrower and, if Stratton is the applicant, Stratton, received by the applicable
Issuing Bank (with a copy sent by the Borrower or Stratton to the Agent) at
least four days (or such shorter time as such Issuing Bank may agree in a
particular instance in its sole discretion) prior to the proposed date of
notification of renewal, such Issuing Bank shall be entitled to authorize the
automatic renewal of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall be made by facsimile, confirmed by
telephone, in the form of an L/C Amendment Application, and shall specify in
form and detail satisfactory to such Issuing Bank: (i) the Letter of Credit to
be renewed; (ii) the proposed date of notification of renewal of the Letter of
Credit (which shall be a Business Day); (iii) the revised expiry date of the
Letter of Credit; and (iv) such other matters as such Issuing Bank may require.
The applicable Issuing Bank shall be under no obligation to so renew any Letter
of Credit if: (A) such Issuing Bank would have no obligation at such time to
issue or amend such Letter of Credit in its renewed form under the terms of this
Agreement; or (B) the beneficiary of any such Letter of Credit does not accept
the proposed renewal of the Letter of Credit. If any outstanding Letter of
Credit shall provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the applicable Issuing Bank that such
Letter of Credit shall not be renewed, and if at the time of renewal such
Issuing Bank would be entitled to authorize the automatic renewal of such Letter
of Credit in accordance with this subsection 3.02(d) upon the request of either
or both of the Borrower and Stratton, as applicable, but such Issuing Bank shall
not have received any L/C Amendment Application with respect to such renewal or
other written direction by either or both of the Borrower and Stratton, as
applicable, with respect thereto, such Issuing Bank shall nonetheless be
permitted to allow such Letter of Credit to renew, and the Borrower and Stratton
and the Banks hereby authorize such renewal, and, accordingly, such Issuing Bank
shall be deemed to have received an L/C Amendment Application from either or
both of the Borrower and Stratton, as applicable, requesting such renewal.
(e) The Issuing Banks may, at their election (or as required
by the Agent at the direction of the Majority Banks), deliver any notices of
termination or other communications to any Letter of Credit beneficiary or
transferee, and take any other action as necessary or appropriate, at any time
and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Revolving Loan Termination Date.
(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Banks will also deliver to the Agent,
concurrently or promptly following delivery of a Letter of Credit, or amendment
to or renewal of a Letter of Credit, to an advising bank or a beneficiary, a
true and complete copy of each such Letter of Credit or amendment to or renewal
of a Letter of Credit.
Existing Letters of Credit; Risk Participations, Drawings and Reimbursements.
(a) On and after the Restatement Effective Date, the Existing Letters of Credit
shall be deemed for all purposes, including for purposes of the fees to be
collected pursuant to subsections 3.08(a) and 3.08(c), and reimbursement costs
and expenses to the extent provided herein, Letters of Credit outstanding under
this Agreement and entitled to the benefits of this Agreement and the other Loan
Documents, and shall be governed by the applications and agreements pertaining
thereto and by this Agreement. Each Existing Letter of Credit designated as a
"standby letter of credit" on Schedule 3.03 shall be deemed to be a Standby
Letter of Credit, and each Existing Letter of Credit designated as a "commercial
documentary letter of credit" on Schedule 3.03 shall be deemed to be a
Commercial Letter of Credit. Each Bank shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Banks on
the Restatement Effective Date a participation in each such Letter of Credit and
each drawing thereunder in an amount equal to the product of (i) such Bank's Pro
Rata Share times (ii) the maximum amount available to be drawn under such Letter
of Credit and the amount of such drawing, respectively. For purposes of
subsection 2.01(a) and subsection 2.10(b), the Existing Letters of Credit shall
be deemed to utilize the Pro Rata Share of each Bank.
(b) Immediately upon the Issuance of each Letter of Credit in
addition to those described in subsection 3.03(a), each Bank shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the
applicable Issuing Bank a participation in such Letter of Credit and each
drawing thereunder in an amount equal to the product of (i) the Pro Rata Share
of such Bank, times (ii) the maximum amount available to be drawn under such
Letter of Credit and the amount of such drawing, respectively. For purposes of
subsection 2.01(a), each Issuance of a Letter of Credit shall be deemed to
utilize the Facility C Commitment of each Bank by an amount equal to the amount
of such participation.
(c) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the applicable Issuing Bank
will promptly notify the Borrower and, if Stratton is the applicant, Stratton.
The Borrower or Stratton shall reimburse such Issuing Bank prior to 10:00 a.m.
(San Francisco time), on each date that any amount is paid by such Issuing Bank
under any Letter of Credit (each such date, an "Honor Date"), in an amount equal
to the amount so paid by such Issuing Bank. In the event the Borrower or
Stratton fails to reimburse such Issuing Bank of any Letter of Credit for the
full amount of any drawing under such Letter of Credit by 10:00 a.m. (San
Francisco time) on the Honor Date, such Issuing Bank will promptly notify the
Agent and the Agent will promptly notify each Bank thereof, and the Borrower
shall be deemed to have requested that Base Rate Loans be made by the Banks to
be disbursed on the Honor Date under such Letter of Credit, subject to the
conditions set forth in Section 5.02 (including, without limitation, the
condition that no Insolvency Proceeding shall have been commenced by or against
the Borrower or Stratton on the Honor Date). Any notice given by an Issuing Bank
or the Agent pursuant to this subsection 3.03(c) may be oral if immediately
confirmed in writing (including by facsimile); provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.
(d) Each Bank shall upon any notice pursuant to subsection
3.03(c) make available to the Agent for the account of the applicable Issuing
Bank an amount in Dollars and in immediately available funds equal to its Pro
Rata Share of the amount of the drawing, whereupon the participating Banks shall
(subject to subsection 3.03(e)) each be deemed to have made a Facility C
Revolving Loan consisting of a Base Rate Loan to the Borrower in that amount. If
any Bank so notified fails to make available to the Agent for the account of the
applicable Issuing Bank the amount of such Bank's Pro Rata Share of the amount
of the drawing by no later than 11:00 a.m. (San Francisco time) on the Honor
Date, then interest shall accrue on such Bank's obligation to make such payment,
from the Honor Date to the date such Bank makes such payment, at a rate per
annum equal to the Federal Funds Rate in effect from time to time during such
period. The Agent will promptly give notice of the occurrence of the Honor Date,
but failure of the Agent to give any such notice on the Honor Date or in
sufficient time to enable any Bank to effect such payment on such date shall not
relieve such Bank from its obligations under this Section 3.03.
(e) With respect to any unreimbursed drawing that is not
converted into Facility C Revolving Loans consisting of Base Rate Loans to the
Borrower in whole or in part, because of the Borrower's failure to satisfy the
conditions set forth in Section 5.02 or for any other reason, the Borrower and
Stratton shall be deemed to have incurred from an Issuing Bank an L/C Borrowing
in the amount of such drawing, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin plus 2% per annum, and each
Bank's payment to such Issuing Bank pursuant to subsection 3.03(d) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Bank in satisfaction of its participation
obligation under this Section 3.03.
(f) Each Bank's obligation in accordance with this Agreement
to make the Facility C Revolving Loans or L/C Advances, as contemplated by this
Section 3.03, as a result of a drawing under a Letter of Credit, shall be
absolute and unconditional and without recourse to the Issuing Banks (except in
circumstances arising solely as a result of willful misconduct or gross
negligence by the Issuing Banks) and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense or other right
which such Bank may have against any Issuing Bank, the Borrower, Stratton or any
other Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default, an Event of Default or a Material Adverse Effect; or (iii) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
Repayment of Participations. (a) Upon (and only upon) receipt by the Agent for
the account of an Issuing Bank of immediately available funds from the Borrower
or Stratton (i) in reimbursement of any payment made by such Issuing Bank under
the Letter of Credit with respect to which any Bank has paid the Agent for the
account of such Issuing Bank for such Bank's participation in the Letter of
Credit pursuant to Section 3.03 or (ii) in payment of interest thereon, the
Agent will pay to each Bank, in the same funds as those received by the Agent
for the account of such Issuing Bank, the amount of such Bank's Pro Rata Share
of such funds, and such Issuing Bank shall receive the amount of the Pro Rata
Share of such funds of any Bank that did not so pay the Agent for the account of
such Issuing Bank.
(b) If the Agent or any Issuing Bank is required at any time
to return to the Borrower or Stratton, or to a trustee, receiver, liquidator,
custodian, or any official in any Insolvency Proceeding, any portion of the
payments made by the Borrower or Stratton to the Agent for the account of such
Issuing Bank pursuant to subsection 3.04(a) in reimbursement of a payment made
under the Letter of Credit or interest or fee thereon, each Bank shall, on
demand of the Agent, forthwith return to the Agent or such Issuing Bank the
amount of its Pro Rata Share of any amounts so returned by the Agent or such
Issuing Bank plus interest thereon from the date such demand is made to the date
such amounts are returned by such Bank to the Agent or such Issuing Bank, at a
rate per annum equal to the Federal Funds Rate in effect from time to time.
Role of the Issuing Banks. (a) Each Bank, the Borrower and Stratton agree that,
in paying any drawing under a Letter of Credit, the applicable Issuing Bank
shall not have any responsibility to obtain any document (other than any sight
draft and certificates expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of an Issuing Bank shall be liable to
any Bank for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Banks (including the Majority Banks, as
applicable); (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Borrower and Stratton hereby assume all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Borrower's or Stratton's pursuing such rights
and remedies as either may have against the beneficiary or transferee at law or
under any other agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of any Issuing Bank, shall be liable
or responsible for any of the matters described in clauses (i) through (vii) of
Section 3.06; provided, however, anything in such clauses to the contrary
notwithstanding, that the Borrower and Stratton may have a claim against an
Issuing Bank, and an Issuing Bank may be liable to the Borrower and Stratton, to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by the Borrower and Stratton which the Borrower
and Stratton prove were caused by an Issuing Bank's willful misconduct or gross
negligence or an Issuing Bank's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing: (i) an Issuing
Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) an Issuing Bank shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
Obligations Absolute. The obligations of the Borrower and Stratton under this
Agreement and any L/C-Related Document to reimburse the Issuing Banks for
drawings under Letters of Credit, and to repay any L/C Borrowing and any
drawings under Letters of Credit converted into Facility C Revolving Loans,
shall be unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement and each such other L/C-Related Document under
all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement or any L/C-Related
Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of
the Borrower and Stratton in respect of any Letter of Credit or any
other amendment or waiver of or any consent to departure from all or
any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that the Borrower or Stratton may have at any time against
any beneficiary or any transferee of any Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), an Issuing Bank or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by the
L/C-Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by an Issuing Bank under any Letter
of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any payment
made by an Issuing Bank under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Borrower or Stratton in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, the Borrower, Stratton or a guarantor.
Cash Collateral Pledge. Upon (i) the request of the Agent, (A) if an Issuing
Bank has honored any full or partial drawing request on any Letter of Credit and
such drawing has resulted in an L/C Borrowing hereunder, or (B) if, as of the
Revolving Loan Termination Date, any Letters of Credit may for any reason remain
outstanding and partially or wholly undrawn, or (ii) the occurrence of the
circumstances described in subsection 2.07(b) requiring the Borrower to Cash
Collateralize Letters of Credit, then, the Borrower shall immediately Cash
Collateralize the L/C Obligations in an amount equal to the L/C Obligations.
Letter of Credit Fees. (a) The Borrower agrees and, in the case of Standby
Letters of Credit issued for the account of Stratton, the Borrower and Stratton
jointly and severally agree, to pay to the Agent for the account of each of the
Banks based on their respective Pro Rata Shares a letter of credit fee (i) with
respect to the Standby Letters of Credit equal to the Standby Letter of Credit
Risk Participation Percentage of the average daily maximum amount available to
be drawn of the outstanding Standby Letters of Credit and (ii) with respect to
the Commercial Letters of Credit equal to the Commercial Letter of Credit Risk
Participation Percentage of the average daily maximum amount available to be
drawn of the outstanding Commercial Letters of Credit, in each case computed on
a quarterly basis in arrears on the last Business Day of each fiscal quarter
based upon Letters of Credit outstanding for that quarter as calculated by the
Agent. Such letter of credit fees shall be due and payable quarterly in arrears
on the first Business Day following each fiscal quarter during which Standby
Letters of Credit or Commercial Letters of Credit, as the case may be, are
outstanding, commencing on the first such quarterly date to occur after the
Restatement Effective Date, through the Revolving Loan Termination Date, with
the final payment to be made on the Revolving Loan Termination Date.
(b) The Borrower agrees and, in the case of Standby Letters of
Credit issued for the account of Stratton, the Borrower and Stratton jointly and
severally agree, to pay to the applicable Issuing Bank for its sole account a
letter of credit fronting fee (i) for each Standby Letter of Credit Issued by
such Issuing Bank, equal to 0.125% per annum of the face amount (or increased
face amount, as the case may be) of such Standby Letter of Credit and (ii) for
each Commercial Letter of Credit Issued by such Issuing Bank, equal to 0.10% per
annum of the face amount (or increased face amount, as the case may be) of such
Commercial Letter of Credit. Such Letter of Credit fronting fee shall be due and
payable quarterly in arrears on the first Business Day following each fiscal
quarter during which such Letter of Credit is outstanding, commencing on the
first such quarterly date to occur after the Restatement Effective Date, with
the final payment to be made on the Revolving Loan Termination Date.
(c) The Borrower agrees and, in the case of Standby Letters of
Credit issued for the account of Stratton, the Borrower and Stratton jointly and
severally agree, to pay to the Issuing Banks from time to time on demand the
normal issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the Issuing Banks relating to Standby Letters of
Credit and Commercial Letters of Credit as from time to time in effect.
Uniform Customs and Practice. The Uniform Customs and Practice for Documentary
Credits as published by the International Chamber of Commerce ("UCP") most
recently at the time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in the Letters of Credit) apply to such Letter of Credit.
Acknowledgment of Accommodation; Waiver of Defenses. (a) For the purposes of
implementing the provisions of this Article III, the Borrower and Stratton each
irrevocably appoints the other as its agent and attorney-in-fact for all
purposes, including the giving and receiving of notices and other
communications.
(b) Each of the Borrower and Stratton acknowledges and agrees
that Obligations for Letters of Credit issued for the account of Stratton have
been established on a joint and several basis as an accommodation to the
Borrower and Stratton and at their request, and that the Borrower is benefited
thereby.
(c) The Borrower shall be absolutely and unconditionally
liable for the repayment of all L/C Obligations, whether incurred by the
Borrower or Stratton, all as if the Borrower was the primary beneficiary of all
Letters of Credit.
(d) Each of the Borrower and Stratton authorizes the Agent and
the Banks, without notice or demand and without affecting the liability of
either hereunder, from time to time, either before or after the termination of
this Agreement, to (i) renew, compromise, extend, accelerate or otherwise change
the time for payment of, or otherwise change the terms of the L/C Obligations or
any other Obligation or any part thereof including any increase or decrease of
the rate of interest thereon; (ii) receive and hold security for the payment of
the L/C Obligations or any other Obligation, and exchange, enforce, waive,
release, fail to perfect, sell, or otherwise dispose of any such security; (iii)
apply such security and direct the order or manner of sale thereof as the Agent
in its discretion may determine; and (iv) release Stratton or any other party
and hold the Borrower liable for all L/C Obligations or other Obligations or
other Obligations of Stratton.
(e) The Borrower waives any right to require the Agent to (i)
proceed against the Borrower or Stratton in any particular order or proceed
first or concurrently against any other party; (ii) proceed against or exhaust
any security held from the Borrower or Stratton or any other party; or (iii)
pursue any other remedy in the Agent's or the Banks' power whatsoever. The
Borrower waives any defense arising by reason of any disability or other
defense, or the cessation from any cause whatsoever of the liability of the
Borrower or Stratton or any other party, or any claim that the obligations of
one exceed or are more burdensome than those of the other including, without
limitation, any defense of the Borrower arising directly or indirectly from the
failure of Stratton to obtain any required consent of any Governmental
Authority. The Borrower waives any right of subrogation, reimbursement,
indemnification and contribution (contractual, statutory or otherwise),
including without limitation, any claim or right of subrogation under the
Bankruptcy Code (Title 11 of the U.S. Code) or any successor statute, arising
from the existence or performance of its obligations hereunder, and waives any
right to enforce any remedy which the Agent or the Banks now have or may
hereafter have against either of them, and waives any benefit of and any right
to participate in any security now or hereafter held by the Agent or the Banks.
The Borrower waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and notices
of acceptance of this Agreement and of the existence, creation, or incurrence of
new or additional indebtedness.
(f) The Borrower warrants and agrees that the waivers and
consents set forth in this Section 3.10 are made with full knowledge of their
significance and with the understanding that events giving rise to any defense
waived may diminish, destroy or otherwise adversely affect rights which the
Borrower or Stratton may have against each other, the Agent, the Banks or
others.
(g) Stratton shall be liable only with respect to Letters of
Credit issued for its own account, and shall have no liability with respect to
Letters of Credit issued for the account of the Borrower. The parties
acknowledge that this letter of credit subfacility is made available for the
activities of the Borrower and Stratton. The parties further acknowledge that
Stratton, as a regulated insurance company, is prohibited from incurring
indebtedness on behalf of, or guarantying the indebtedness of, the Borrower
unless such incurrence or guaranty is directly related to Stratton's insurance
operations. Accordingly, the parties agree that, notwithstanding any other
provision of this Agreement to the contrary, Stratton shall have no obligation
to any party hereunder for any liability created hereunder except with respect
to the issuance, drawing, reimbursement, repayment, collateralization and
payment of interest, fees and other costs attributable to the Letters of Credit
issued for the account of Stratton for the benefit of persons to whom Stratton
has incurred or will incur liability arising out of the operation of Stratton's
insurance activities in the ordinary course of business.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
Taxes. (a) Any and all payments by the Borrower to each Bank or the Agent under
this Agreement and any other Loan Document shall be made free and clear of, and
without deduction or withholding for any Taxes. In addition,
the Borrower shall pay all Other Taxes.
(b) The Borrower agrees to indemnify and hold harmless each
Bank and the Agent for the full amount of Taxes or Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section) paid by the Bank or the Agent and any liability (including interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within 30 days after the date
the Bank or the Agent makes written demand therefor.
(c) If the Borrower shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then:
(i) the sum payable shall be increased as necessary
so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this Section) such Bank or the Agent, as the case may
be, receives an amount equal to the sum it would have received had no
such deductions or withholdings been made;
(ii) the Borrower shall make such deductions and withholdings;
(iii) the Borrower shall pay the full amount deducted
or withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) the Borrower shall also pay to each Bank or the
Agent for the account of such Bank, at the time interest is paid, all
additional amounts which the respective Bank specifies as necessary to
preserve the after-tax yield the Bank would have received if such
Taxes or Other Taxes had not been imposed.
(d) Within 30 days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish the Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Agent.
(e) If the Borrower is required to pay additional amounts to
any Bank or the Agent pursuant to subsection (c) of this Section, then such Bank
shall use reasonable efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Borrower which may thereafter accrue, if such change
in the judgment of such Bank is not otherwise disadvantageous to such Bank.
Illegality. (a) If any Bank determines that the introduction of any Requirement
of Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Bank or its applicable Lending Office to make Eurodollar Rate Loans,
then, on notice thereof by the Bank to the Borrower through the Agent, any
obligation of that Bank to make Eurodollar Rate Loans shall be suspended until
the Bank notifies the Agent and the Borrower that the circumstances giving rise
to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain any
Eurodollar Rate Loan, the Borrower shall, upon its receipt of notice of such
fact and demand from such Bank (with a copy to the Agent), prepay in full such
Eurodollar Rate Loans of that Bank then outstanding, together with interest
accrued thereon and amounts required under Section 4.04, either on the last day
of the Interest Period thereof, if the Bank may lawfully continue to maintain
such Eurodollar Rate Loans to such day, or immediately, if the Bank may not
lawfully continue to maintain such Eurodollar Rate Loan. If the Borrower is
required to so prepay any Eurodollar Rate Loan, then concurrently with such
prepayment, the Borrower shall borrow from the affected Bank, in the amount of
such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain
Eurodollar Rate Loans has been so terminated or suspended, the Borrower may
elect, by giving notice to the Bank through the Agent that all Loans which would
otherwise be made by the Bank as Eurodollar Rate Loans shall be instead Base
Rate Loans.
(d) Before giving any notice to the Agent under this Section,
the affected Bank shall designate a different Lending Office with respect to its
Eurodollar Rate Loans if such designation will avoid the need for giving such
notice or making such demand and will not, in the judgment of the Bank, be
illegal or otherwise disadvantageous to the Bank.
Increased Costs and Reduction of Return. (a) If any Bank determines that, due to
either (i) the introduction of or any change (other than any change by way of
imposition of or increase in reserve requirements included in the calculation of
the Eurodollar Rate or in respect of the assessment rate payable by any Bank to
the FDIC for insuring U.S. deposits) in or in the interpretation of any law or
regulation or (ii) the compliance by that Bank with any guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to such Bank of agreeing
to make or making, funding or maintaining any Eurodollar Rate Loans or
participating in Letters of Credit, or, in the case of any Issuing Bank, any
increase in the cost to such Issuing Bank of agreeing to issue, issuing or
maintaining any Letter of Credit or of agreeing to make or making, funding or
maintaining any unpaid drawing under any Letter of Credit, then the Borrower
shall be liable for, and shall from time to time, upon demand (with a copy of
such demand to be sent to the Agent), pay to the Agent for the account of such
Bank, additional amounts as are sufficient to compensate such Bank for such
increased costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by the Bank (or its Lending Office) or any corporation controlling
the Bank with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Bank or any
corporation controlling the Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy and such Bank's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Revolving Loan Commitments, Loans, credits or
obligations under this Agreement, then, upon demand of such Bank to the Borrower
through the Agent, the Borrower shall pay to the Bank, from time to time as
specified by the Bank, additional amounts sufficient to compensate the Bank for
such increase.
Funding Losses. The Borrower shall reimburse each Bank and hold each Bank
harmless from any loss or expense which the Bank may sustain or incur as a
consequence of:
(a) the failure of the Borrower to make on a timely basis any payment of
principal of any Eurodollar Rate Loan;
(b) the failure of the Borrower to borrow, continue or convert
a Loan after the Borrower has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Borrower to make any prepayment in accordance with any
notice delivered under Section 2.06;
(d) the prepayment (including pursuant to Section 2.07) or
other payment (including after acceleration thereof) of a Eurodollar Rate Loan
on a day that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.04 of any Eurodollar Rate Loan to a
Base Rate Loan on a day that is not the last day of the relevant Interest
Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Rate Loans or from fees
payable to terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by the Borrower to the Banks under this
Section and under subsection 4.03(a), each Eurodollar Rate Loan made by a Bank
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the LIBOR used in determining the
Eurodollar Rate for such Eurodollar Rate Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan is in fact so
funded.
Inability to Determine Rates. If the Agent determines that for any reason
adequate and reasonable means do not exist for determining the Eurodollar Rate
for any requested Interest Period with respect to a proposed Eurodollar Rate
Loan or that the Eurodollar Rate applicable pursuant to subsection 2.09(a) for
any requested Interest Period with respect to a proposed Eurodollar Rate Loan
does not adequately and fairly reflect the cost to such Banks of funding such
Loan, the Agent will promptly so notify the Borrower and each Bank. Thereafter,
the obligation of the Banks to make or maintain Eurodollar Rate Loans, hereunder
shall be suspended until the Agent upon the instruction of the Majority Banks
revokes such notice in writing. Upon receipt of such notice, the Borrower may
revoke any Notice of Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Borrower does not revoke such Notice, the Banks shall
make, convert or continue the Loans, as proposed by the Borrower, in the amount
specified in the applicable notice submitted by the Borrower, but such Loans
shall be made, converted or continued as Base Rate Loans instead of Eurodollar
Rate Loans.
Survival. The agreements and obligations of the Borrower in this Article IV
shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
Conditions to Effectiveness. The effectiveness of the amendment and restatement
of the Existing Credit Agreement is subject to the condition that the Agent have
received on or before July 31, 1996 all of the following, in form and substance
satisfactory to the Agent and, where provided below, each Bank, and in
sufficient copies for each Bank:
Credit Agreement and any Notes. This Agreement and any Notes requested by the
Banks, executed by each party thereto;
(b) Guaranty. A Guaranty in the form of Exhibit G hereto executed by Finance
Corp.;
Resolutions; Incumbency. Resolutions; Incumbency
(i) Copies of partnership authorizations for the
Borrower and resolutions of the board of directors of the General
Partner, Stratton and Finance Corp. authorizing the transactions
contemplated hereby and by the Guaranty, certified as of the
Restatement Effective Date by the Secretary or an Assistant Secretary
of the General Partner, Stratton and Finance Corp.;
(ii) A certificate of the Secretary or Assistant
Secretary of the General Partner certifying the names and true
signatures of the officers of the General Partner authorized to
execute, deliver and perform, as applicable, on behalf of the Borrower
and the General Partner, this Agreement and all other Loan Documents
to be delivered by the Borrower and the General Partner hereunder;
(iii) A certificate of the Secretary or Assistant
Secretary of Stratton certifying the names and true signatures of the
officers of Stratton authorized to execute, deliver and perform, as
applicable, on behalf of Stratton, this Agreement and all other Loan
Documents to be delivered by Stratton hereunder;
(iv) A certificate of the Secretary or Assistant Secretary of Finance Corp.
certifying the names and the signatures of the officers of Finance Corp.
authorized to execute, deliver and perform, as applicable, the Guaranty and all
other Loan Documents required to be delivered by Finance Corp. hereunder;
Organization Documents; Good Standing. Each of the following documents:
(i) the articles or certificate of incorporation and
the bylaws of the General Partner, Stratton and Finance Corp. and the
Certificate of Limited Partnership and the Limited Partnership
Agreement of the Borrower, in each case as in effect on the
Restatement Effective Date, certified by the Secretary or Assistant
Secretary of the General Partner, Stratton or Finance Corp., as
applicable, as of the Restatement Effective Date;
(ii) a good standing and tax good standing
certificate for the General Partner, Stratton, Finance Corp. and the
Borrower from the Secretary of State (or similar, applicable
Governmental Authority) of its state of incorporation or organization,
as applicable, and each other state designated by Agent where the
General Partner, Stratton, Finance Corp. or the Borrower conducts
significant business, in each case as of a recent date;
Legal Opinions. (e) Legal Opinions
(i) opinion of Bryan Cave LLP, counsel to the
Borrower, the General Partner, Stratton and the Guarantor, or of such
other counsel as are acceptable to the Agent and the Banks, addressed
to the Agent and the Banks, substantially in the form of Exhibit D;
and
(ii) a favorable opinion of Orrick, Herrington & Sutcliffe, special counsel to
the Agent;
Payment of Fees. Evidence of payment by the Borrower of all accrued and unpaid
fees, costs and expenses to the extent then due and payable on the Restatement
Effective Date, together with Attorney Costs of the Agent to the extent invoiced
prior to or on the Restatement Effective Date, plus such additional amounts of
Attorney Costs as shall constitute the Agent's reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude final settling of accounts
between the Borrower and the Agent); including any such costs, fees and expenses
arising under or referenced in the Fee Letter or otherwise in Sections 2.10 and
11.04;
Certificate. A certificate signed by a Responsible Officer and an officer of
Stratton, dated as of the Restatement Effective Date, stating that:
(i) the representations and warranties contained in Article VI are true and
correct on and as of such date, as though made on and as of such date;
(ii) no Default or Event of Default exists or would result from the Credit
Extension; and
(iii) there has occurred since April 30, 1996, no
event or circumstance that has resulted or could reasonably be
expected to result in a Material Adverse Effect.
Refinancing of Floating Rate Senior Notes. Evidence that the Floating Rate
Senior Notes will be refinanced in full on the Restatement Effective Date with
the proceeds of the Facility B Term Loan in accordance with the terms of the
1994 Indenture (which evidence shall include, without limitation, a certificate
of the Borrower to the effect that the deposit required to be made pursuant to
Section 3.05 of the 1994 Indenture in order to redeem the Floating Rate Senior
Notes in full shall be made on the Restatement Effective Date with the proceeds
of the Facility B Term Loan);
No Material Change. There shall have been no Material Adverse Effect between
April 30, 1996 and the Restatement Effective Date.
Trading Policies. The trading position policy and the supply inventory position
policy as in effect on the Restatement Effective Date, as evidenced by the
written policies delivered to the Agent, shall be satisfactory to the Agent and
the Majority Banks.
(k) Payments under Existing Credit Agreement. Evidence that
all interest and fees accrued under the Existing Credit Agreement through and
including the Restatement Effective Date shall have been paid by the Borrower.
Other Documents. Such other approvals, opinions, documents or materials as the
Agent or any Bank may request.
Conditions to All Credit Extensions. The obligation of each Bank to make any
Loan to be made by it (including its initial Loan) or to continue or convert any
Loan under Section 2.04 and the obligation of the Issuing Banks to Issue any
Letters of Credit (including any initial Letters of Credit) is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date, Conversion/Continuation Date or Issuance Date:
Notice, Application. The Agent shall have received (with, in the case of the
initial Loans only, a copy for each Bank) a Notice of Borrowing or a Notice of
Conversion/Continuation, as applicable, or in the case of any Issuance of any
Letter of Credit, the applicable Issuing Bank and the Agent shall have received
an L/C Application or L/C Amendment Application, as required under Section 3.02;
Continuation of Representations and Warranties. The representations and
warranties in Article VI shall be true and correct in all material respects on
and as of such Borrowing Date, Conversion/Continuation Date or Issuance Date
with the same effect as if made on and as of such Borrowing Date,
Conversion/Continuation Date or Issuance Date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct in all material respects as of such earlier
date); and
No Existing Default. No Default or Event of Default shall exist or shall result
from such Borrowing, continuation or conversion or Issuance.
Each Notice of Borrowing, Notice of Conversion/Continuation and L/C Application
or L/C Amendment Application submitted by the Borrower hereunder shall
constitute a representation and warranty by the Borrower hereunder, as of the
date of each such notice and as of each Borrowing Date, Conversion/Continuation
Date or Issuance Date, as applicable, that the conditions in Section 5.02 are
satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each of the Borrower, the General Partner and Stratton represents and
warrants to the Agent and each Bank that:
Corporate or Partnership Existence and Power. The General Partner, Stratton, the
MLP, the Borrower and each of its Subsidiaries:
(a) is a corporation or partnership duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
as now being or as proposed to be conducted and to execute, deliver, and perform
its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation or partnership
and is licensed and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification or license or where the failure so to qualify would
have a Material Adverse Effect; and
(d) is in compliance with all material Requirements of Law.
Corporate or Partnership Authorization; No Contravention. The execution,
delivery and performance by the Borrower, the General Partner and Stratton of
this Agreement and each other Loan Document to which the General Partner, the
Borrower or any Subsidiary is party, have been duly authorized by all necessary
partnership action on behalf of the Borrower and all necessary corporate action
on behalf of the General Partner and any Subsidiary, and do not and will not:
(a) contravene the terms of any of the General Partner's, the MLP's, the
Borrower's or any Subsidiary's Organization Documents;
(b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any Contractual
Obligation to which the General Partner, the MLP, the Borrower or any Subsidiary
is a party or any order, injunction, writ or decree of any Governmental
Authority to which such Person or its property is subject where such conflict,
breach, contravention or Lien could reasonably be expected to have a Material
Adverse Effect; or
(c) violate any material Requirement of Law.
Governmental Authorization. No approval, consent, exemption, authorization, or
other action by, or notice to, or filing with, any Governmental Authority is
necessary or required in connection with (a) the execution, delivery or
performance by, or enforcement against, the General Partner, the Borrower or any
Subsidiary of this Agreement or any other Loan Document, or (b) the continued
operation of Borrower's business as contemplated to be conducted after the date
hereof by the Loan Documents, except in each case such approvals, consents,
exemptions, authorizations or other actions, notices or filings (i) as have been
obtained, (ii) as may be required under state securities or Blue Sky laws, (iii)
as are of a routine or administrative nature and are either (A) not customarily
obtained or made prior to the consummation of transactions such as the
transactions described in clauses (a) or (b) or (B) expected in the judgment of
the Borrower to be obtained in the ordinary course of business subsequent to the
consummation of the transactions described in clauses (a) or (b), or (iv) that,
if not obtained, could not reasonably be expected to have a Material Adverse
Effect.
Binding Effect. This Agreement and each other Loan Document to which the General
Partner, the Borrower or any Subsidiary is a party constitute the legal, valid
and binding obligations of such Person, enforceable against such Person in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
Litigation. There are no actions, suits, proceedings, claims or disputes
pending, or to the best knowledge of the Borrower, threatened or contemplated,
at law, in equity, in arbitration or before any Governmental Authority, against
the General Partner, the MLP, the Borrower or any of its Subsidiaries or any of
their respective properties which:
(a) purport to affect or pertain to this Agreement or any other Loan Document or
any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Borrower or its
Subsidiaries, would reasonably be expected to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery or performance of this Agreement or any other
Loan Document, or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
No Default. No Default or Event of Default exists or would result from the
incurring, continuing or converting of any Obligations by the Borrower. As of
the Restatement Effective Date, neither the Borrower nor any Affiliate of the
Borrower is in default under or with respect to any Contractual Obligation in
any respect which, individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect, or that would, if such
default had occurred after the Restatement Effective Date, create an Event of
Default under subsection 9.01(e).
ERISA Compliance. (a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state law.
Each Plan which is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS and to the best knowledge
of the Borrower and the General Partner, nothing has occurred which would cause
the loss of such qualification.
(b) There are no pending, or to the best knowledge of Borrower
and the General Partner, threatened claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There has been no
prohibited transaction or other violation of the fiduciary responsibility rule
with respect to any Plan which could reasonably result in a Material Adverse
Effect.
(c) No ERISA Event has occurred or is reasonably expected to occur with respect
to any Pension Plan.
(d) No Pension Plan has any Unfunded Pension Liability.
(e) The Borrower has not incurred, nor does it reasonably
expect to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA).
(f) The Borrower has not transferred any Unfunded Pension
Liability to any Person or otherwise engaged in a transaction that could be
subject to Section 4069 of ERISA.
(g) Except as specifically disclosed in Schedule 6.07, no
trade or business (whether or not incorporated under common control with the
Borrower within the meaning of Section 414(b), (c), (m) or (o) of the Code)
maintains or contributes to any Pension Plan or other Plan subject to Section
412 of the Code. Except as specifically disclosed in Schedule 6.07, neither the
Borrower nor any Person under common control with the Borrower (as defined in
the preceding sentence) has ever contributed to any multiemployer plan within
the meaning of Section 4001(a)(3) of ERISA.
Use of Proceeds; Margin Regulations. The proceeds of the Loans are to be used
solely for the purposes set forth in and permitted by Section 7.11 and Section
8.07. Neither the Borrower nor any Affiliate of the Borrower is generally
engaged in the business of purchasing or selling Margin Stock or extending
credit for the purpose of purchasing or carrying Margin Stock.
Title to Properties. The Borrower and each Subsidiary have good record and
marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Restatement Effective
Date and subject to the preceding sentence, the property of the Borrower and its
Subsidiaries is subject to no Liens other than Permitted Liens.
Taxes. The General Partner has filed all Federal and other material tax returns
and reports required to be filed, for itself and for the Borrower, and has paid
all Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon it or its properties, income or assets otherwise
due and payable, except those which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Borrower
that would, if made, have a Material Adverse Effect.
Financial Condition. (a) The audited consolidated financial statements of the
General Partner, the Borrower, the MLP and their respective Subsidiaries dated
July 31, 1995 and the unaudited consolidated financial statements of the General
Partner, the Borrower, the MLP and their respective Subsidiaries dated April 30,
1996, in each case together with the related consolidated statements of income
or operations, shareholders' equity and cash flows for the fiscal periods ended
on those respective dates:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, subject to ordinary, good faith
year end audit adjustments;
(ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and results of
operations for the period covered thereby; and
(iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its
consolidated Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent
Obligations.
(b) Since April 30, 1996, there has been no Material Adverse Effect.
(c) The General Partner, the MLP, the Borrower and each of the
other Subsidiaries of the Borrower are each Solvent, both before and after
giving effect to the consummation of each of the transactions contemplated by
the Loan Documents.
Environmental Matters. The Borrower conducts in the ordinary course of business
a review of the effect of existing Environmental Laws and existing Environmental
Claims on its business, operations and properties, and as a result thereof the
Borrower has reasonably concluded that such Environmental Laws and Environmental
Claims could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
Regulated Entities. None of the Borrower or any Affiliate of the Borrower, is an
"Investment Company" within the meaning of the Investment Company Act of 1940.
The Borrower is not subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, any
state public utilities code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
No Burdensome Restrictions. Neither the Borrower nor any Subsidiary is a party
to or bound by any Contractual Obligation, or subject to any restriction in any
Organization Document, or any Requirement of Law, which could reasonably be
expected to have a Material Adverse Effect.
Copyrights, Patents, Trademarks and Licenses, etc. The Borrower or its
Subsidiaries own or are licensed or otherwise has the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Borrower or any
Subsidiary infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or, to the best knowledge
of the Borrower, threatened, and no patent, invention, device, application,
principle or any statute, law, rule, regulation, standard or code is pending or,
to the knowledge of the Borrower, proposed, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
Subsidiaries and Affiliates. The Borrower has no Subsidiaries or other
Affiliates other than those specifically disclosed in part (a) of Schedule 6.16
hereto and has no equity investments in any other corporation or entity other
than those Permitted Investments specifically disclosed in part (b) of Schedule
6.16.
Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or such Subsidiary operates.
Tax Status. The Borrower is subject to taxation under the Code only as a
partnership and not as a corporation.
Full Disclosure. None of the representations or warranties made by the Borrower
or any Affiliate of the Borrower in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Borrower or any Affiliate of the Borrower in connection
with the Loan Documents contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading as of the time when made or delivered.
Fixed Price Supply Contracts. None of the Borrower and its Subsidiaries is a
party to any contract for the supply of propane or other product except where
(a) the purchase price is set with reference to a spot index or indices
substantially contemporaneously with the delivery of such product or (b)
delivery of such propane or other product is to be made no more than one year
after the purchase price is agreed to.
Trading Policies. The Borrower has provided to the Agent an accurate and
complete summary of its trading position policy and supply inventory position
policy and the Borrower has complied in all respects with such policies.
Refinancing of Floating Rate Senior Notes. As of the Restatement Effective Date,
all actions, notices and consents required for the redemption in full of the
Floating Rate Senior Notes in compliance with the 1994 Indenture and the
Floating Rate Senior Notes have been made, taken and obtained.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Revolving Loan Commitment
hereunder, or any Loan or other Obligation shall remain unpaid or unsatisfied,
or any Letter of Credit shall remain outstanding, unless the Majority Banks
waive compliance in writing:
Financial Statements. The Borrower shall deliver to the Agent, in form and
detail satisfactory to the Agent and the Majority Banks and consistent with the
form and detail of financial statements and projections provided to the Agent by
the Borrower and its Affiliates prior to the Restatement Effective Date, with
sufficient copies for each Bank:
(a) as soon as available, but not later than 100 days after
the end of each fiscal year (commencing with the fiscal year ended July 31,
1996), a copy of the audited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such year and the related consolidated statements
of income or operations, partners' or shareholders' equity and cash flows for
such year, setting forth in each case in comparative form the figures for the
previous fiscal year, and accompanied by the opinion of a nationally-recognized
independent public accounting firm ("Independent Auditor") which report shall
state that such consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years. Such opinion shall not be qualified or limited in
any manner, including on account of any limitation on it because of a restricted
or limited examination by the Independent Auditor of any material portion of the
Borrower's or any Subsidiary's records;
(b) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year (commencing
with the fiscal quarter ended October 31, 1996), a copy of the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income, partners' or
shareholders' equity and cash flows for the period commencing on the first day
and ending on the last day of such quarter, and certified by a Responsible
Officer as fairly presenting, in accordance with GAAP (subject to ordinary, good
faith year-end audit adjustments), the financial position and the results of
operations of the Borrower and the Subsidiaries;
(c) as soon as available, but not later than 100 days after
the end of each fiscal year (commencing with the first fiscal year during all or
any part of which the Borrower had one or more Significant Subsidiaries), a copy
of an unaudited consolidating balance sheet of the Borrower and its Subsidiaries
as at the end of such year and the related consolidating statement of income,
partners' or shareholders' equity and cash flows for such year, certified by a
Responsible Officer as having been developed and used in connection with the
preparation of the financial statements referred to in subsection 7.01(a);
(d) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year (commencing
with the first fiscal quarter during all or any part of which the Borrower had
one or more Significant Subsidiaries), a copy of the unaudited consolidating
balance sheets of the Borrower and its Subsidiaries, and the related
consolidating statements of income, partners' or shareholders' equity and cash
flows for such quarter, all certified by a Responsible Officer as having been
developed and used in connection with the preparation of the financial
statements referred to in subsection 7.01(b);
(e) as soon as available, but not later than 60 days after the
end of each fiscal year (commencing with the fiscal year beginning August 1,
1996), projected consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of each of the current and following two fiscal years
and related projected consolidated statements of income, partners' or
shareholders' equity and cash flows for each such fiscal year, including therein
a budget for the current fiscal year, certified by a Responsible Officer as
having been developed and prepared by the Borrower in good faith and based upon
the Borrower's best estimates and best available information;
(f) as soon as available, but not later than 100 days after
the end of each fiscal year of the General Partner, commencing with the fiscal
year ended July 31, 1996, a copy of the unaudited (or audited, if available)
consolidated balance sheets of the General Partner as of the end of such fiscal
year and the related consolidated statements of income, shareholders' equity and
cash flows for such fiscal year, certified by a Responsible Officer as fairly
presenting, in accordance with GAAP, the financial position and the results of
operations of the General Partner and its Subsidiaries (or, if available,
accompanied by an opinion of an Independent Auditor as described in subsection
7.01(a)); and
(g) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year and, with
respect to the final fiscal quarter, concurrently with the financial statements
referred to in subsection 7.01(a), a trading position report as of the last day
of each fiscal quarter, certified by a Responsible Officer.
Certificates; Other Information. The Borrower shall furnish to the Agent, with
sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.01(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.01(a) and (b), a Compliance Certificate executed by
a Responsible Officer with respect to the periods covered by such financial
statements together with supporting calculations and such other supporting
detail as the Agent and Majority Banks shall require;
(c) promptly, copies of all financial statements and reports
that the Borrower, the General Partner, the MLP or Finance Corp. or any other
Subsidiary sends to its partners or shareholders, and copies of all financial
statements and regular, periodic or special reports (including Forms 10-K, 10-Q
and 8-K) that the Borrower or any Affiliate of the Borrower, the General
Partner, the MLP or Finance Corp. or any other Subsidiary may make to, or file
with, the SEC; and
(d) promptly, such additional information regarding the
business, financial or corporate affairs of the Borrower, the General Partner,
the MLP or Finance Corp. or any other Subsidiary as the Agent, at the request of
any Bank, may from time to time request.
Notices. The Borrower shall promptly notify the Agent and each Bank:
(a) of the occurrence of any Default or Event of Default, and of the occurrence
or existence of any event or circumstance that foreseeably will become a Default
or Event of Default;
(b) of any matter that has resulted or may reasonably be
expected to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of the
Borrower, the General Partner, the MLP or Finance Corp. or any other Subsidiary;
(ii) any dispute, litigation, investigation, proceeding or suspension between
the Borrower, the General Partner, the MLP or Finance Corp. or any other
Subsidiary and any Governmental Authority; or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting the Borrower,
the General Partner, the MLP or Finance Corp. or any other Subsidiary, including
pursuant to any applicable Environmental Laws;
(c) of any of the following events affecting the Borrower, the
General Partner, the MLP or Finance Corp. or any other Subsidiary, together with
a copy of any notice with respect to such event that may be required to be filed
with a Governmental Authority and any notice delivered by a Governmental
Authority to such Person with respect to such event:
(i) an ERISA Event;
(ii) if any of the representations and warranties in Section 6.07 ceases to be
true and correct;
(iii) the adoption of any new Pension Plan or other Plan subject to Section 412
of the Code;
(iv) the adoption of any amendment to a Pension Plan
or other Plan subject to Section 412 of the Code, if such amendment
results in a material increase in contributions or Unfunded Pension
Liability; or
(v) the commencement of contributions to any Pension Plan or other Plan subject
to Section 412 of the Code;
(d) of any material change in accounting policies or financial reporting
practices by the Borrower or any of its consolidated Subsidiaries; and
(e) not later than five Business Days after the effective date
of a change in the Borrower's trading position policy or inventory supply
position policy, of any change in either policy.
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Borrower or any
affected Affiliate proposes to take with respect thereto and at what time. Each
notice under subsection 7.03(a) shall describe with particularity any and all
clauses or provisions of this Agreement or other Loan Document that have been
(or foreseeably will be) breached or violated.
Preservation of Corporate or Partnership Existence, Etc. The General Partner and
the Borrower shall, and the Borrower shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
partnership or corporate existence and good standing under the laws of its state
or jurisdiction of organization or incorporation except in connection with
transactions permitted by Section 8.03;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business except
in connection with transactions permitted by Section 8.03 and sales of assets
permitted by Section 8.02;
(c) use reasonable efforts, in the ordinary course of business, to preserve its
business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
Maintenance of Property. The Borrower shall maintain, and shall cause each
Subsidiary to maintain, and preserve all its property which is used or useful in
its business in good working order and condition, ordinary wear and tear
excepted. The Borrower and each Subsidiary shall use the standard of care
typical in the industry in the operation and maintenance of its facilities.
Insurance. The Borrower shall maintain, and shall cause each Subsidiary to
maintain, with financially sound and reputable independent insurers, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
Payment of Obligations. The Borrower, the General Partner and Stratton shall,
and shall cause each Subsidiary to, pay and discharge as the same shall become
due and payable (except to the extent the failure to so pay and discharge could
not reasonably be expected to have a Material Adverse Effect), all their
respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges
or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Borrower, the General Partner,
Stratton or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a
Lien upon its property, unless such claims are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Borrower, the General Partner, Stratton 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.
Compliance with Laws. The Borrower shall comply, and shall cause each Subsidiary
to comply, in all material respects with all Requirements of Law of any
Governmental Authority having jurisdiction over it or its business (including
the Federal Fair Labor Standards Act), except such as may be contested in good
faith or as to which a bona fide dispute may exist.
Inspection of Property and Books and Records. The Borrower shall maintain and
shall cause each Subsidiary to maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower and such Subsidiary. The Borrower shall
permit, and shall cause each Subsidiary to permit, representatives and
independent contractors of the Agent or any Bank to visit and inspect any of
their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants, all at the expense of
the Borrower and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, when an Event of Default exists the Agent or any
Bank may do any of the foregoing at the expense of the Borrower at any time
during normal business hours and without advance notice.
Environmental Laws. The Borrower shall, and shall cause each Subsidiary to,
conduct its operations and keep and maintain its property in material compliance
with all Environmental Laws.
Use of Proceeds. The Borrower (and Stratton, with respect to Letters of Credit)
shall use the proceeds of (a) the Facility A Revolving Loans for working capital
purposes only, (b) the Facility B Term Loan for the purpose of refinancing, in
full, on the Restatement Effective Date the Floating Rate Senior Notes in
accordance with the terms of the 1994 Indenture and (c) the Facility C Revolving
Loans for working capital, Acquisitions and other general partnership purposes,
in each case not in contravention of any Requirement of Law or of any Loan
Document.
Financial Covenants.ncial Covenants
(a) Leverage Ratio. The Borrower shall maintain as of the last
day of each fiscal quarter a Leverage Ratio for the fiscal period consisting of
such fiscal quarter and the seven immediately preceding fiscal quarters, equal
to or less than (i) 4.25 to 1.00 for the fiscal quarters ending from and after
the Restatement Effective Date through and including July 31, 1999 and (ii) 4.00
to 1.00 for each fiscal quarter ending thereafter; provided, that to the extent
the Borrower borrows Loans to make Restricted Payments within 45 days after the
end of any fiscal quarter, the aggregate amount of Loans so borrowed shall be
added to the amount of Funded Debt outstanding at the end of such quarter for
purposes of determining the Leverage Ratio at the end of such quarter.
(b) Minimum Partners' Equity. The Borrower shall maintain at all times a minimum
Partners' Equity of not less than $100,000,000.
Trading Policies. The Borrower and its Affiliates shall comply with the
Borrower's trading position policy and supply inventory position policy as in
effect on July 5, 1994, copies of which have been provided to the Agent on or
prior to the Restatement Effective Date, provided, however, that the Borrower
and its Affiliates may, during any period of four consecutive fiscal quarters,
(a) increase the stop loss limit specified in either policy by up to 100% of the
amount of such limit as in effect on July 5, 1994 and (b) increase the volume
limit specified in either policy on the number of barrels of a single product or
of all products in the aggregate by up to 100% of each such number as in effect
on July 5, 1994. If the Borrower proposes to increase any such amounts in excess
of the amounts specified in the preceding sentence, the Borrower shall first
obtain the consent of the Agent and the Majority Banks.
Other General Partner Obligations.ner Obligations
(a) The General Partner shall cause the Borrower to pay and
perform each of its Obligations when due. The General Partner acknowledges and
agrees that it is executing this Agreement as a principal as well as the general
partner on behalf of the Borrower, and that its obligations hereunder as general
partner are full recourse obligations to the same extent as those of the
Borrower.
(b) The General Partner represents, warrants and covenants
that it is Solvent, both before and after giving effect to the consummation of
the transactions contemplated by the Loan Documents, and that it will remain
Solvent until all Obligations hereunder shall have been repaid in full and all
commitments shall have terminated.
(c) The General Partner, for so long as it is the general
partner of the Borrower, (i) agrees that its sole business will be to act as the
general partner of the Borrower, the MLP and any further limited partnership of
which the Borrower or the MLP is, directly or indirectly, a limited partner and
to undertake activities that are ancillary or related thereto (including being a
limited partner in the Borrower), (ii) shall not enter into or conduct any
business or incur any debts or liabilities except in connection with or
incidental to (A) its performance of the activities required or authorized by
the MLP Partnership Agreement or the Borrower's Partnership Agreement or
described in or contemplated by the MLP Registration Statement and (B) the
acquisition, ownership or disposition of Partnership Interests in the Borrower
or partnership interests in the MLP or any further limited partnership of which
the Borrower or the MLP is, directly or indirectly, a limited partner, except
that, notwithstanding the foregoing, employees of the General Partner may
perform services for Ferrell Companies, Inc. and its Affiliates.
(d) The General Partner agrees that, until all Obligations
hereunder shall have been repaid in full and all commitments shall have
terminated, it will not exercise any rights it may have (at law, in equity, by
contract or otherwise) to terminate, limit or otherwise restrict (whether
through repurchase or otherwise and whether or not the General Partner shall
remain a general partner in the Borrower) the ability of the Borrower to use the
name "Ferrellgas".
(e) The General Partner shall not take any action or refuse to
take any reasonable action the effect of which, if taken or not taken, as the
case may be, would be to cause the Borrower to be treated as an association
taxable as a corporation or otherwise to be taxed as an entity other than a
partnership for federal income tax purposes.
Other Stratton Obligations. Stratton shall not engage in any business other than
insuring potential general liability and worker's compensation liabilities of
the Borrower and its Affiliates, provided, however, that the maximum amount of
the liabilities insured by Stratton in any policy year shall not exceed $3
million per occurrence and $8 million in the aggregate.
Monetary Judgments. If one or more judgments, orders, decrees or arbitration
awards is entered against the Borrower or any Subsidiary involving in the
aggregate a liability (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage other than through a
standard reservation of rights letter) as to any single or related series of
transactions, incidents or conditions, of more than $10 million, then the
Borrower shall reserve for such amount in excess of $10 million, on a quarterly
basis, with each quarterly reserve being at least equal to one-twelfth of such
amount in excess of $10 million. Such amount so reserved shall be treated as
establishment of a reserve for purposes of calculating Available Cash hereunder.
Maintenance of Subsidiary. The Borrower agrees at all times to maintain Stratton
as a Wholly-Owned Subsidiary.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Bank shall have any Revolving Loan Commitment
hereunder, or any Loan or other Obligation shall remain unpaid or unsatisfied,
or any Letter of Credit shall remain outstanding, unless the Majority Banks
waive compliance in writing:
Limitation on Liens. The Borrower shall not, and shall not suffer or permit any
Subsidiary to, directly or indirectly, make, create, incur, assume or suffer to
exist any Lien upon or with respect to any part of its property or sell any of
its accounts receivable, whether now owned or hereafter acquired, other than the
following ("Permitted Liens"):
(a) Liens existing on the Restatement Effective Date set forth in Schedule 8.01
of the Existing Credit Agreement;
(b) Liens in favor of the Borrower or Liens to secure Indebtedness of a
Subsidiary to the Borrower or a Wholly-Owned Subsidiary;
(c) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Borrower or any Subsidiary,
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Borrower;
(d) Liens on property existing at the time acquired by the
Borrower or any Subsidiary, provided that such Liens were in existence prior to
the contemplation of such acquisition and do not extend to any assets other than
those of the Person acquired;
(e) Liens on any property or asset acquired by the Borrower or
any Subsidiary in favor of the seller of such property or asset and construction
mortgages on property, in each case, created within six months after the date of
acquisition, construction or improvement of such property or asset by the
Borrower or such Subsidiary to secure the purchase price or other obligation of
the Borrower or such Subsidiary to the seller of such property or asset or the
construction or improvement cost of such property in an amount up to 80% of the
total cost of the acquisition, construction or improvement of such property or
asset; provided that in each case, such Lien does not extend to any other
property or asset of the Borrower and its Subsidiaries;
(f) Liens incurred or pledges and deposits made in connection
with worker's compensation, unemployment insurance and other social security
benefits and Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature, in each
case, incurred in the ordinary course of business;
(g) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(h) Liens imposed by law, such as mechanics', carriers',
warehousemen's, materialmen's, and vendors' Liens, incurred in good faith in the
ordinary course of business with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings if a reserve or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made therefor;
(i) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property or minor irregularities
of title incident thereto that do not, in the aggregate, materially detract from
the value of the property or the assets of the Borrower or any of its
Subsidiaries or impair the use of such property in the operation of the business
of the Borrower or any of its Subsidiaries;
(j) Liens of landlords or mortgages of landlords, arising
solely by operation of law, on fixtures and movable property located on premises
leased by the Borrower or any of its Subsidiaries in the ordinary course of
business;
(k) financing statements filed or recorded with respect to
personal property leased by the Borrower and its Subsidiaries in the ordinary
course of business 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 8.05;
(l) judgment Liens to the extent that such judgments do not cause or constitute
a Default or an Event of Default;
(m) Liens incurred in the ordinary course of business of the
Borrower or any Subsidiary with respect to obligations that do not exceed
$5,000,000 in the aggregate at any one time outstanding and that (i) are not
incurred in connection with the borrowing of money or the obtaining of advances
or credit (other than trade credit in the ordinary course of business) and (ii)
do not in the aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by the Borrower
or such Subsidiary;
(n) Liens securing Indebtedness incurred to refinance
Indebtedness that has been secured by a Lien otherwise permitted under this
Agreement, provided that (i) any such Lien shall not extend to or cover any
assets or property not securing the Indebtedness so refinanced and (ii) the
refinancing Indebtedness secured by such Lien shall have been permitted to be
incurred under Section 8.05 hereof and shall not have a principal amount in
excess of the Indebtedness so refinanced;
(o) any extension or renewal, or successive extensions or
renewals, in whole or in part, of Liens permitted pursuant to the foregoing
clauses (a) through (n); provided that no such extension or renewal Lien shall
(i) secure more than the amount of Indebtedness or other obligations secured by
the Lien being so extended or renewed or (ii) extend to any property or assets
not subject to the Lien being so extended or renewed; and
(p) Liens in favor of the Agent, any Issuing Bank and the Banks relating to the
Cash Collateralization of the Borrower's Obligations.
Asset Sales. The Borrower shall not, and shall not permit any of its
Subsidiaries to, (i) sell, lease, convey or otherwise dispose of any assets
(including by way of a sale-and-leaseback) other than sales of inventory in the
ordinary course of business consistent with past practice (provided that the
sale, lease, conveyance or other disposition of all or substantially all of the
assets of the Borrower shall be governed by the provisions of Section 8.03
hereof and not by the provisions of this Section 8.02), or (ii) issue or sell
Equity Interests of any of its Subsidiaries, in the case of either clause (i) or
(ii) above, whether in a single transaction or a series of related transactions,
(A) that have a fair market value in excess of $5,000,000, or (B) for net
proceeds in excess of $5,000,000 (each of the foregoing, an "Asset Sale"),
unless (X) the Borrower (or the Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (evidenced by a resolution of the board of directors of the General
Partner (and, if applicable, the audit committee of such board of directors) set
forth in a certificate signed by a Responsible Officer and delivered to the
Agent) of the assets sold or otherwise disposed of and (Y) at least 80% of the
consideration therefor received by the Borrower or such Subsidiary is in the
form of cash; provided, however, that the amount of (1) any liabilities (as
shown on the Borrower's or such Subsidiary's most recent balance sheet or in the
notes thereto), of the Borrower or any Subsidiary (other than liabilities that
are by their terms subordinated in right of payment to the Obligations
hereunder) that are assumed by the transferee of any such assets and (2) any
notes or other obligations received by the Borrower or any such Subsidiary from
such transferee that are immediately converted by the Borrower or such
Subsidiary into cash (to the extent of the cash received), shall be deemed to be
cash for purposes of this provision; and provided, further, that the 80%
limitation referred to in this clause (Y) shall not apply to any Asset Sale in
which the cash portion of the consideration received therefrom, determined in
accordance with the foregoing proviso, is equal to or greater than what the
after-tax proceeds would have been had such Asset Sale complied with the
aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall
not be deemed to include (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 hereof 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.
Consolidations and Mergers.ons and Mergers
(a) The Borrower shall not consolidate or merge with or into
(whether or not the Borrower is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another Person
unless (i) the Borrower is the surviving Person, or the Person formed by or
surviving any such consolidation or merger (if other than the Borrower) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation or partnership organized or existing under
the laws of the United States, any state thereof or the District of Columbia;
and (ii) the Person formed by or surviving any such consolidation or merger (if
other than the Borrower) or Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
Obligations of the Borrower pursuant to an assumption agreement in a form
reasonably satisfactory to the Agent, under this Agreement; (iii) immediately
after such transaction no Default or Event of Default exists; and (iv) the
Borrower or any Person formed by or surviving any such consolidation or merger,
or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made (A) shall have Consolidated Net Worth
(immediately after the transaction but prior to any purchase accounting
adjustments resulting from the transaction) equal to or greater than the
Consolidated Net Worth of the Borrower immediately preceding the transaction and
(B) shall, at the time of such transaction and after giving pro forma effect
thereto as if such transaction had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test.
(b) Finance Corp. may not consolidate or merge with or into (whether or not
Finance Corp. 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 such transaction
shall be permitted under the terms and conditions of the 1994 Indenture.
(c) The Borrower or Finance Corp., as the case may be, shall
deliver to the Agent prior to the consummation of the proposed transaction
pursuant to the foregoing paragraphs (a) and (b) an officers' certificate to the
foregoing effect signed by a Responsible Officer and an opinion of counsel
satisfactory to the Agent stating that the proposed transaction complies with
this Agreement. The Agent and the Banks shall be entitled to conclusively rely
upon such officer's certificate and opinion of counsel.
(d) Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Borrower in accordance with this Section 8.03, the successor
Person formed by such consolidation or into or with which the Borrower is merged
or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Agreement referring to the "Borrower" shall
refer to or include instead the successor Person and not the Borrower), and may
exercise every right and power of the Borrower under this Agreement with the
same effect as if such successor Person had been named as the Borrower herein;
provided, however, that the predecessor Borrower shall not be relieved from the
obligation to pay the principal of, premium, if any, and interest on the
Obligations except in the case of a sale of all of such Borrower's assets that
meets the requirements of Section 8.03 hereof.
Acquisitions. Without limiting the generality of any other provision of this
Agreement, neither the Borrower nor any Subsidiary shall consummate any
Acquisition unless (i) the acquiree is primarily a retail propane distribution
business; (ii) such Acquisition is undertaken in accordance with all applicable
Requirements of Law; (iii) the prior, effective written consent or approval to
such Acquisition of the board of directors or equivalent governing body of the
acquiree is obtained; and (iv) immediately after giving effect thereto, no
Default or Event of Default will occur or be continuing and each of the
representations and warranties of the Borrower herein is true on and as of the
date of such Acquisition, both before and after giving effect thereto. Nothing
in Section 8.22 shall prohibit (x) the making by the Borrower of a Permitted
Acquisition indirectly through the General Partner, the MLP or any of its or
their Affiliates in a series of substantially contemporaneous transactions in
which the Borrower shall ultimately own the assets that are the subject of such
Permitted Acquisition or (y) the assumption of Acquired Debt in connection
therewith to the extent such Acquired Debt is provided by a Bank and, upon such
assumption, is (to the extent such Acquired Debt is not otherwise permitted to
be incurred by the Borrower pursuant to this Agreement) immediately repaid (with
the proceeds of Revolving Loans or otherwise).
Limitation on Indebtedness. The Borrower shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and the
Borrower shall not issue any Disqualified Interests and shall not permit any of
its Subsidiaries to issue any shares of preferred stock; provided, however, that
the Borrower may incur Indebtedness and any Subsidiary of the Borrower may incur
Acquired Debt if:
(a) the Fixed Charge Coverage Ratio for the Borrower's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred would have been at least 2.75 to 1
if such date is on or prior to August 1, 1996 and 3.00 to 1 if such
date is after August 1, 1996, in each case, determined on a pro forma
basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred at the
beginning of such four-quarter period; and
(b) either (x) such Indebtedness (A) shall be subordinated to
the Obligations on the terms and conditions set forth on part II of
Schedule 8.05, (B) shall not provide for any principal to be scheduled
to be due, or for the direct or indirect acquisition of such
Indebtedness, in either case prior to July 1, 2001, and (C) shall not
permit or require mandatory prepayment, acceleration or acquisition of
all or any part of such Indebtedness except on customary commercial
terms in all cases subject to the terms and conditions set forth on
part II of Schedule 8.05, or (y) such Indebtedness shall be Permitted
Senior Debt and the Senior Debt Ratio Test shall have been met at the
time of incurrence thereof.
The foregoing limitations of this Section 8.05 will not apply
to: (i) the Indebtedness represented by the Fixed Rate Senior Notes and any
Subsidiary Note Guarantees; (ii) the Obligations; (iii) the incurrence by the
Borrower of Indebtedness in respect of Capitalized Lease Obligations in an
aggregate principal amount not to exceed $15,000,000; (iv) the Existing
Indebtedness set forth on part I of Schedule 8.05; (v) the incurrence by the
Borrower or any of its Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the proceeds of which are used to extend, refinance, renew,
replace, defease or refund any then outstanding Indebtedness of the Borrower or
such Subsidiary not incurred in violation of this Agreement; (vi) Hedging
Obligations with respect to any floating rate Indebtedness that is permitted by
the terms of this Agreement to be outstanding; (vii) Indebtedness of any
Subsidiary of the Borrower to the Borrower or any of its Wholly-Owned
Subsidiaries; (viii) the incurrence by the Borrower or Stratton of Indebtedness
owing directly to its insurance carriers (without duplication) in connection
with the Borrower's, its Subsidiaries' or its Affiliates' self-insurance
programs or other similar forms of retained insurable rights for their
respective retail propane businesses, consisting of reinsurance agreements and
indemnification agreements (and guarantees of the foregoing) secured by Letters
of Credit, provided that the Indebtedness evidenced by such reinsurance
agreements, indemnification agreements, guarantees and Letters of Credit shall
be counted (without duplication) for purposes of all calculations pursuant to
the Fixed Charge Coverage Ratio test; (ix) Surety Instruments required in the
ordinary course of business or in connection with the enforcement of rights or
claims of the Borrower or any of its Subsidiaries or in connection with
judgments that do not result in a Default or Event of Default; (x) subject to
the provisions of Section 8.04, the incurrence by the Borrower (or any
Subsidiary of the Borrower that is a Guarantor) of Indebtedness in connection
with Acquisitions of retail propane businesses in favor of the sellers of such
businesses in a principal amount not to exceed $15,000,000 in any fiscal year or
$45,000,000 in the aggregate outstanding at any one time, provided that the
principal amount of such Indebtedness incurred in connection with any such
acquisition shall not exceed the fair market value of the assets so acquired,
and the Borrower shall deliver an officer's certificate to the Agent, signed by
a Responsible Officer, stating that the acquiring Person is Solvent, both before
and after giving effect to the Acquisition; (xi) Indebtedness assumed as
contemplated by Section 8.04 that is immediately repaid with the proceeds of
Revolving Loans or otherwise; and (xii) in addition to the Indebtedness
permitted under the foregoing clauses (i) through (xi), the incurrence by the
Borrower of Indebtedness in an aggregate principal amount outstanding not to
exceed $15,000,000 at any time, provided that any Indebtedness incurred pursuant
to this clause (xii) (A) shall be subordinated to the Obligations on the terms
and conditions set forth on part II of Schedule 8.05, (B) shall not provide for
any principal to be scheduled to be due, or for the direct or indirect
acquisition of such Indebtedness, in either case prior to July 1, 2001, and (C)
shall not permit or require mandatory prepayment, acceleration or acquisition of
all or any part of such Indebtedness except on customary commercial terms in all
cases subject to the terms and conditions set forth on part II of Schedule 8.05.
The "Senior Debt Ratio Test" will be met with respect to the
incurrence of any Indebtedness by the Borrower or any Subsidiary of the Borrower
if the ratio of (1) the aggregate outstanding principal amount of Senior Debt on
the date of and after giving effect to the incurrence of such Indebtedness (the
"Incurrence Date") to (2) Consolidated Cash Flow for the Borrower's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the Incurrence Date would have been 2.50 to
1 or less. For purposes of the computation in clause (1) of the foregoing
sentence, the outstanding principal amount of Indebtedness under this Agreement
shall be deemed to equal the aggregate amount of the Revolving Loan Commitments
and outstanding Facility B Term Loans hereunder. The foregoing 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 operations that have been made by the Borrower or any of its
Subsidiaries during the four-quarter reference period or subsequent to such
reference period and on or prior to the Incurrence Date in the manner set forth
in the definition of Leverage Ratio.
For purposes of this Section 8.05, any revolving Indebtedness
(under this Agreement or otherwise) shall be deemed to have been incurred only
at such time at which the agreements and instruments (or any amendments thereto
that increase the amount of such revolving Indebtedness) are executed, in an
amount equal to the maximum amount of such revolving Indebtedness permitted to
be borrowed thereunder.
Transactions with Affiliates. The Borrower shall not, and shall not permit any
of its Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
any contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Affiliate, including any Non-Recourse Subsidiary (each of
the foregoing, an "Affiliate Transaction"), unless (a) such Affiliate
Transaction is on terms that are no less favorable to the Borrower or the
relevant Subsidiary than those that would have been obtained in a comparable
transaction by the Borrower or such Subsidiary with an unrelated Person and (b)
with respect to (i) any Affiliate Transaction with an aggregate value in excess
of $500,000, a majority of the directors of the General Partner having no direct
or indirect economic interest in such Affiliate Transaction determines by
resolution that such Affiliate Transaction complies with clause (a) above and
approves such Affiliate Transaction and (ii) any Affiliate Transaction involving
the purchase or other acquisition or sale, lease, transfer or other disposition
of properties or assets other than in the ordinary course of business, in each
case, having a fair market value or for net proceeds in excess of $15,000,000,
the Borrower delivers to the Agent an opinion as to the fairness to the Borrower
or such Subsidiary from a financial point of view issued by an investment
banking firm of national standing; provided, however, that (i) any employment
agreement or stock option agreement entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Borrower (or the General Partner) or such Subsidiary, Restricted
Payments permitted by the provisions of Section 8.12, and transactions entered
into by the Borrower or Stratton in the ordinary course of business in
connection with reinsuring the self-insurance programs or other similar forms of
retained insurable risks of the retail propane businesses operated by the
Borrower, its Subsidiaries and its Affiliates, in each case, shall not be deemed
Affiliate Transactions, and (ii) nothing herein shall authorize the payments by
the Borrower to the General Partner or any other Affiliate of the Borrower for
administrative expenses incurred by such Person other than such out-of-pocket
administrative expenses as such Person shall incur and the Borrower shall pay in
the ordinary course of business.
Use of Proceeds. The Borrower shall not, and shall not suffer or permit any
Subsidiary to, use any portion of the Loan proceeds or any Letter of Credit,
directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or
otherwise refinance indebtedness of the Borrower or others incurred to purchase
or carry Margin Stock, (iii) to extend credit for the purpose of purchasing or
carrying any Margin Stock, or (iv) to acquire any security in any transaction
that is subject to Section 13 or 14 of the Exchange Act.
Use of Proceeds - Ineligible Securities. The Borrower shall not, directly or
indirectly, use any portion of the Loan proceeds or any Letter of Credit (i)
knowingly to purchase Ineligible Securities from the Arranger during any period
in which the Arranger makes a market in such Ineligible Securities, (ii)
knowingly to purchase during the underwriting or placement period Ineligible
Securities being underwritten or privately placed by the Arranger, or (iii) to
make payments of principal or interest on Ineligible Securities underwritten or
privately placed by the Arranger and issued by or for the benefit of the
Borrower or any Affiliate of the Borrower.
Contingent Obligations. The Borrower shall not, and shall not suffer or permit
any Subsidiary to, create, incur, assume or suffer to exist any Contingent
Obligations except:
(a) endorsements for collection or deposit in the ordinary course of business;
(b) subject to compliance with the trading policies in effect
from time to time as submitted to the Agent, Hedging Obligations entered into in
the ordinary course of business as bona fide hedging transactions;
(c) Subsidiary Note Guarantees, under the terms and conditions set forth in the
1994 Indenture and the Guaranties hereunder; and
(d) Guaranty Obligations permitted by Section 8.05.
Joint Ventures. The Borrower shall not, and shall not suffer or permit any
Subsidiary to enter into any Joint Venture.
Lease Obligations. The aggregate obligations of the Borrower and its
Subsidiaries for the payment of rent for any property under lease or agreement
to lease (including, without limitation, under or with respect to Synthetic
Leases) for any fiscal year shall not exceed the greater of $15 million or 15%
of Consolidated Cash Flow for such fiscal year.
Restricted Payments. The Borrower shall not and shall not permit any of its
Subsidiaries to, directly or indirectly (i) declare or pay any dividend or make
any distribution on account of the Borrower's or any Subsidiary's Equity
Interests (other than (x) dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Borrower, (y) dividends or distributions
payable to the Borrower or a Wholly-Owned Subsidiary of the Borrower that is a
Guarantor or (z) distributions or dividends payable pro rata to all holders of
Capital Interests of any such Subsidiary); (ii) purchase, redeem, call or
otherwise acquire or retire for value any Equity Interests of the Borrower or
any Subsidiary or other Affiliate of the Borrower (other than, subject to
compliance with Section 8.21, any such Equity Interests owned by a Wholly-Owned
Subsidiary of the Borrower that is a Guarantor); (iii) make any Investment other
than a Permitted Investment; or (iv) prepay, purchase, redeem, retire, defease
or refinance the Fixed Rate Senior Notes (all payments and other actions set
forth in clauses (i) through (iv) above being collectively referred to as
"Restricted Payments"), unless, at the time of such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof and each of the
representations and warranties of the Borrower set forth herein is
true on and as of the date of such Restricted Payment both before and
after giving effect thereto; and
(b) the Fixed Charge Coverage Ratio of the Borrower for the
Borrower's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the
date on which such Restricted Payment is made, calculated on a pro
forma basis as if such Restricted Payment had been made at the
beginning of such four-quarter period, would have been more than 2.25
to 1; and
(c) such Restricted Payment (the amount of any such payment,
if other than cash, to be determined by the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution in an
officer's certificate signed by a Responsible Officer and delivered to
the Agent), together with the aggregate of all other Restricted
Payments (other than any Restricted Payments permitted by the
provisions of clause (ii) of the penultimate paragraph of this Section
8.12) made by the Borrower and its Subsidiaries in the fiscal quarter
during which such Restricted Payment is made shall not exceed an
amount equal to the sum of (x) Available Cash of the Borrower for the
immediately preceding fiscal quarter (or, with respect to the first
fiscal quarter during which Restricted Payments are made, the amount
of Available Cash of the Borrower for the period commencing on the
date of this Agreement and ending on the last day of the immediately
preceding fiscal quarter), plus (y) the lesser of (i) the amount of
any Available Cash of the Borrower during the first 45 days of such
fiscal quarter and (ii) the excess of the aggregate amount of Loans
that the Borrower could have borrowed over the actual amount of Loans
outstanding, in each case as of the last day of the immediately
preceding fiscal quarter; and
(d) such Restricted Payment (other than (x) Restricted
Payments described in clause (i) of the first paragraph of this
Section 8.12 made during the fiscal quarter ending October 31, 1996
that do not exceed $16,000,000 in the aggregate or (y) any Restricted
Payments described in clauses (iii) or (iv) of the first paragraph of
this Section 8.12), the amount of which, if made other than with cash,
to be determined in accordance with clause (c) of this Section 8.12,
shall not exceed an amount equal to the excess of (A) Consolidated
Cash Flow of the Borrower and its Subsidiaries for the period from and
after the Restatement Effective Date through and including the last
day of the fiscal quarter ending immediately preceding the date of the
proposed Restricted Payment (the "Determination Period") over (B) the
sum of Consolidated Interest Expense of the Borrower and its
Subsidiaries for the Determination Period plus all capital
expenditures (other than Growth-Related Capital Expenditures) made by
the Borrower and its Subsidiaries during the Determination Period plus
the aggregate of all other Restricted Payments (other than (x)
Restricted Payments described in clause (i) of the first paragraph of
this Section 8.12 made during the fiscal quarter ending October 31,
1996 that do not exceed $16,000,000 in the aggregate or (y) any
Restricted Payments described in clauses (iii) or (iv) of the first
paragraph of this Section 8.12) made by the Borrower and its
Subsidiaries during the period from and after the Restatement
Effective Date through and including the date of the proposed
Restricted Payment plus $30,000,000; and
(e) with respect to any Restricted Payment described in clause
(iv) of the first paragraph of this Section 8.12, such Restricted
Payment is made in connection with a refinancing of the Fixed Rate
Senior Notes permitted by Section 8.05.
The foregoing provisions will not prohibit (i) the payment of
any distribution within 60 days after the date on which the Borrower becomes
committed to make such distribution, if at said date of commitment such payment
would have complied with the provisions of this Agreement; and (ii) the
redemption, repurchase, retirement or other acquisition of any Equity Interests
of the Borrower in exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to a Subsidiary of the Borrower) of other Equity
Interests of the Borrower (other than any Disqualified Interests).
Not later than the date of making any Restricted Payment, the
General Partner shall deliver to the 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
8.12 were computed, which calculations may be based upon the Borrower's latest
available financial statements.
Prepayments of Subordinated Indebtedness. The Borrower shall not, and shall not
permit any of its Subsidiaries to, (a) purchase, redeem, retire or otherwise
acquire for value, or set apart any money for a sinking, defeasance or other
analogous fund for, the purchase, redemption, retirement or other acquisition
of, or make any payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, any Indebtedness that is subordinated to the
Obligations, except for regularly scheduled payments of interest in respect of
such Indebtedness required pursuant to the instruments evidencing such
Indebtedness that are not made in contravention of the terms and conditions of
subordination set forth on part II of Schedule 8.05 or (b) directly or
indirectly, make any payment in respect of, or set apart any money for a
sinking, defeasance or other analogous fund on account of, Guaranty Obligations
subordinated to the Obligations. The foregoing provisions will not prohibit the
defeasance, redemption or repurchase of subordinated Indebtedness with the
proceeds of Permitted Refinancing Indebtedness.
Dividend and Other Payment Restrictions Affecting Subsidiaries. The Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary to (a) pay dividends
or make any other distributions to the Borrower or any of its Subsidiaries (1)
on its Capital Interests or (2) with respect to any other interest or
participation in, or interest measured by, its profits, (b) pay any indebtedness
owed to the Borrower or any of its Subsidiaries, (c) make loans or advances to
the Borrower or any of its Subsidiaries or (d) transfer any of its properties or
assets to the Borrower or any of its Subsidiaries, except for such encumbrances
or restrictions existing under or by reason of (i) Existing Indebtedness, (ii)
this Agreement, the 1994 Indenture, the Subsidiary Note Guarantees and the Fixed
Rate Senior Notes, (iii) applicable law, (iv) any instrument governing
Indebtedness or Capital Interests of a Person acquired by the Borrower or any of
its Subsidiaries as in effect at the time of such Acquisition (except to the
extent such Indebtedness was incurred in connection with or in contemplation of
such Acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that the Consolidated
Cash Flow of such Person to the extent that dividends, distributions, loans,
advances or transfers thereof is limited by such encumbrance or restriction on
the date of acquisition is not taken into account in determining whether such
acquisition was permitted by the terms of this Agreement, (v) customary
non-assignment provisions in leases entered into in the ordinary course of
business and consistent with past practices, (vi) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (d) above on the property so acquired, (vii)
Permitted Refinancing Indebtedness of any Existing Indebtedness, provided that
the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced or (viii) other
Indebtedness permitted to be incurred subsequent to the Restatement Effective
Date pursuant to the provisions of Section 8.05 hereof, provided that such
restrictions are no more restrictive than those contained in this Agreement.
Change in Business. The Borrower shall not, and shall not suffer or permit any
Subsidiary to, engage in any material line of business substantially different
from those lines of business carried on by the Borrower and its Subsidiaries on
the date hereof.
Accounting Changes. The Borrower shall not, and shall not suffer or permit any
Subsidiary to, make any significant change in accounting treatment or reporting
practices, except as required by GAAP, or change the fiscal year of the Borrower
or of any Subsidiary except as required by the Code.
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 Fixed Charge Coverage Ratio Test set forth in
paragraph (a) of Section 8.05 and (B) secured a Lien on such Indebtedness
pursuant to Section 8.01 or (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.
Restrictions On Nature Of Indebtedness And Activities Of Finance Corp.
Notwithstanding the provisions of Section 8.05 hereof, Finance Corp. shall not
incur any Indebtedness unless (a) the Borrower is a co-obligor or guarantor of
such Indebtedness or (b) the net proceeds of such Indebtedness are lent to the
Borrower, used to acquire outstanding debt securities issued by the Borrower or
used directly or indirectly to refinance or discharge Indebtedness permitted
under the limitations of this paragraph. Finance Corp. shall not engage in any
business not related directly or indirectly to obtaining money or arranging
financing for the Borrower.
Amendments of Organization Documents or 1994 Indenture or 1996 Indenture. The
Borrower shall not modify, amend, supplement or replace, nor permit any
modification, amendment, supplement or replacement of the Organization Documents
of the General Partner, Borrower or any Subsidiary of the Borrower, the 1994
Indenture, the Fixed Rate Senior Notes, the 1996 Indenture or the MLP Senior
Notes or any document executed and delivered in connection with any of the
foregoing, in any respect that would adversely affect the Banks, the Borrower's
ability to perform the Obligations, or the Guarantor's ability to perform its
obligations under the Guaranty, in each such case without the prior written
consent of the Agent and the Majority Banks. Furthermore, the Borrower shall not
permit any modification, amendment, supplement or replacement of the
Organization Documents of the MLP that would have a material effect on the
Borrower without the prior written consent of the Agent and the Majority Banks.
Fixed Price Supply Contracts. None of the Borrower and its Subsidiaries shall at
any time be a party or subject to any contract for the supply of propane or
other product except where (a) the purchase price is set with reference to a
spot index or indices substantially contemporaneously with the delivery of such
product or (b) delivery of such propane or other product is to be made no more
than one year after the purchase price is agreed to.
Operations through Subsidiaries. The Borrower shall not conduct any of its
operations through Subsidiaries unless: (a) such Subsidiary executes a Guaranty
substantially in the form of Exhibit G guaranteeing payment of the Obligations,
accompanied by an opinion of counsel to the Subsidiary addressed to the Agent
and the Banks as to the due authorization, execution, delivery and
enforceability of the Guaranty; (b) such Subsidiary agrees not to incur any
Indebtedness other than (i) trade debt and (ii) Acquired Debt permitted by
Section 8.05; (c) the Consolidated Cash Flow of such Subsidiary, when added to
Consolidated Cash Flow of all other Subsidiaries for any fiscal year, shall not
exceed 10% of the Consolidated Cash Flow of the Borrower and its Subsidiaries
for such fiscal year; and (d) the value of the assets of such Subsidiary, when
added to the value of the assets of all other Subsidiaries for any fiscal year,
shall not exceed 10% of the consolidated value of the assets of the Borrower and
its Subsidiaries for such fiscal year, as determined in accordance with GAAP.
Operations of MLP. Except in connection with an indirect Acquisition permitted
by Section 8.04, the General Partner and the Borrower shall not permit the MLP
or any of its Affiliates (including any Non-Recourse Subsidiary) to operate or
conduct any business substantially similar to that conducted by the Borrower and
its Subsidiaries within a 25 mile radius of any business conducted by the
Borrower and its Subsidiaries. In order to comply with this Section 8.22, the
Borrower may enter into one or more transactions by which its assets and
properties are "swapped" or "exchanged" for assets and properties of another
Person prior to or concurrently with another transaction which, but for such
swap or exchange would violate this Section, provided that (i) if the value of
the MLP's assets or units to be so swapped or exchanged exceeds $15 million, as
determined by the audit committee of the Board of Directors of the General
Partner, the Borrower shall have first obtained at its expense an opinion from a
nationally recognized investment banking firm, addressed to it, the Agent and
the Banks and opining without material qualification and based on assumptions
that are realistic at the time, that the exchange or swap transactions are fair
to the Borrower and its Subsidiaries, and (ii) if the value of the MLP's assets
or units to be so swapped or exchanged exceeds $50 million, as determined by the
audit committee of the Board of Directors of the General Partner, at the option
of the Majority Banks, the Agent shall have first retained, at the Borrower's
expense, an investment banking firm on behalf of the Banks who shall also have
rendered an opinion containing the statements and content referred to in clause
(i).
ARTICLE IX
EVENTS OF DEFAULT
Event of Default. Any of the following shall constitute an "Event of Default":
Non-Payment. The Borrower, the General Partner or Stratton fails to pay, (i)
when and as required to be paid herein, any amount of principal of any Loan or
of any L/C Obligation, or (ii) within 5 days after the same becomes due, any
interest, fee or any other amount payable hereunder or under any other Loan
Document; or
Representation or Warranty. Any representation or warranty by the Borrower, the
General Partner or any Subsidiary made or deemed made herein, in any other Loan
Document, or which is contained in any certificate, document or financial or
other statement by the Borrower, the General Partner, any Subsidiary, or any
Responsible Officer, furnished at any time under this Agreement, or in or under
any other Loan Document, is incorrect in any material respect on or as of the
date made or deemed made; or
Specific Defaults. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of
Sections 2.01(a)(ii), 7.01, 7.02, 7.03, 7.04, 7.06, 7.09, 7.12, 7.13, 7.16 or in
any Section in Article VIII; or
Other Defaults. The Borrower, the General Partner or any Subsidiary fails to
perform or observe any other term or covenant contained in this Agreement or any
other Loan Document, and such default shall continue unremedied for a period of
20 days after the earlier of (i) the date upon which a Responsible Officer knew
or reasonably should have known of such failure or (ii) the date upon which
written notice thereof is given to the Borrower by the Agent or any Bank; or
Cross-Default. The Borrower, the General Partner or any Subsidiary (i) fails to
make any payment in respect of any Indebtedness or Contingent Obligation having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $10,000,000 when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) and such
failure continues after the applicable grace or notice period, if any, specified
in the relevant document on the date of such failure; or (ii) fails to perform
or observe any other condition or covenant, or any other event 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
Insolvency; Voluntary Proceedings. The General Partner, the MLP, the Borrower or
any Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or
Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced
or filed against the General Partner, the MLP, the Borrower or any Subsidiary,
or any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of any such Person's properties, and
any such proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing or levy; (ii)
the General Partner, the MLP, the Borrower or any Subsidiary admits the material
allegations of a petition against it in any Insolvency Proceeding, or an order
for relief (or similar order under non-U.S. law) is ordered in any Insolvency
Proceeding; or (iii) the General Partner, the MLP, the Borrower or any
Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business;
or
ERISA. (i) An ERISA Event occurs with respect to a Pension Plan which has
resulted or could reasonably be expected to result in liability of the Borrower
or the General Partner under Title IV of ERISA to the Pension Plan or the PBGC
in an aggregate amount in excess of $5 million; or (ii) the commencement or
increase of contributions to, or the adoption of or the amendment of a Pension
Plan by the Borrower, the General Partner or any of their Affiliates which has
resulted or could reasonably be expected to result in an increase in Unfunded
Pension Liability among all Pension Plans in an aggregate amount in excess of $5
million.
Monetary Judgments. One or more judgments, orders, decrees or arbitration awards
is entered against the Borrower, the General Partner or any Subsidiary involving
in the aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage) as to
any single or related series of transactions, incidents or conditions, of more
than $40,000,000; or
Non-Monetary Judgments. Any non-monetary judgment, order or decree is entered
against the Borrower, the General Partner or any Subsidiary which does or would
reasonably be expected to have a Material Adverse Effect, and there shall be any
period of 60 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
Loss of Licenses. Any Governmental Authority revokes or fails to renew any
material license, permit or franchise of the Borrower or any Subsidiary, or the
Borrower or any Subsidiary for any reason loses any material license, permit or
franchise, or the Borrower or any Subsidiary suffers the imposition of any
restraining order, escrow, suspension or impound of funds in connection with any
proceeding (judicial or administrative) with respect to any material license,
permit or franchise; or
Adverse Change. There occurs a Material Adverse Effect; or
Certain Indenture Defaults, Etc. (i) To the extent not otherwise within the
scope of subsection 9.01(e) above, any "Event of Default" shall occur and be
continuing under and as defined in the 1994 Indenture; or (ii) any of the
following shall occur under or with respect to the 1996 Indenture or any other
Indebtedness guaranteed by the Borrower or its Subsidiaries (collectively, the
"Guaranteed Indebtedness"): (A) any demand for payment shall be made under any
such Guaranty Obligation with respect to the Guaranteed Indebtedness or (B) so
long as any such Guaranty Obligation shall be in effect (x) the Borrower or any
such Subsidiary shall fail to pay principal of or premium, if any, or interest
on such Guaranteed Indebtedness after the expiration of any applicable notice or
cure periods or (y) any "Event of Default" (however defined) shall occur and be
continuing under such Guaranteed Indebtedness which results in the acceleration
of such Guaranteed Indebtedness; or
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
occurs with respect to the Guarantor.
Remedies. If any Event of Default occurs, the Agent shall, at the request of, or
may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Loans and any
obligation of an Issuing Bank to Issue Letters of Credit to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable;
(c) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and
payable (including, without limitation, amounts due under Section 4.04), without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; and
(d) exercise on behalf of itself and the Banks all rights and remedies available
to it and the Banks under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 9.01 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each Bank
to make Loans and any obligation of the Issuing Banks to Issue Letters of Credit
shall automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable without further act of the Agent, any Issuing Bank or any Bank.
Rights Not Exclusive. The rights provided for in this Agreement and the other
Loan Documents are cumulative and are not exclusive of any other rights, powers,
privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter arising.
Certain Financial Covenant Defaults. In the event that, after taking into
account any extraordinary charge to earnings taken or to be taken as of the end
of any fiscal period of the Borrower (a "Charge"), and if solely by virtue of
such Charge, there would exist an Event of Default due to the breach of any of
subsections 7.12(a) or 7.12(b) as of such fiscal period end date, such Event of
Default shall be deemed to arise upon the earlier of (a) the date after such
fiscal period end date on which the Borrower announces publicly it will take, is
taking or has taken such Charge (including an announcement in the form of a
statement in a report filed with the SEC) or, if such announcement is made prior
to such fiscal period end date, the date that is such fiscal period end date,
and (b) the date the Borrower delivers to the Agent its audited annual or
unaudited quarterly financial statements in respect of such fiscal period
reflecting such Charge as taken.
ARTICLE X
THE AGENT
Appointment and Authorization. (a) Each of the Banks and each Issuing Bank
hereby irrevocably appoints, designates and authorizes the Agent to take such
action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Bank or any Issuing Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent. The Co-Agent shall have no duties or
responsibilities in such capacity under this Agreement.
(b) Each Issuing Bank shall act on behalf of the Banks with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Agent may agree at the
request of the Majority Lenders to act for such Issuing Bank with respect
thereto; provided, however, that such Issuing Bank shall have all of the
benefits and immunities (i) provided to the Agent in this Article X with respect
to any acts taken or omissions suffered by such Issuing Bank in connection with
Letters of Credit Issued by it or proposed to be Issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Agent", as used in this Article X, included such
Issuing Bank with respect to such acts or omissions, and (ii) as additionally
provided in this Agreement with respect to such Issuing Bank.
Delegation of Duties. The Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
Liability of Agent and Issuing Banks. None of the Agent-Related Persons and
Issuing Banks shall (i) be liable for any action taken or omitted to be taken by
any of them under or in connection with this Agreement or any other Loan
Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner to any
of the Banks for any recital, statement, representation or warranty made by the
Borrower or any Subsidiary or Affiliate of the Borrower, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of the Borrower or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Borrower or any of the Borrower's Subsidiaries or Affiliates.
Reliance by Agent and Issuing Banks. (a) The Agent and each Issuing Bank shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Borrower), independent accountants and
other experts selected by the Agent or applicable Issuing Bank. The Agent and
each Issuing Bank shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent and each
Issuing Bank shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in accordance with
a request or consent of the Majority Banks and such request and any action taken
or failure to act pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Agent or an Issuing Bank to such
Bank for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to the Bank.
Notice of Default. The Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
the Agent for the account of the Banks, unless the Agent shall have received
written notice from a Bank or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". The Agent will notify the Banks of its receipt of any such
notice. The Agent shall take such action with respect to such Default or Event
of Default as may be requested by the Majority Banks in accordance with Article
IX; provided, however, that unless and until the Agent has received any such
request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Banks.
Credit Decision. Each Bank acknowledges that none of the Agent-Related Persons
or any Issuing Bank has made any representation or warranty to it, and that no
act by the Agent or any Issuing Bank hereinafter taken, including any review of
the affairs of the Borrower and its Subsidiaries, shall be deemed to constitute
any representation or warranty by any Agent-Related Person or any Issuing Bank
to any Bank. Each Bank represents to the Agent and the Issuing Banks that it
has, independently and without reliance upon any Agent-Related Person or any
Issuing Bank and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
hereunder. Each Bank also represents that it will, independently and without
reliance upon any Agent-Related Person or any Issuing Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents to be furnished to the Banks by the Agent or any Issuing Bank as
specified on Schedule 10.06, neither the Agent nor any Issuing Bank shall have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Borrower which may come into the
possession of any of the Agent-Related Persons or any Issuing Bank. The Agent
shall promptly deliver to the Banks the items specified on Schedule 10.06 that
are required to be provided by the Borrower only to the extent such items are
actually provided by the Borrower.
Indemnification. Whether or not the transactions contemplated hereby are
consummated, the Banks shall indemnify upon demand the Agent-Related Persons and
the Issuing Banks (to the extent not reimbursed by or on behalf of the Borrower
and without limiting the obligation of the Borrower to do so), pro rata in
accordance with its Pro Rata Share on the date the Borrower's reimbursement
obligation arises, from and against any and all Indemnified Liabilities;
provided, however, that no Bank shall be liable for the payment to the
Agent-Related Persons or the Issuing Banks of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse the
Agent and the Issuing Banks upon demand for their ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by them in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Agent or the applicable Issuing Bank
is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent or any Issuing Bank.
Agent in Individual Capacity. BofA and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Borrower and its Subsidiaries
and Affiliates as though BofA were not the Agent or an Issuing Bank hereunder
and without notice to or consent of the Banks. The Banks acknowledge that,
pursuant to such activities, BofA or its Affiliates may receive information
regarding the Borrower or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Borrower or such
Subsidiary) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans and participations
in Letters of Credit, BofA shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not the
Agent or an Issuing Bank.
Successor Agent. The Agent may, and at the request of the Majority Banks shall,
resign as Agent upon 30 days' notice to the Banks. If the Agent resigns under
this Agreement, the Majority Banks shall appoint from among the Banks a
successor agent for the Banks. If no successor agent is appointed prior to the
effective date of the resignation of the Agent, the Agent may appoint, after
consulting with the Banks and the Borrower, a successor agent from among the
Banks. Upon the acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor agent and the
retiring Agent's appointment, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article X and Sections 11.04 and 11.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective and
the Banks shall perform all of the duties of the Agent hereunder until such
time, if any, as the Majority Banks appoint a successor agent as provided for
above. Notwithstanding the foregoing, however, BofA may not be removed as the
Agent at the request of the Majority Banks unless BofA shall also simultaneously
be replaced as an "Issuing Bank" hereunder pursuant to documentation in form and
substance reasonably satisfactory to BofA.
Withholding Tax. (a) If any Bank is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
Bank agrees with and in favor of the Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty,
properly completed IRS Forms 1001 and W-8 before the payment of any
interest in the first calendar year and before the payment of any
interest in each third succeeding calendar year during which interest
may be paid under this Agreement;
(ii) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax because it
is effectively connected with a United States trade or business of
such Bank, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year of
such Bank and in each succeeding taxable year of such Bank during
which interest may be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Borrower to such Bank, such Bank agrees to
notify the Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Borrower to such Bank. To the extent of
such percentage amount, the Agent will treat such Bank's IRS Form 1001 as no
longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of the
Borrower to such Bank, such Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Bank
an amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by subsection (a)
of this Section are not delivered to the Agent, then the Agent may withhold from
any interest payment to such Bank not providing such forms or other
documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered, was not properly executed, or
because such Bank failed to notify the Agent of a change in circumstances which
rendered the exemption from, or reduction of, withholding tax ineffective, or
for any other reason) such Bank shall indemnify the Agent fully for all amounts
paid, directly or indirectly, by the Agent as tax or otherwise, including
penalties and interest, and including any taxes imposed by any jurisdiction on
the amounts payable to the Agent under this Section, together with all costs and
expenses (including Attorney Costs). The obligation of the Banks under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of the Agent.
ARTICLE XI
MISCELLANEOUS
Amendments and Waivers. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent with respect to any
departure by the Borrower or the General Partner therefrom, shall be effective
unless the same shall be in writing and signed by the Majority Banks (or by the
Agent at the written request of the Majority Banks) and the Borrower and
acknowledged by the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Banks, the Borrower, Stratton and the
General Partner and acknowledged by the Agent, do any of the following:
(a) increase or extend the Revolving Loan Commitment of any Bank (or reinstate
any Revolving Loan Commitment terminated pursuant to Section 9.02);
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to the Banks (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (ii) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Revolving Loan Commitments or
of the aggregate unpaid principal amount of the Loans which is required for the
Banks or any of them to take any action hereunder;
(e) amend this Section, or Section 2.14, or any provision herein providing for
consent or other action by all Banks; or
(f) release any of the Guaranties;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Banks in addition to the Majority Banks or all
the Banks, as the case may be, affect the rights or duties of the Issuing Banks
under this Agreement or any L/C-Related Document relating to any Letter of
Credit Issued or to be Issued by any such Issuing Bank, (ii) no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Majority Banks or all the Banks, as the case may be, affect the rights or
duties of the Agent under this Agreement or any other Loan Document, and (iii)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed solely by the parties thereto.
Notices. (a) Except as otherwise specifically provided in Section 3.02, all
notices, requests and other communications shall be in writing (including,
unless the context expressly otherwise provides, by facsimile transmission,
provided that any matter transmitted by the Borrower by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at the number
specified on Schedule 11.02, and (ii) shall be followed promptly by delivery of
a hard copy original thereof) and mailed, faxed or delivered, to the address or
facsimile number specified for notices on Schedule 11.02; or, as directed to the
Borrower or the Agent, to such other address as shall be designated by such
party in a written notice to the other parties, and as directed to any other
party, at such other address as shall be designated by such party in a written
notice to the Borrower and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II, III or X shall not be effective until actually
received by the Agent, and notices pursuant to Article III to any Issuing Bank
shall not be effective until actually received by such Issuing Bank at the
address specified for the "Issuing Banks" on the applicable signature page
hereof.
(c) Any agreement of the Agent and the Banks herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Borrower. The Agent and the Banks shall be entitled to rely
on the authority of any Person purporting to be a Person authorized by the
Borrower to give such notice and the Agent and the Banks shall not have any
liability to the Borrower or other Person on account of any action taken or not
taken by the Agent or the Banks in reliance upon such telephonic or facsimile
notice. The obligation of the Borrower to repay the Loans and L/C Obligations
shall not be affected in any way or to any extent by any failure by the Agent
and the Banks to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Agent and the Banks of a confirmation which is at
variance with the terms understood by the Agent and the Banks to be contained in
the telephonic or facsimile notice.
No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
Costs and Expenses. The Borrower shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Agent and an
Issuing Bank) and the Arranger within five Business Days after demand (subject
to subsection 5.01(f)) for all costs and expenses incurred by BofA (including in
its capacity as Agent and an Issuing Bank) and the Arranger in connection with
the development, preparation, delivery, administration, syndication and
execution of, and any amendment, supplement, waiver or modification to (in each
case, whether or not consummated), this Agreement, any Loan Document, the
Existing Credit Agreement and any other documents prepared in connection
herewith or therewith, and the consummation of the transactions contemplated
hereby and thereby, including reasonable (giving due regard to the prevailing
circumstances) Attorney Costs incurred by BofA (including in its capacity as
Agent and an Issuing Bank) and the Arranger with respect thereto; and
(b) pay or reimburse the Agent, the Arranger, each Issuing
Bank and each Bank within five Business Days after demand for all costs and
expenses (including Attorney Costs) incurred by them in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or any other Loan Document during the existence of an Event
of Default or after acceleration of the Loans (including in connection with any
"workout" or restructuring regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding).
Indemnity. Whether or not the transactions contemplated hereby are consummated,
the Borrower shall indemnify and hold the Agent-Related Persons, the Issuing
Banks, the Arranger and each Bank and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits and
reasonable (giving due regard to the prevailing circumstances) costs, charges,
expenses and disbursements (including Attorney Costs) of any kind or nature
whatsoever which may at any time (including at any time following repayment of
the Loans, the termination of the Letters of Credit and the termination,
resignation or replacement of the Agent or replacement of any Bank or Issuing
Bank) be imposed on, incurred by or asserted against any such Person in any way
relating to or arising out of this Agreement or any document contemplated by or
referred to herein, or the transactions contemplated hereby, or any action taken
or omitted by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or proceeding (including
any Insolvency Proceeding or appellate proceeding) related to or arising out of
this Agreement or the Loans or Letters of Credit or the use of the proceeds
thereof, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, that the
Borrower shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive payment of all other Obligations.
Payments Set Aside. To the extent that the Borrower makes a payment to the Agent
or the Banks, or the Agent or the Banks exercise their right of set-off, and
such payment or the proceeds of such set-off or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the Agent or
such Bank in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any Insolvency Proceeding or otherwise, then (a) to
the extent of such recovery the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred, and (b) each
Bank severally agrees to pay to the Agent upon demand its pro rata share of any
amount so recovered from or repaid by the Agent.
Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, except that the Borrower may not assign or transfer any of its
rights or obligations under this Agreement without the prior written consent of
the Agent and each Bank. Any attempted or purported assignment in contravention
of the preceding sentence shall be null and void.
Assignments, Participations, Etc. (a) Any Bank may, with the written consent of
the Borrower (at all times other than during the existence of an Event of
Default), the Agent and the applicable Issuing Bank(s), which consents shall not
be unreasonably withheld, at any time assign and delegate to one or more
Eligible Assignees (provided that no written consent of the Borrower, the Agent
or an Issuing Bank shall be required in connection with any assignment and
delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank)
(each an "Assignee") all, or any ratable part of all, of the Loans, the
Revolving Loan Commitments, the L/C Obligations and the other rights and
obligations of such Bank hereunder in an aggregate minimum amount of
$10,000,000, pro-rated in accordance with the respective amounts of the Facility
A Commitment, the Facility B Term Loans outstanding and the Facility C
Commitment of such Bank; provided that such Bank shall retain an aggregate
amount of not less than $10,000,000 in respect thereof, unless such Bank assigns
and delegates all of its rights and obligations hereunder to one or more
Eligible Assignees on the time and subject to the conditions set forth herein;
and provided, further, however, that the Borrower and the Agent may continue to
deal solely and directly with such Bank in connection with the interest so
assigned to an Assignee until (i) written notice of such assignment, together
with payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrower and the Agent by such Bank and
the Assignee; (ii) such Bank and its Assignee shall have delivered to the
Borrower and the Agent an Assignment and Acceptance in the form of Exhibit E
("Assignment and Acceptance"), together with any Note or Notes subject to such
assignment; and (iii) the assignor Bank or Assignee has paid to the Agent a
processing fee in the amount of $3,500.
(b) From and after the date that the Agent notifies the
assignor Bank that it has received (and provided its consent with respect to) an
executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Bank under the Loan Documents, and (ii) the assignor Bank shall, to the extent
that rights and obligations hereunder and under the other Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by
the Agent that it has received an executed Assignment and Acceptance and payment
of the processing fee (and provided that it consents to such assignment in
accordance with subsection 11.08(a)), if the Assignee so requests, the Borrower
shall execute and deliver to the Agent, new Notes evidencing such Assignee's
assigned Loans and Revolving Loan Commitments and, if the assignor Bank has
retained a portion of its Loans and its Revolving Loan Commitments and so
requests, replacement Notes in the principal amount or amounts of the Loans
retained by the assignor Bank (such Notes to be in exchange for, but not in
payment of, the Notes held by such Bank). Immediately upon each Assignee's
making its processing fee payment under the Assignment and Acceptance, this
Agreement shall be deemed to be amended to the extent, but only to the extent,
necessary to reflect the addition of the Assignee and the resulting adjustment
of the Revolving Loan Commitments and Facility B Term Loans arising therefrom.
The Revolving Loan Commitments and Facility B Term Loans allocated to each
Assignee shall reduce such Revolving Loan Commitments and Facility B Term Loans
of the assigning Bank pro tanto and the Agent shall promptly prepare and
distribute a new Schedule 2.01 reflecting the new commitments.
(d) Any Bank may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Borrower (a "Participant")
participating interests in any Loans, the Revolving Loan Commitments of that
Bank and the other interests of that Bank (the "originating Bank") hereunder and
under the other Loan Documents; provided, however, that (i) the originating
Bank's obligations under this Agreement shall remain unchanged, (ii) the
originating Bank shall remain solely responsible for the performance of such
obligations, (iii) the Borrower, the Issuing Banks and the Agent shall continue
to deal solely and directly with the originating Bank in connection with the
originating Bank's rights and obligations under this Agreement and the other
Loan Documents, and (iv) no Bank shall transfer or grant any participating
interest under which the Participant has rights to approve any amendment to, or
any consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would require
unanimous consent of the Banks as described in the first proviso to Section
11.01. In the case of any such participation, the Participant shall be entitled
to the benefit of Sections 4.01, 4.03 and 11.05 as though it were also a Bank
hereunder, and if amounts outstanding under this Agreement are due and unpaid,
or shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all information
identified as "confidential" or "secret" by the Borrower and provided to it by
the Borrower or any Subsidiary, or by the Agent on such Borrower's or
Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither it nor any of its Affiliates shall use any such information other than
in connection with or in enforcement of this Agreement and the other Loan
Documents; except to the extent such information (i) was or becomes generally
available to the public other than as a result of disclosure by the Bank, or
(ii) was or becomes available on a non-confidential basis from a source other
than the Borrower, provided that such source is not bound by a confidentiality
agreement with the Borrower known to the Bank; provided, however, that any Bank
may disclose such information (A) at the request or pursuant to any requirement
of any Governmental Authority to which the Bank is subject or in connection with
an examination of such Bank by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Agent, any
Bank or their respective Affiliates may be party; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Loan Document; (F) to such Bank's independent auditors and other
professional advisors; (G) to any Affiliate of such Bank, or to any Participant
or Assignee, actual or potential, provided that such Affiliate, Participant or
Assignee agrees to keep such information confidential to the same extent
required of the Banks hereunder, and (H) as to any Bank, as expressly permitted
under the terms of any other document or agreement regarding confidentiality to
which the Borrower is party or is deemed party with such Bank.
(f) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and any Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank
may enforce such pledge or security interest in any manner permitted under
applicable law.
Set-off. In addition to any rights and remedies of the Banks provided by law, if
an Event of Default exists or the Loans have been accelerated, each Bank is
authorized at any time and from time to time, without prior notice to the
Borrower, any such notice being waived by the Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Bank to or for the credit or the account
of the Borrower against any and all Obligations owing to such Bank, now or
hereafter existing, irrespective of whether or not the Agent or such Bank shall
have made demand under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. Each Bank agrees promptly to notify
the Borrower and the Agent after any such set-off and application made by such
Bank; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
Notification of Addresses, Lending Offices, Etc. Each Bank shall notify the
Agent in writing of any changes in the address to which notices to the Bank
should be directed, of addresses of any Lending Office, of payment instructions
in respect of all payments to be made to it hereunder and of such other
administrative information as the Agent shall reasonably request.
Changes of Revolving Lo( On the Restatement Effective Date, each of the Banks
which either (i) has a Facility A Commitment Percentage or Facility C Commitment
Percentage on the Restatement Effective Date that is less than its Existing
Facility A Commitment Percentage or Existing Facility C Commitment Percentage,
as the case may be, immediately prior to such date or (ii) had a commitment
under the Existing Credit Agreement immediately prior to the Restatement
Effective Date but has no corresponding Revolving Loan Commitment as of the
Restatement Effective Date (each such Bank, a "Decreasing Bank") shall
irrevocably assign, without recourse or warranty of any kind whatsoever (except
that each Decreasing Bank warrants that it is the legal and beneficial owner of
the Loans assigned by it under this Section 11.11 and that such Loans are held
by such Decreasing Bank free and clear of adverse claims), to each of the Banks
which has a Facility A Commitment Percentage or Facility C Commitment
Percentage, as the case may be, on the Restatement Effective Date that is
greater than its Existing Facility A Commitment Percentage or Existing Facility
C Commitment Percentage, as the case may be, immediately prior to such date
(each such Bank, an "Increasing Bank"), and each of the Increasing Banks shall
irrevocably acquire from the Decreasing Banks, a portion of the principal amount
of the Facility A Revolving Loans or Facility C Revolving Loans, as the case may
be, of each of the Decreasing Banks (collectively, the "Acquired Portion")
outstanding on the Restatement Effective Date (before giving effect to any new
Revolving Loans made on such date) in an amount such that the principal amount
of the Revolving Loans held by each of the Increasing Banks and each of the
Decreasing Banks as of the Restatement Effective Date shall be held in
accordance with each such Bank's Facility A Commitment Percentage and Facility C
Commitment Percentage (if any) as of such date. Such assignment and acquisition
shall be effective on the Restatement Effective Date automatically and without
any action required on the part of any party other than the payment by the
Increasing Banks to the Agent for the account of the Decreasing Banks of an
amount equal to the Acquired Portion, which amount shall be allocated to the
Decreasing Banks pro rata based upon the respective reductions in the principal
amount of the Facility A Revolving Loans and Facility C Revolving Loans, as
applicable, held by such Banks on the Restatement Effective Date (before giving
effect to any new Revolving Loans made on such date). Each of the Agent and the
Banks shall adjust its records accordingly to reflect the payment of the
Acquired Portion and the changes in the Bank's Revolving Loan Commitments. The
payment to be made in respect of the Acquired Portion shall be made by the
Increasing Banks to the Agent in Dollars in immediately available funds at or
before 11:00 a.m. San Francisco time on the Restatement Effective Date, such
payment to be made by the Increasing Banks pro rata based upon the respective
increases in the principal amount of the Facility A Revolving Loans and Facility
C Revolving Loans held by such Banks on the Restatement Effective Date (before
giving effect to any new Revolving Loans made on such date). For purposes of
this subsection 11.11(a), (1) "Existing Facility A Commitment Percentage" means,
with respect to any Bank, the ratio of (i) the amount of the Facility C
Commitment of such Bank under the Existing Credit Agreement to (ii) the
aggregate amount of the Facility C Commitments of all of the Banks under the
Existing Credit Agreement, (2) "Existing Facility C Commitment Percentage"
means, with respect to any Bank, the ratio of (i) the amount of the Facility A
Commitment plus the amount of the Facility B Commitment of such Bank under the
Existing Credit Agreement to (ii) the aggregate amount of the Facility A
Commitments plus the aggregate amount of the Facility B Commitments of all of
the Banks under the Existing Credit Agreement, (3) "Facility A Commitment
Percentage" means, with respect to any Bank, the ratio of (i) the amount of the
Facility A Commitment of such Bank to (ii) the aggregate amount of the Facility
A Commitments of all of the Banks and (4) "Facility C Commitment Percentage"
means, with respect to any Bank, the ratio of (i) the amount of the Facility C
Commitment of such Bank to (ii) the aggregate amount of the Facility C
Commitments of all of the Banks.
<PAGE>
(b) To the extent any of the Revolving Loans acquired by the
Increasing Banks from the Decreasing Banks pursuant to subsection 11(a) above
are Eurodollar Rate Loans and the Restatement Effective Date is not the last day
of an Interest Period for such Loans, the Decreasing Banks shall be entitled to
compensation from the Borrower as provided in Section 4.04 of the Existing
Credit Agreement (as if the Borrower had prepaid such Loans in an amount equal
to the Acquired Portion on the Restatement Effective Date). The payment made by
the Increasing Banks in respect of the Acquired Portion shall constitute a Loan
made by the Increasing Banks on the Restatement Effective Date, and to the
extent any Loan acquired by the Increasing Banks on the Restatement Effective
Date is a Eurodollar Rate Loan and such date is not the last day of an Interest
Period for such Loan, such Loan shall accrue interest at the rate then
applicable to such Loan until such last day; provided however that the Borrower
shall compensate the Increasing Banks for an amount equal to the amount, if any,
by which the cost to the Increasing Banks of funding the amount of each such
Loan in the respective market for the period from such date to the last day of
the then Interest Period for such Loan exceeds such applicable rate.
Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and
all of said counterparts taken together shall be deemed to constitute but one
and the same instrument.
Severability. The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not in any way
affect or impair the legality or enforceability of the remaining provisions of
this Agreement or any instrument or agreement required hereunder.
No Third Parties Benefited. This Agreement is made and entered into for the sole
protection and legal benefit of the Borrower, the Banks, the Agent and the
Agent-Related Persons, the Arranger and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
Governing Law and Jurisdiction. (a) THIS AGREEMENT AND ALL NOTES ISSUED
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK; PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE GENERAL
PARTNER, STRATTON, THE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
BORROWER, THE GENERAL PARTNER, STRATTON, THE AGENT AND THE BANKS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE BORROWER, THE GENERAL PARTNER,
STRATTON, THE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
Waiver of Jury Trial. THE BORROWER, THE GENERAL PARTNER, STRATTON, THE BANKS AND
THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE
BORROWER, THE GENERAL PARTNER, STRATTON, THE BANKS AND THE AGENT EACH AGREE THAT
ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO
ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART,
TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
Entire Agreement. From and after the Restatement Effective Date (if it shall
occur), this Agreement, together with the other Loan Documents, embodies the
entire agreement and understanding between and among the Borrower, the General
Partner, Stratton, the Banks and the Agent, and supersedes the Existing Credit
Agreement and all other understandings of such Persons, verbal or written,
relating to the subject matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
FERRELLGAS, L.P.
By: Ferrellgas, Inc.,
General Partner
By: /s/ Danley K. Sheldon
Danley K. Sheldon
Senior Vice President and
Chief Financial Officer/
Treasurer
FERRELLGAS, INC.
By: /s/ Danley K. Sheldon
Danley K. Sheldon
Senior Vice President and
Chief Financial Officer/
Treasurer
STRATTON INSURANCE COMPANY, INC.
By: /s/ Danley K. Sheldon
Danley K. Sheldon
Senior Vice President and
Chief Financial Officer/
Treasurer
Address for Notices for each
of the Borrower, the General
Partner and Stratton:
One Liberty Plaza
Liberty, Missouri 64068
Attention: Danley K. Sheldon
Telephone: (816) 792-6828
Facsimile: (816) 792-6979
<PAGE>
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ David E. Sisler
David E. Sisler
Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ David E. Sisler
David E. Sisler
Vice President
NATIONSBANK OF TEXAS, N.A.,
as a Bank
By: /s/ C. Todd Kulp
C. Todd Kulp
Vice President
WELLS FARGO BANK, N.A.,
as a Bank
By: /s/ Charles D. Kirkham
Charles D. Kirkham
Vice President
THE BANK OF NOVA SCOTIA,
as a Bank
By: /s/ T. C. H. Ashby
T. C. H. Ashby
Senior Manager Loan Operations
<PAGE>
THE FIRST NATIONAL BANK OF BOSTON,
as a Bank
By: /s/ H. Louis Bailey
H. Louis Bailey
Managing Director
BANQUE PARIBAS, as a Bank
By: /s/ Scott Clingan
Scott Clingan
Vice President
By: /s/ Larry Robinson
Larry Robinson
Vice President
UNION BANK OF CALIFORNIA, N.A.,
as a Bank
By: /s/ Walter M. Roth
Walter M. Roth
Vice President
THE BANK OF NEW YORK, as a Bank
By: /s/ Mark T. Familo
Mark T. Familo
Assistant Vice President
CAISSE NATIONALE DE CREDIT
AGRICOLE, as a Bank
By: /s/ David Bouhl
David Bouhl, F.V.P.
Head of Corporate Banking
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
( THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
FERRELLGAS, L.P. AND SUBSIDIARIES BALANCE SHEET ON JULY 31, 1996, AND
THE STATEMENT OF EARNINGS ENDING JULY 31, 1996 AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATMENTS)
</LEGEND>
<CIK>0000922359
<NAME> FERRELLGAS, L.P.
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JUL-31-1996
<PERIOD-START> AUG-01-1995
<PERIOD-END> JUL-31-1996
<EXCHANGE-RATE> 1
<CASH> 13,769
<SECURITIES> 0
<RECEIVABLES> 71,287
<ALLOWANCES> 1,169
<INVENTORY> 41,395
<CURRENT-ASSETS> 131,764
<PP&E> 596,107
<DEPRECIATION> 192,375
<TOTAL-ASSETS> 650,398
<CURRENT-LIABILITIES> 111,615
<BONDS> 279,112
<COMMON> 0
0
0
<OTHER-SE> 247,269
<TOTAL-LIABILITY-AND-EQUITY> 650,398
<SALES> 522,446
<TOTAL-REVENUES> 653,640
<CGS> 356,314
<TOTAL-COSTS> 577,913
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 33,822
<INCOME-PRETAX> 28,764
<INCOME-TAX> 0
<INCOME-CONTINUING> 28,764
<DISCONTINUED> 0
<EXTRAORDINARY> (975)
<CHANGES> 0
<NET-INCOME> 27,789
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<PAGE>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
(THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTE FROM
FERRELLGAS FINANCE CORP. BALANCE SHEET ON JULY 31, 1996, AND
THE STATEMENT OF EARNINGS ENDING JULY 31, 1996 AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATMENTS)
</LEGEND>
<CIK> 0000922360
<NAME> FERRELLGAS FINANCE CORP.
<MULTIPLIER> 1
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JUL-31-1996
<PERIOD-START> AUG-01-1995
<PERIOD-END> JUL-31-1996
<EXCHANGE-RATE> 1
<CASH> 1,000
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 1,000
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 1,000
<CURRENT-LIABILITIES> 0
<BONDS> 0
<COMMON> 0
0
1,000
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 1,000
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (89)
<INCOME-TAX> 0
<INCOME-CONTINUING> (89)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (89)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
1. For the Ferrellgas Partners Finance Corp. has no income statement items
other than totals as their only costs are G&A, and such costs are not required
in the Financial Data Schedule.
</FN>
</TABLE>
