ASSUMPTION AGREEMENT
Dated as of December 15, 1999
of
FERRELLGAS, LP
Re: Lease Agreement and Related Operative Documents
Dated as of December 15, 1999
of
Thermogas L.L.C.
TABLE OF CONTENTS
SECTION HEADING PAGE
Recitals..........................................................................................................1
SECTION 1. ASSUMPTION.............................................................................1
SECTION 2. REPRESENTATIONS AND WARRANTIES OF LESSEE...............................................2
SECTION 3. CONDITIONS TO ASSUMPTION...............................................................4
SECTION 4. COVENANT OF LESSEE.....................................................................5
SECTION 6. MISCELLANEOUS..........................................................................6
Section 5.1. Notices................................................................................6
Section 5.2. Counterparts...........................................................................6
Section 5.3. Amendments.............................................................................6
Section 5.4. Headings, etc..........................................................................6
Section 5.5. Governing Law..........................................................................6
Section 5.6. Payment of Costs.......................................................................6
Section 5.7. Severability...........................................................................6
Section 5.8. Submission to Jurisdiction; Waivers....................................................7
Section 5.9. Successors and Assigns.................................................................7
Section 5.10. Further Assurances.....................................................................7
Signature.........................................................................................................8
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT (this "Agreement"), dated as of December 15, 1999
of FERRELLGAS, LP, a Delaware limited partnership ("Lessee") and FERRELLGAS,
INC., a Delaware corporation and the general partner of Lessee ("General
Partner") for the benefit of the Agent, the Certificate Trustee, the Certificate
Purchasers and the Lenders (as defined below).
RECITALS
A. Capitalized terms not otherwise defined herein shall have the
meanings specified in Appendix 1 to the Participation Agreement (Thermogas
Company Trust No. 1999-A) dated as of December 15, 1999 (the "Participation
Agreement") among Thermogas L.L.C. ("Thermogas"), The Xxxxxxxx Companies, Inc.
("Xxxxxxxx"), First Security Bank, National Association, not in its individual
capacity except as expressly set forth therein but solely as Certificate Trustee
(the "Certificate Trustee"), First Security Trust Company of Nevada, as Agent
(the "Agent"), the Certificate Purchasers named on Schedule I-A thereto (the
"Certificate Purchasers") and the Lenders named on Schedule I-B thereto (the
"Lenders").
B. Pursuant to the Participation Agreement, the Lenders and the
Certificate Purchasers have financed the acquisition by the Certificate Trustee
of the Acquired Property.
C. Pursuant to the Lease, Certificate Trustee has leased the Acquired
Property to Thermogas on the terms and conditions set forth therein and in the
other Operative Documents.
D. The MLP has acquired all of the Member interests in Thermogas
pursuant to the Purchase Agreement dated as of November 7, 1999 among the MLP,
Lessee and Xxxxxxxx Natural Gas Liquids, Inc. and has contributed Thermogas to
Lessee pursuant to the Contribution and Conveyance Agreement
(such transactions being referred to collectively as the "Acquisition").
E. It is a condition to the Certificate Purchasers and the Lenders
entering into the transactions contemplated by the Participation Agreement that
Lessee assume all obligations of Thermogas under the Lease and the other
Operative Documents upon the consummation of the Acquisition, and Lessee, in
consideration of the Certificate Purchasers and the Lenders entering into such
transactions, is willing to assume such obligations pursuant hereto.
NOW, THEREFORE, in consideration of the premises and the benefits to
Lessee and in consideration of the Certificate Purchasers and the Lenders
entering into the transactions contemplated by the Participation Agreement and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Lessee agrees as follows:
SECTION 1. ASSUMPTION.
Subject to the terms of this Agreement, Lessee hereby irrevocably,
absolutely, unconditionally and expressly assumes (i) the due and punctual
payment of all Rent, including all Basic Rent, Supplemental Rent, Lease Balance,
Purchase Option Exercise Amount, Transaction Costs, Fees, indemnities, Interest,
Yield and all other amounts to be paid by Thermogas under or pursuant to the
Lease and the other Operative Documents to which Thermogas is a party in
accordance with the terms thereof, and (ii) the due and punctual observance and
performance of all covenants and agreements of Thermogas contained in the Lease
and the other Operative Documents. Lessee covenants and agrees that its
obligations and liabilities hereunder and under the Lease and the other
Operative Documents shall be those of a primary obligor and not a guarantor,
surety or other secondary party.
Upon such assumption, Lessee shall be deemed the "Lessee" for all
purposes of the Operative Documents and each reference therein to the "Lessee"
shall thereafter be deemed to mean Lessee and Lessee may exercise all rights and
powers, and shall perform all obligations, of the "Lessee" thereunder.
As of the date of the consummation of the Acquisition, the execution
and delivery of this Agreement by Lessee and fulfillment or waiver of the
conditions set forth in Section 3 (the "Effective Date"), Xxxxxxxx (and each of
its officers, directors, employees and agents) shall be released and discharged
from any and all agreements, obligations, undertakings and covenants under the
Lessee Guarantee and the Operative Documents to which it is a party. From and
after the Effective Date, the Agent, the Certificate Trustee and the
Participants shall look solely to Lessee, in accordance with this Agreement and
the Operative Documents, for performance of the Liabilities referred to in the
Lessee Guarantee (whether outstanding on the Effective Date or arising
thereafter).
General Partner hereby agrees to comply with all terms of the Operative
Documents applicable to the "General Partner".
SECTION 2. REPRESENTATIONS AND WARRANTIES OF LESSEE.
Lessee represents and warrants to the Agent, the Certificate Trustee
and each Participant that as of the date hereof and as of the date the
transactions contemplated hereby are consummated:
(a) Corporate or Partnership Existence and Power. Lessee:
(i) is a partnership duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation;
(ii) has the power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets,
carry on its business as now being or as proposed to be conducted and
to execute, deliver, and perform its obligations under this Agreement;
(iii) is duly qualified as a foreign partnership and is
licensed and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its
business requires such qualification or license or where the failure so
to qualify would have a Material Adverse Effect; and
(iv) is in compliance with all material Requirements of Law.
(b) Partnership Authorization; No Contravention. The execution,
delivery and performance by Lessee of this Agreement have been duly authorized
by all necessary partnership action on behalf of Lessee and all necessary
corporate action on behalf of the General Partner, and do not and will not:
(i) contravene the terms of any of the General Partner's or Lessee's
Organization Documents;
(ii) conflict with or result in any breach or contravention
of, or the creation of any Lien under, any document evidencing any
Contractual Obligation to which the General Partner or Lessee is a
party or any order, injunction, writ or decree of any Governmental
Authority to which such Person or its property is subject where such
conflict, breach, contravention or Lien could reasonably be expected to
have a Material Adverse Effect; or
(iii) violate any material Requirement of Law.
(c) Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with (a) the
execution, delivery or performance by, or enforcement against, Lessee of this
Agreement, or (b) the continued operation of Lessee's business as contemplated
to be conducted after the date hereof by the Operative Documents, except in each
case such approvals, consents, exemptions, authorizations or other actions,
notices or filings (i) as have been obtained, (ii) as may be required under
state securities or Blue Sky laws, (iii) as are of a routine or administrative
nature and are either (A) not customarily obtained or made prior to the
consummation of transactions such as the transactions described in clauses (a)
or (b) or (B) expected in the judgment of Lessee to be obtained in the ordinary
course of business subsequent to the consummation of the transactions described
in clauses (a) or (b), or (iv) that, if not obtained, could not reasonably be
expected to have a Material Adverse Effect.
(d) Binding Effect. This Agreement and, after giving effect to this
Agreement, the Lease and the other Operative Documents constitute the legal,
valid and binding obligations of Lessee, enforceable against Lessee in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
(e) Litigation. There are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of Lessee, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against the General Partner, the MLP, Lessee or any of its
Subsidiaries or any of their respective properties which:
(i) purport to affect or pertain to this Agreement or any other Operative
Document or any of the transactions contemplated hereby or thereby; or
(ii) if determined adversely to Lessee or its Subsidiaries,
would reasonably be expected to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or performance
of this Agreement, or directing that the transactions provided for
herein not be consummated as herein provided.
(f) No Default. No Lease Default or Lease Event of Default exists or
would result from Lessee entering into this Agreement. Neither Lessee nor any
Affiliate of Lessee is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, could reasonably be expected to have a Material Adverse Effect, or
that would create a Lease Event of Default under Section 8.1(e) of the Lease.
(g) Security Interest. (i) Certificate Trustee has a valid and
enforceable Lien in the Units and the other Lessee Collateral free and clear of
all Liens other than Permitted Liens and, upon the filing of the items listed on
Schedule 3.1(o) of the Participation Agreement (as to Lessee), Certificate
Trustee will have a perfected first priority Lien of record in the Units and in
the other Lessee Collateral as against all Persons including Lessee and its
creditors, free and clear of all Liens other than Permitted Liens.
(ii) Agent has a valid and enforceable Lien in the Lessor
Collateral free and clear of all Liens other than Permitted Liens and,
upon the filing of the items listed on Schedule 3.1(o) of the
Participation Agreement (as to Lessee), Agent will have a perfected
first priority Lien of record in the Lessor Collateral as against all
Persons including Lessee, Certificate Trustee and their creditors, free
and clear of all Liens other than Permitted Liens.
(h) Chief Executive Office of Lessee. The principal place of business
and chief executive office, as such terms are used in Section 9-103(3) of the
UCC, of Lessee are each located at Xxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
(i) Other Representations. The representations and warranties set forth
in Section 4.1 of the Participation Agreement are true and correct in all
material respects; provided that the representation set forth in Section 4.1(bb)
of the Participation Agreement is made to the best of Lessee's knowledge.
SECTION 3. CONDITIONS TO ASSUMPTION.
The transactions contemplated by this Agreement shall be effective on
the date that the following conditions precedent have been satisfied:
(a) Acquisition. The Agent, the Certificate Trustee and the
Participants shall have received evidence satisfactory to them of the
consummation of the Acquisition.
(b) Authorization, Execution and Delivery of Agreement. This Agreement
shall have been duly authorized, executed and delivered by Lessee, shall be in
full force and effect, shall be in form and substance satisfactory to each
Participant and an executed counterpart of each hereof shall have been received
by each of the Participants, the Agent and the Certificate Trustee.
(c) Proceedings. Each of the Participants, the Agent and the
Certificate Trustee shall have received such documents and certificates as it
may reasonably request to establish the authority of Lessee to enter into this
Agreement and the transactions contemplated hereby.
(d) Filings and Recordings. All filings or recordings enumerated and
described in Schedule 3.1(o) of the Participation Agreement (as to Lessee), to
perfect the rights, title and interest of the Certificate Trustee, the
Participants and the Agent intended to be created by the Operative Documents
shall have been made in the appropriate places or offices.
(e) Transaction Costs; Fees. Lessee shall have paid any fees and
expenses required to be paid pursuant to Section 5.6 to the extent invoices have
been received therefor.
(f) Opinions of Counsel. The Certificate Trustee, the Agent and the
Participants shall have received opinions of Xxxxxxxxx & Xxxxxxxxx, L.L.P.,
special counsel to Lessee, in form and substance satisfactory to them, with
respect to this Agreement and the transactions contemplated hereby (including as
to the filings referred to in clause (d) above).
(g) Consents. All necessary consents, approvals and authorizations of,
and declarations, registrations and filings with, and Governmental Authority or
any other Person required in order to consummate the transactions contemplated
herein shall have been obtained or made and shall be in full force and effect.
(h) Proceedings Satisfactory, Etc. All proceedings taken in connection
with the transactions contemplated hereby and all documents relating thereto
shall be reasonably satisfactory to the Agent, the Certificate Trustee, each
Participant and their respective counsel, and each such Person shall have
received copies of such documents as they may reasonably request in connection
therewith, all in form and substance reasonably satisfactory to each such
Person.
SECTION 4. COVENANT OF LESSEE.
Lessee is also party to that certain Lease Intended as Security
(Ferrellgas, LP Trust No. 1999-A) dated as of December 1, 1999 (the "Ferrellgas
Lease") between Lessee and First Security Bank, National Association, not in its
individual capacity but solely as Certificate Trustee, as lessor. Lessee
covenants and agrees for the benefit of the Agent, the Certificate Trustee and
each Participant that the options set forth in Article IX of the Lease and
Article IX of the Ferrellgas Lease and Section 2.12 of the Participation
Agreement and Section 2.12 of the "Participation Agreement" referred to in the
Ferrellgas Lease will be exercised concurrently and that the exercise of any
such option under one such agreement is contingent on the corresponding option
being exercised under the other agreement, it being the intent of Lessee that
the exercise of such options shall operate in the same manner as if all of the
Units under the Lease and the Ferrellgas Lease were covered by one lease and
related operative documents.
SECTION 5. MISCELLANEOUS.
Section 5.1. Notices. All notices, request, demands or other communications
hereunder shall be delivered in accordance with and shall be deemed to have been
given as provided in Section 9.3 of the Participation Agreement. The address for
notices to Lessee is Ferrellgas, LP, Xxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000
attention: Chief Financial Officer.
Section 5.2. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
agreement.
Section 5.3. Amendments. This Agreement and the terms hereof may not be
terminated, amended, supplemented, waived or modified without the written
agreement or consent of Certificate Trustee, Agent, Lessee and the Required
Participants
Section 5.4. Headings, etc. The Table of Contents and headings of the
various Sections of this Agreement are for convenience of reference only and
shall not modify, define, expand or limit any of the terms or provisions hereof.
Section 5.5. Governing Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF, THE STATE OF
NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES OF SUCH STATE THAT
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH
STATE.
Section 5.6. Payment of Costs. Lessee shall pay all fees and expenses,
including reasonable fees and expenses of counsel, of the Agent, the Certificate
Trustee and the Participants incurred in connection with the transactions
contemplated by this Agreement.
Section 5.7. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 5.8. Submission to Jurisdiction; Waivers. (a) Lessee irrevocably
and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Agreement or any other Operative
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the United States
District Court for the Southern District of New York and of any New
York state court sitting in the Borough of Manhattan, and appellate
courts from any thereof;
(ii) consents that any such action or proceedings may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Lessee at its address set forth in Section 5.1 or at such
other address of which the Agent, the Certificate Trustee and the
Participants shall have been notified pursuant to Section 9.3 of the
Participation Agreement; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
(b) LESSEE HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE
OPERATIVE DOCUMENTS AND FOR ANY COUNTERCLAIM THEREIN.
Section 5.9. Successors and Assigns. All representations, warranties,
covenants and agreements in this Agreement contained by or on behalf of Lessee
shall bind and inure to the benefit of the respective successors and assigns of
Lessee, the Agent, the Certificate Trustee and the Participants whether so
expressed or not. The provisions of this Agreement are intended to be for the
benefit of the Agent, the Certificate Trustee and the Participants, and shall be
enforceable by any such Person and its permitted successors and assigns.
Section 5.10. Further Assurances. Lessee covenants that it shall
cooperate with the Agent, the Certificate Trustee and the Participants and
execute such further instruments and documents as any such Person shall
reasonably request to carry out to such Person's satisfaction the transactions
contemplated by this Agreement.
IN WITNESS WHEREOF, Lessee and General Partner have caused this
Agreement to be executed as of the day and year first above written.
FERRELLGAS, LP
By Ferrellgas, Inc., its General Partner
By
Name:
Title:
FERRELLGAS, INC.
By:
Name:
Title:
