ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT, dated as of December 17, 1999 (the
"Agreement"), is made and entered into by and among THERMOGAS L.L.C., a Delaware
limited liability company ("Thermogas"), FERRELLGAS, L.P., a Delaware limited
partnership ("Ferrellgas"), FERRELLGAS, INC., a Delaware corporation and the
sole general partner of Ferrellgas ("FGI"), and BANK OF AMERICA, N.A., in its
capacity as Administrative Agent for the Banks under the Credit Agreement
referred to below. Capitalized terms used herein but not otherwise defined shall
have the meanings set forth in the Credit Agreement.
WITNESSETH
WHEREAS, pursuant to that certain Credit Agreement, dated as of
December 17, 1999 (as amended, modified, extended, renewed or replaced from time
to time, the "Credit Agreement"), among Thermogas, as Borrower, the several
financial institutions party thereto (the "Banks") and Bank of America, N.A., as
Administrative Agent, the Banks have agreed to provide Thermogas with a
$183,000,000 credit facility;
WHEREAS, Ferrellgas Partners, L.P. (the "MLP"), an Affiliate of
Ferrellgas, has acquired all of the limited liability company interests of
Thermogas from Xxxxxxxx Natural Gas Liquids, Inc. and, immediately following the
consummation of such acquisition, the MLP contributed all of such limited
liability company interests to Ferrellgas;
WHEREAS, the Credit Agreement contemplates that, following the
contribution of the limited liability company interests of Thermogas to
Ferrellgas, Ferrellgas will assume all of the obligations of Thermogas and
become liable as the "Borrower" under the Loan Documents and Thermogas will be
merged with and into Ferrellgas;
WHEREAS, Ferrellgas now desires to assume all of the rights,
obligations, duties and responsibilities of Thermogas under the Credit Agreement
and the other Loan Documents; and
WHEREAS, FGI, as the sole general partner of Ferrellgas, now desires to
assume all of the rights, obligations, duties and responsibilities of the
"General Partner" under the Credit Agreement and the other Loan Documents;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Assumption by Ferrellgas. Effective as of the date hereof,
Ferrellgas hereby (i) assumes all of the rights, duties and obligations of
Thermogas under the Credit Agreement and the Loan Documents, (ii) irrevocably
and unconditionally agrees with the Administrative Agent and the Banks to be
bound by all of the terms and conditions of the Credit Agreement and the Loan
Documents and to perform all of the obligations and discharge all of the
liabilities of Thermogas existing at or accrued prior to the date hereof or
hereafter arising under the Credit Agreement and the Loan Documents and (iii)
without limiting any of the foregoing, ratifies, and agrees to be bound by, (A)
the representations and warranties set forth in Article VI of the Credit
Agreement and (B) all of the affirmative and negative covenants set forth in
Articles VII and VIII of the Credit Agreement. Without limiting the generality
of the foregoing terms of this Xxxxxxx 0, Xxxxxxxxxx hereby promises to pay to
each Bank the principal balance of, and accrued interest on, each Loan made
under the Loan Documents and the other Obligations in accordance with the terms
of the Loan Documents.
SECTION 2. Assumption by FGI. Effective as of the date hereof, FGI
hereby (i) assumes all of the rights, duties and obligations of the General
Partner under the Credit Agreement and the other Loan Documents, (ii)
irrevocably and unconditionally agrees with the Administrative Agent and the
Banks to be bound by all of the terms and conditions of the Credit Agreement and
the Loan Documents and to perform all of the obligations and discharge all of
the liabilities of the General Partner existing at or accrued prior to the date
hereof or hereafter arising under the Credit Agreement and the Loan Documents
and (iii) without limiting any of the foregoing, ratifies, and agrees to be
bound by, (A) the representations and warranties set forth in Article VI of the
Credit Agreement and (B) all of the affirmative and negative covenants set forth
in Articles VII and VIII of the Credit Agreement.
SECTION 3. No Release of Thermogas. Notwithstanding the agreements of
Ferrellgas set forth in Section 1 above, Thermogas shall not be released from
its rights, duties and obligations under the Credit Agreement and the other Loan
Documents.
SECTION 4. References in the Loan Documents. From and after the
execution and delivery of this Agreement, (a) Ferrellgas shall have succeeded
Thermogas as the "Borrower" under the Loan Documents, and all references to the
"Borrower" in the Loan Documents shall refer to Ferrellgas and not to Thermogas,
(b) all references to the "General Partner" in the Loan Documents shall refer to
FGI and (c) all references to the "Credit Agreement" in any Loan Documents shall
refer to the Credit Agreement, as modified by this Agreement. Except as
expressly modified by this Agreement, all of the terms and provisions of the
Credit Agreement and the other Loan Documents shall remain in full force and
effect.
SECTION 5. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 7. Severability If any provision of this Agreement is
determined to be illegal, invalid or unenforceable, such provisions shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed in without giving effect to the illegal, invalid
or unenforceable provisions.
SECTION 8. Counterparts. This Agreement may be executed in any number
of counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
THERMOGAS L.L.C.
a Delaware limited liability company
By:_______________________________________
Name:
Title:
FERRELLGAS, L.P.,
a Delaware limited partnership
By: Ferrellgas, Inc.
Its: General Partner
By:_______________________________________
Name:
Title:
FERRELLGAS, INC.,
a Delaware corporation
By:_______________________________________
Name:
Title:
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:_______________________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
