September 10, 2002
Ferrellgas Partners, L.P.
Ferrellgas Partners Finance Corp.
Debt Securities
UNDERWRITING AGREEMENT
1. Introductory. Ferrellgas Partners, L.P., a Delaware limited partnership
("Ferrellgas Partners"), and Ferrellgas Partners Finance Corp., a Delaware
corporation ("Ferrellgas Finance" and, together with Ferrellgas Partners,
"Issuers"), propose to issue and sell from time to time certain of their
unsecured debt securities, common units ("Common Stock"), deferred participation
units and warrants registered under the registration statement referred to in
Section 2(a) ("Registered Securities"). The Registered Securities constituting
debt securities will be issued under an indenture, dated as of the Closing Date
(as defined below) ("Indenture"), among the Issuers and U.S. Bank, N.A., as
trustee ("Trustee"), in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, selling prices and other terms.
Particular series or offerings of the Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with the terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities." The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives," as used in this Agreement (other than in Sections
2(b) and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Issuers. Each of the Issuers, as
of the date of each Terms Agreement referred to in Section 3, severally and
jointly, represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-71111), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to
as the "Registration Statement," and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3
to reflect the terms of the Offered Securities and the terms of
offering thereof, as first filed with the Commission after the date
and time this Agreement is executed and delivered by the parties
hereto pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Securities Act of 1933, as amended ("Act"), including all
material incorporated by reference therein, is hereinafter referred to
as the "Prospectus." No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
1
(b) On the effective date of the registration statement relating
to the Registered Securities, such registration statement conformed in
all material respects to the requirements of the Act, the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act") and the
rules and regulations of the Commission ("Rules and Regulations") and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the date of each
Terms Agreement referred to in Section 3, the Registration Statement
and the Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances under which
they were made, except that the foregoing does not and shall not apply
to statements in or omissions from any of such documents based upon
written information furnished to the Issuers by any Underwriter
through the Representatives, if any, specifically for use therein.
(c) Each of the Issuers has been duly incorporated or formed, as
the case may be, and is an existing corporation or limited
partnership, as the case may be, in good standing under the laws of
the State of Delaware, with power and authority (corporate or
partnership, as the case may be) to own its properties and conduct its
business as described in the Prospectus; and each of the Issuers is
duly qualified to do business as a foreign corporation or limited
partnership, as the case may be, in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the
extent that the failure to be so qualified or to be in good standing,
considering all such cases in the aggregate, would not reasonably be
expected to have a material adverse effect on the business,
properties, condition (financial or otherwise) or results of
operations of the Issuers and all of their subsidiaries and affiliates
taken as a whole (a "Material Adverse Effect").
(d) Ferrellgas Partners is the sole limited partner of
Ferrellgas, L.P., a Delaware limited partnership (the "Operating
Partnership"), with a limited partner interest of 98.9899%; such
limited partner interest has been duly authorized by the Second
Amended and Restated Agreement of Limited Partnership of the Operating
Partnership dated as of October 14, 1998, as amended, and was validly
issued and is fully paid and non-assessable (except as
non-assessability may be affected by certain provisions of the
Delaware Revised Uniform Limited Partnership Act); Ferrellgas Partners
owns such limited partner interest in the Operating Partnership free
from liens and encumbrances (except for such liens and encumbrances as
are not, individually or in the aggregate, material to the ownership,
use or value thereof or as disclosed in the Registration Statement and
the Prospectus).
2
(e) The Indenture has been duly authorized and has been duly
qualified under the Trust Indenture Act; the Offered Securities have
been duly authorized; and when the Offered Securities are delivered
and paid for pursuant to the Terms Agreement on the Closing Date (as
defined below), the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus, and the Indenture and
such Offered Securities will constitute valid and legally binding
obligations of each of the Issuers (assuming in the case of the
Indenture, the due authorization, execution and delivery thereof by
the Trustee), enforceable in accordance with their terms, except that
the enforceability thereof may be limited by (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws now or hereafter in effect relating to or affecting creditors'
rights generally, (ii) limitations under Federal or state securities
laws with respect to the rights of indemnification or contribution
thereunder and (iii) general principles of equity.
(f) Except as disclosed in the Prospectus, no consent, approval,
authorization, or order of, or filing with, any governmental agency or
body or any court is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions of this
Agreement) in connection with the issuance and sale of the Offered
Securities by the Issuers, except such (i) as have been obtained, (ii)
to be made under the Act and the Trust Indenture Act, (iii) as may be
required under state securities laws, or (iv) as the failure to obtain
or make would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the ability of the
Issuers to execute, deliver and perform the transactions contemplated
by the Terms Agreement in accordance with its terms.
(g) The execution, delivery and performance of the Indenture and
the Terms Agreement (including the provisions of this Agreement) and
the issuance and sale of the Offered Securities and compliance with
the terms and provisions thereof will not (i) conflict with or result
in a violation of any of the provisions of the certificate of
incorporation, certificate or agreement of limited partnership,
articles of formation or by-laws, as the case may be, of the Issuers,
(ii) conflict with or violate in any material respect any law, rule,
regulation, order, judgment or decree applicable to any of the Issuers
or their subsidiaries or by which any property or asset of any of the
Issuers or their subsidiaries is or may be bound or (iii) result in a
breach of any of the material terms or provisions of, or constitute a
default (with or without due notice and/or lapse of time) under, any
loan or credit agreement, indenture, mortgage, note or other agreement
or instrument to which any of the Issuers or their subsidiaries is a
party or by which any of them or any of their respective properties or
assets is or may be bound, except, in the case of clauses (ii) or
(iii) where such conflict, violation, breach or default will not
prevent the consummation of the transactions contemplated herein or
would not reasonably be expected to have a Material Adverse Effect.
(h) Each of the Issuers has full power and authority (corporate
or partnership, as the case may be) to authorize, issue and sell the
Offered Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement). The Terms Agreement (including the
provisions of this Agreement) has been duly authorized, executed and
delivered by each of the Issuers.
3
(i) Except as described in the Prospectus, each of the Issuers
and their subsidiaries have good and valid title to all real
properties and good title to all personal properties and assets
described in the Prospectus as being owned by them, in each case free
from liens, claims, security interests or other encumbrances that
would reasonably be expected to materially affect the value thereof or
materially interfere with the use made or to be made thereof by them,
taken as a whole, including liens, claims, security interests and
other encumbrances pursuant to mortgage and/or security agreements
given as security for certain non-compete agreements with the prior
owners of certain businesses previously acquired by the Issuers and
their subsidiaries; and except as disclosed in the Prospectus, each of
the Issuers and their subsidiaries hold any leased real property or
buildings under valid and enforceable leases with no exceptions that
would reasonably be expected to materially interfere with the use made
by them, taken as a whole.
(j) Except as described in the Prospectus, each of the Issuers
and their subsidiaries possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them, except for
those which the failure to obtain, would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect,
and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Issuers or any of their
subsidiaries, would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(k) No labor dispute with the employees of either of the Issuers
or any subsidiary exists or, to the knowledge of either of the
Issuers, is imminent that would reasonably be expected to have a
Material Adverse Effect.
(l) Each of the Issuers and their subsidiaries own, possess or
can acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Issuers or any of their
subsidiaries, would individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(m) Except as disclosed in the Prospectus, neither of the Issuers
nor any of their subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), owns or
operates any real property contaminated such that the clean-up or
remediation is required by applicable environmental laws, is liable
for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and neither of the Issuers is aware of
any pending investigation which would reasonably be expected to lead
to such a claim.
4
(n) Except as disclosed in the Prospectus, there are no actions,
suits or proceedings pending, or to the knowledge of the Issuers,
threatened, against or affecting either of the Issuers, any of their
subsidiaries or any of their respective properties that, if determined
adversely to the Issuers or any of their subsidiaries, would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Issuers to perform their obligations under the
Indenture or the Terms Agreement (including the provisions of this
Agreement).
(o) The financial statements included in the Registration
Statement and Prospectus present fairly in all material respects the
financial position, results of operations and cash flows of the
entities purported to be shown thereby, at the dates and for the
periods indicated, and such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis throughout the periods indicated,
except as disclosed therein; and any schedules included in the
Registration Statement present fairly in all material respects the
information required to be stated therein.
(p) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
Ferrellgas Partners and its subsidiaries taken as a whole, and, except
as disclosed in or contemplated by the Prospectus or for the regular
quarterly distributions on the common units, senior units and general
partner units of Ferrellgas Partners and the regular quarterly
distributions on the general partner and limited partner interests of
the Operating Partnership, there has been no dividend or distribution
of any kind declared, paid or made by either of the Issuers on any
class of their equity interests.
(q) Each of the Issuers is subject to the reporting requirements
of either Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 and files reports with the Commission on the Electronic Data
Gathering, Analysis, and Retrieval (XXXXX) system.
(r) Each of the Issuers is, and after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will be exempt from
regulation as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
5
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Issuers determine to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and the terms of the Offered Securities not already specified in the Indenture,
including, but not limited to, interest rate, maturity, any redemption
provisions and any sinking fund requirements. The Terms Agreement will also
specify the time and date of delivery and payment (such time and date, or such
other time not later than ten full business days thereafter as Credit Suisse
First Boston Corp. ("CSFBC") and the Issuers agree as the time for payment and
delivery, being herein and in the Terms Agreement referred to as the "Closing
Date"), the place of delivery and payment and any details of the terms of
offering that should be reflected in the prospectus supplement relating to the
offering of the Offered Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering. The
obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Offered Securities for sale as set forth in the Prospectus.
If the Terms Agreement specifies "Book-Entry Only" settlement or otherwise
states that the provisions of this paragraph shall apply, the Issuers will
deliver against payment of the purchase price the Offered Securities in the form
of one or more permanent global securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent global securities will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Offered Securities shall be made by the Underwriters
in Federal (same day) funds by official check or checks or wire transfer to an
account previously designated by Ferrellgas Partners at a bank acceptable to
CSFBC, in each case drawn to the order of Ferrellgas Partners, or as Ferrellgas
Partners may direct, at the place of payment specified in the Terms Agreement on
the Closing Date, against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Offered Securities.
Under Rule 15c6-1 under the Securities Exchange Act of 1934, the parties
hereto agree that trades in the secondary market may settle in a period in
excess of three business days, which period is currently contemplated to extend
until September 24, 2002.
4. Certain Agreements of the Issuers. Each of the Issuers agrees with
the several Underwriters that in connection with each offering of Offered
Securities:
(a) The Issuers will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by CSFBC, subparagraph (5)) not later than the
second business day following the execution and delivery of the Terms
Agreement.
(b) The Issuers will advise CSFBC promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and
will afford CSFBC a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Issuers will also advise
CSFBC promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and will
use every reasonable effort to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
6
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Issuers promptly will notify CSFBC of such event and will promptly
prepare and file with the Commission, at their own expense, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither CSFBC's
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) As soon as practicable, but not later than 18 months, after
the date of each Terms Agreement, each of the Issuers will make
generally available to their securityholders an earnings statement of
Ferrellgas Partners (which need not be audited) covering a period of
at least 12 months beginning after the "effective date of the
Registration Statement" (as defined in Rule 158(c) of the Act), which
will satisfy the provisions of Section 11(a) of the Act.
(e) The Issuers will furnish to CSFBC copies of the Registration
Statement, including all exhibits, any related preliminary prospectus,
any related preliminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as CSFBC reasonably requests. Each of
the Issuers, jointly and severally, will pay the expenses of printing
and distributing to the Underwriters all such documents.
(f) The Issuers will cooperate with the Underwriters and counsel
thereto in connection with the qualification of the Offered Securities
for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as CSFBC designates and the
continuation of such qualifications in effect so long as required for
the distribution of the Offered Securities. Notwithstanding the
foregoing, the Issuers shall not be required to qualify as a foreign
corporation or partnership, as the case may be, in any jurisdiction in
which they are not so qualified or subject themselves to taxation in
excess of a nominal dollar amount in any such jurisdiction where they
are not then so subject (except service of process with respect to the
offering and sale of the Offered Securities).
(g) Each of the Issuers, jointly and severally, will pay for (i)
all expenses incident to the performance of their obligations under
the Terms Agreement (including the provisions of this Agreement), (ii)
any filing fees or other expenses (including fees and disbursements of
counsel) in connection with qualification of the Registered Securities
for sale and any determination of their eligibility for investment
under the laws of such jurisdictions as CSFBC may designate and the
printing of memoranda relating thereto, (iii) any fees charged by
investment rating agencies for the rating of the Offered Securities,
(iv) any applicable filing fee incident to, the review by the National
Association of Securities Dealers, Inc. of the Registered Securities,
(v) any travel expenses of the Issuers' officers and employees and any
other expenses of the Issuers in connection with attending or hosting
meetings with prospective purchasers of Registered Securities and (vi)
expenses incurred in distributing the Prospectus, any preliminary
prospectuses, any preliminary prospectus supplements or any other
amendments or supplements to the Prospectus to the Underwriters.
7
(h) Neither of the Issuers will offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, nor file with
the Commission a registration statement under the Act relating to
United States dollar-denominated debt securities issued or guaranteed
by the Issuers and having a maturity of more than one year from the
date of issue, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written
consent of CSFBC for a period beginning at the time of execution of
the Terms Agreement and ending the number of days after the Closing
Date specified under "Blackout" in the Terms Agreement.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
each of the Issuers herein, to the accuracy of the statements of officers of
each of the Issuers made pursuant to the provisions hereof, to the performance
by each of the Issuers of their obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Deloitte & Touche LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion, the financial statements and any
schedules examined by them and included in the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on any
unaudited financial statements included in the Registration
Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of each of the Issuers, inquiries of officials of each
of the Issuers who have responsibility for financial and
accounting matters and other specified procedures, nothing came
to their attention that caused them to believe that:
8
(A) the unaudited financial statements, if any,
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to
such unaudited financial statements and summary of earnings
for them to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of the
such letter, there was any change in the capital stock or
any increase in short-term indebtedness or long-term debt of
the either of the Issuers and their consolidated
subsidiaries or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared
with amounts shown on the latest balance sheet included in
the Prospectus; or
(C) for the period from the closing date of the latest
income statement included in the Prospectus to the closing
date of the latest available income statement read by such
accountants, there were any decreases, as compared with the
corresponding period of the previous year and with the
period of corresponding length ended the date of the latest
income statement included in the Prospectus, in consolidated
net sales or net operating income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Prospectus (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of
each of the Issuers and their subsidiaries subject to the
internal controls of the Issuers' accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results,
except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
9
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of either of the Issuers or any Underwriter, shall be
contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of either of the Issuers
and their subsidiaries, taken as one enterprise, which, in the
judgment of CSFBC, is so material and adverse as to make it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities of either of the
Issuers by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of either of the Issuers
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating) or any announcement that either of the Issuers has been placed
on negative outlook; (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange rates
or exchange controls as would, in the judgment of CSFBC, be likely to
prejudice materially the success of the proposed issue, sale or
disposition of the Offered Securities, whether in the primary market
or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any
securities of either of the Issuers on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S.
Federal or New York authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States;
or (vii) any attack on, outbreak or escalation of hostilities or act
of terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency
if, in the judgment of CSFBC, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d)(i) The Representatives shall have received an opinion, dated
the Closing Date, of Mayer, Brown, Xxxx & Maw, counsel for the
Issuers, to the effect that:
(A) Each of the Issuers has been duly incorporated or
formed, as the case may be, and is an existing corporation or
limited partnership, as the case may be, in good standing under
the laws of the State of Delaware, with corporate or partnership
power, as the case may be, and authority to own its properties
and conduct its business as described in the Prospectus; and each
of the Issuers is in good standing in the State of Missouri; each
of the Issuers has full power and authority (corporate or
partnership, as the case may be) to authorize, issue and sell the
Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
10
(B) The Operating Partnership has been duly formed and is an
existing limited partnership in good standing under the laws of
the State of Delaware with partnership power and authority to own
its properties and conduct its business as described in the
Prospectus; and the Operating Partnership is in good standing in
the State of Missouri;
(C) Each of the Issuers is, and after giving effect to the
offering and sale of the Offered Securities and the application
of the proceeds thereof as described in the Prospectus (assuming
such proceeds are applied as described in the Prospectus), will
be exempt from regulation as an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended;
(D) Except as disclosed in the Prospectus, no consent,
approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in
connection with the issuance and sale of the Offered Securities
by the Issuers, except such (i) as have been obtained, (ii) to be
made under the Act and the Trust Indenture Act, (iii) as may be
required under state securities laws, or (iv) as the failure to
obtain or make would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the
ability of the Issuers to execute, deliver and perform the
transactions contemplated by the Terms Agreement in accordance
with its terms;
(E) The execution, delivery and performance of the Indenture
and the Terms Agreement (including the provisions of this
Agreement) and the issuance and sale of the Offered Securities
and compliance with the terms and provisions thereof will not (i)
conflict with or result in a violation of any of the provisions
of the certificate of incorporation, certificate or agreement of
limited partnership, articles of formation, or by-laws, as the
case may be, in effect on the date hereof of the Issuers, (ii)
solely with respect to the Terms Agreement and to the knowledge
of such counsel, conflict with or violate in any material respect
any law, rule, regulation, order, judgment or decree applicable
to the Issuers or by which any property or asset of any of the
Issuers is or may be bound or (iii) result in a breach of any of
the material terms or provisions of, or constitute a default
(with or without due notice and/or lapse of time) under, any loan
or credit agreement, indenture, mortgage, note or other agreement
or instrument identified in any exhibit list to the filings of
the Issuers incorporated by reference in the Prospectus as of the
date hereof, except, in the case of clause (ii) or (iii) where
such conflict, violation, breach or default will not prevent the
consummation of the transactions contemplated herein and would
not reasonably be expected to have a Material Adverse Effect;
provided, however, that for the purposes of this paragraph (E),
no opinion is expressed with respect to antifraud laws and
fraudulent transfer laws;
11
(F) The Registration Statement has become effective under
the Act, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein, and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or
contemplated under the Act; the Registration Statement and the
Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, (other than the
financial information contained or incorporated by reference
therein, as to which such counsel expresses no opinion) appear on
their face to comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations;
(G) The statements set forth in the Prospectus under the
caption "Tax Considerations," insofar as such statements purport
to constitute a summary of the material United States federal
income tax consequences to holders of Offered Securities, are
accurate in all material respects;
(H) Ferrellgas Partners is properly classified as a
partnership for United States federal income tax purposes and not
as an association (or a publicly traded partnership) taxable as a
corporation; and
(I) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by
each of the Issuers.
Such counsel shall also advise that they have participated
in conferences with officers and other representatives of the
Issuers, representatives of the independent public accountants of
the Issuers and representatives and counsel of the Underwriters
at which the contents of the Registration Statement and the
Prospectus were discussed and, based on such participation and
review, although such counsel is not passing upon and does not
assume responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement and the
Prospectus and such counsel has made no independent check or
verification thereof, on the basis of the foregoing, no facts
have come to such counsel's attention that have caused them to
believe that the Registration Statement, as of the date of the
Terms Agreement or as of the Closing Date, or any amendment
thereto, as of its date or as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus, as
of the date of the Terms Agreement or as of the Closing Date, or
any amendment or supplement thereto, as of its date or as of the
Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with
respect to the financial information contained in or incorporated
by reference in the Registration Statement and Prospectus).
12
(ii) The Representatives shall have received an opinion, dated
the Closing Date, of Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel for the
Issuers, to the effect that:
(A) The Indenture has been duly authorized, executed and
delivered by each of the Issuers and has been qualified under the
Trust Indenture Act; the Offered Securities have been duly
authorized and executed by each of the Issuers; the Indenture
constitutes and, when authenticated by the Trustee and issued and
delivered in the manner provided in the Indenture against payment
of the consideration therefore pursuant to the Terms Agreement,
the Offered Securities will constitute valid and legally binding
obligations of each of the Issuers enforceable in accordance with
their terms, except that the enforceability thereof may be
limited by (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws now or hereafter in
effect relating to or affecting creditors' rights generally, (ii)
limitations imposed by public policy, applicable law relating to
fiduciary duties and the judicial imposition of an implied
covenant of good faith and fair dealing, (iii) limitations under
Federal or state securities laws with respect to the rights of
indemnification or contribution thereunder and (iv) general
principles of equity;
(B) The Offered Securities conform in all material respects
to the description thereof under the caption "Description of Debt
Securities" in the Prospectus, as supplemented by the description
thereof under the caption "Description of Notes" in the
Prospectus;
(C) The statements set forth in the Prospectus under the
caption "Description of Other Indebtedness and Other Financial
Obligations," insofar as such statements purport to summarize
provisions of contracts or other instruments referred to therein,
fairly summarize such provisions in all material respects;
(D) The execution, delivery and performance of the Indenture
and compliance with the terms and provisions thereof will not (i)
to the knowledge of such counsel, conflict with or violate in any
material respect any law, rule, regulation, order, judgment or
decree applicable to the Issuers or by which any property or
asset of any of the Issuers is or may be bound or (iii) result in
a breach of any of the material terms or provisions of, or
constitute a default (with or without due notice and/or lapse of
time) under, any loan or credit agreement, indenture, mortgage,
note or other agreement or instrument identified in any exhibit
list to the filings of the Issuers incorporated by reference in
the Prospectus as of the date hereof, except, in the case of
clause (i) or (ii) where such conflict, violation, breach or
default will not prevent the consummation of the transactions
contemplated herein and would not reasonably be expected to have
a Material Adverse Effect; provided, however, that for the
purposes of this paragraph (D), no opinion is expressed with
respect to antifraud laws and fraudulent transfer laws; and
13
(E) The Registration Statement and the Prospectus, as of the
date of the Terms Agreement, and any amendment or supplement
thereto, as of its date, (other than the financial information
contained or incorporated by reference therein or omitted
therefrom and the Trustee's Statement of Eligibility on Form T-1,
as to which such counsel expresses no opinion) appear on their
face to comply as to form in all material respects with the
requirements of the Trust Indenture Act.
(e) The Representatives shall have received from Xxxxxx &
Xxxxxxx, counsel for the underwriters, an opinion, dated the Closing
Date, with respect to the incorporation or formation, as the case may
be, of each of the Issuers, the validity of the Offered Securities,
the Registration Statement, the Prospectus and other related matters
as the Representatives may require, and the Issuers shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of each of the Issuers in
which such officers, to their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Issuers in this Agreement are true and correct, that the Issuers
have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of Ferrellgas Partners
and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(g) The Representatives shall have received a letter, dated the
Closing Date, of Deloitte & Touche LLP which meets the requirements of
subsection (a) of this Section 5, except that the specified date
referred to in such subsection will be a date not more than three days
prior to the Closing Date for the purposes of this subsection.
Each of the Issuers will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters under this Agreement and the Terms
Agreement.
(h) The tender offer for the Issuers' 9?% Senior Secured Notes due
2006 shall have been completed and the Issuers shall have fulfilled all
their obligations under the Dealer Manager and Consent Solicitation
Agreement, dated as of July 1, 2002, by and among the Issuers and CSFBC.
14
6. Indemnification and Contribution. (a) Each of the Issuers will,
jointly and severally, indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the indemnity agreement contained in this Section 6(a) with respect to any
preliminary prospectus supplement (or any amendment or supplement thereto)
shall not inure to the benefit of any Underwriter, its partners, officers
or directors (or to the benefit of any person controlling such Underwriter)
from whom the person asserting any such loss, damage, expense, liability or
claim purchased the Offered Securities that are the subject thereof if the
final prospectus supplement corrected any such alleged untrue statement or
omission and if such Underwriter, its partners, officers or directors,
failed to send or give a copy of the final prospectus supplement to such
person at or prior to the written confirmation of the sale of such Offered
Securities to such person, unless the failure is the result of
non-compliance by the Issuers with paragraph (c) of Section 4 hereof; and
provided, further that the Issuers will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Issuers by any
Underwriter through the Representatives, if any, specifically for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in the Terms Agreement.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless each of the Issuers, their partners, directors and officers and
each person, if any, who controls the Issuers within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities to which
the Issuers may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out
of or are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Issuers by such Underwriter
through the Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Issuers in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the information described as such in the Terms Agreement.
15
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under
this Section 6 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include
a statement as to, or an admission of, fault, culpability or a failure to
act by or behalf of an indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by each of the Issuers, on the one hand, and the
Underwriters, on the other, from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of each of the Issuers, on the one hand, and the Underwriters, on the
other, in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by each of the
Issuers, on the one hand, and the Underwriters, on the other, shall be
deemed to be in the same proportion as the total net proceeds from the
offering (net of underwriting discounts and commissions but before
deducting expenses) received by each of the Issuers bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by each of the Issuers or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
16
(e) The obligations of each of the Issuers under this Section 6 shall
be in addition to any liability which the Issuers may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 6 shall be in addition
to any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Issuers, to each officer of the Issuers who has signed the Registration
Statement and to each person, if any, who controls the Issuers within the
meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms
Agreement and the aggregate principal amount of Offered Securities that
such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount of Offered Securities,
CSFBC may make arrangements satisfactory to the Issuers for the purchase of
such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments under the Terms Agreement (including the
provisions of this Agreement), to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase. If any Underwriter
or Underwriters so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10%
of the total principal amount of Offered Securities and arrangements
satisfactory to CSFBC and the Issuers for the purchase of such Offered
Securities by other persons are not made within 36 hours after such
default, the Terms Agreement will terminate without liability on the part
of any non-defaulting Underwriter or Issuer, except as provided in Section
8. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 7. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements
of each of the Issuers and of the several Underwriters set forth in the
Terms Agreement (including the provisions of this Agreement) will remain in
full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, either of the
Issuers or any of their respective representatives, officers or directors
or any controlling person, and will survive delivery of and payment for the
Offered Securities. If the Terms Agreement is terminated pursuant to
Section 7 or if for any reason the purchase of the Offered Securities by
the Underwriters is not consummated, each of the Issuers shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4 and the respective obligations of each of the Issuers and the
Underwriters pursuant to Section 6 shall remain in effect. If the purchase
of the Offered Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of the Terms Agreement
pursuant to Section 7 or the occurrence of any event specified in clause
(iii), (iv), (v), (vi) or (vii) of Section 5(c), each of the Issuers,
jointly and severally, will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
17
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at Credit Suisse First Boston Corporation, Eleven Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Marc Warm or, if sent to the
Issuers, will be mailed, delivered or telegraphed and confirmed to them at
Ferrellgas Partners L.P., Xxx Xxxxxxx Xxxxx, Xxxxxxx, XX 00000, Attention:
Xxxxx X. Xxxxx.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon each of the
Issuers and such Underwriters as are identified in the Terms Agreement and
their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right
or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the
Terms Agreement, and any action under such Terms Agreement (including the
provisions of this Agreement) taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Issuers hereby submit to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to the Terms
Agreement (including the provisions of this Agreement) or the transactions
contemplated thereby.
18
Ferrellgas Partners, L.P.
Ferrellgas Partners Finance Corp.
(collectively, the "Issuers")
Debt Securities
TERMS AGREEMENT
September 10, 2002
To: The Representatives of the Underwriters identified herein
Dear Ladies and Gentlemen:
The undersigned agrees to sell to the several Underwriters named in
Schedule A hereto for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to
the registration statement of the Issuers on Form S-3 (No. 333-71111)
("Underwriting Agreement"), the following securities ("Offered Securities")
on the following terms:
Title: 8 3/4% Senior Notes due 2012.
Principal Amount: $170,000,000.
Interest: 8 3/4% per annum, from September 24, 2002, payable
semiannually on June 15 and December 15, commencing December 15, 2002, to
holders of record on the preceding June 1 or December 1, as the case may
be.
Maturity: June 15, 2012.
Optional Redemption: On or after June 15, 2007.
Sinking Fund: None.
Listing: None.
Purchase Price: 97.50% of principal amount, plus accrued interest, if
any, from September 24, 2002.
Expected Reoffering Price: 100% of principal amount, subject to change
by CSFBC.
Closing: 9:00 A.M. on September 24, 2002 at the offices of Xxxxxx &
Xxxxxxx, New York, New York, in Federal (same day) funds.
Settlement and Trading: Book-Entry Only via DTC.
1
Name and Address of the Underwriters: Credit Suisse First Boston Corp.
Eleven Madison Ave.
New York, New York 10010
Banc of America Securities LLC
0 Xxxx 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
The respective principal amounts of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the offices of Xxxxxx & Xxxxxxx at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Issuers by any Underwriter for use in the
Prospectus consists of the following information in the Prospectus furnished on
behalf of each Underwriter: (i) the list of Underwriters and their respective
participation in the sale of the Offered Securities in the preliminary and final
prospectus supplement; (ii) the concession and reallowance sentences appearing
in the third paragraph under the caption "Underwriting" in the preliminary
prospectus supplement; and (iii) the information contained in the (a) fourth and
sixth paragraphs in the preliminary prospectus supplement and (b) third and
fifth paragraphs in the final prospectus supplement, under the caption
"Underwriting."
[signature page to follow]
2
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Issuers one of the counterparts hereof, whereupon
it will become a binding agreement among the Issuers and the several
Underwriters in accordance with its terms.
Very truly yours,
FERRELLGAS PARTNERS, L.P.
By: Ferrellgas, Inc.,
its General Partner
By:/s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
FERRELLGAS PARTNERS FINANCE CORP.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Managing Director
Acting on behalf of itself and as the
Representative of the several Underwriters.
3
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
Credit Suisse First Boston Corporation...................... $86,700,000
Banc of America Securities LLC ............................. 57,800,000
Banc One Capital Markets, Inc............................... 8,500,000
BNP Paribas Securities Corp................................. 8,500,000
Xxxxx Fargo Brokerage Services, LLC......................... 8,500,000
-----------
Total............................................... $170,000,000
4
