(iii) which is not, on any date of determination, a Defaulted Receivable or a Charged-Off Receivable,
(iv) which by its terms is due and payable within 30 days of the original billing date therefore and has not had its payment terms extended,
(v) which is an “account” within the meaning of Article 9 of the UCC of all applicable jurisdictions,
(vi) which is denominated and payable only in United States dollars in the United States,
(vii) which arises under an invoice, which, together with such Receivable, is in full force and effect and constitutes the legal, valid and binding obligation of the related Obligor enforceable against such Obligor in accordance with its terms subject to no offset, counterclaim or other defense,
(viii) which arises under an invoice which (A) does not require the Obligor under such invoice to consent to the transfer, sale or assignment of the rights and duties of Originator or any of its assignees under such invoice and (B) does not contain a confidentiality provision that purports to restrict the ability of Buyer or any of its assigns to exercise its rights under the Transaction Documents, including, without limitation, its right to review such invoice,
(ix) which arises under an invoice that contains an obligation to pay a specified sum of money, contingent only upon the sale of propane or the provision of services by Originator,
(x) which, together with the invoice related thereto, does not contravene any law, rule or regulation applicable thereto (including, without limitation, any law, rule and regulation relating to truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no part of the invoice related thereto is in violation of any such law, rule or regulation,
(xi) which satisfies all material requirements of the Credit and Collection Policy,
(xii) which was generated in the ordinary course of Originator’s business,
(xiii) which arises solely from the sale of propane or the provision of services to the related Obligor by Originator, and not by any other Person (in whole or in part),
(xiv) as to which the Agent has not notified Originator or Buyer that the Agent has determined, in the exercise of its commercially reasonable credit judgment, that such Receivable or class of Receivables is not acceptable as an Eligible Receivable,
(xv) which is not subject to any right of rescission, set-off, counterclaim, any other defense (including defenses arising out of violations of usury laws) of the applicable Obligor against Originator or any other Adverse Claim, and the Obligor thereon
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holds no right as against Originator to cause Originator to repurchase the propane the sale of which shall have given rise to such Receivable (except with respect to sale discounts effected pursuant to the invoice, or defective goods returned in accordance with the terms of the invoice),
(xvi) as to which Originator has satisfied and fully performed all obligations on its part with respect to such Receivable required to be fulfilled by it, and no further action is required to be performed by any Person with respect thereto other than payment thereon by the applicable Obligor,
(xvii) in which Buyer’s undivided ownership interest therein is free and clear of any Adverse Claim, and
(xviii) of which the Obligor and its Affiliates (considered as if they were one and the same Obligor) are not the Obligors on more than 2% of the aggregate Outstanding Balance of all Receivables.
“Environmental Laws” means all federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authorities, in each case relating to environmental, health, safety and land use matters.
“Equity Interests” means Capital Interests and all warrants, options or other rights to acquire Capital Interests (but excluding any debt security that is convertible into, or exchangeable for, Capital Interests).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and regulations promulgated thereunder.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by Originator or the General Partner from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (c) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a Pension Plan subject to Title IV of ERISA; (d) a failure by Originator or the General Partner to make required contributions to a Pension Plan or other Plan subject to Section 412 of the Code; (e) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Originator or the General Partner; or (g) an application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code with respect to any Pension Plan.
“Event of Default”has the meaning specified in the Credit Agreement.
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“Exchange Act” means the Securities Exchange Act of 1934, and regulations promulgated thereunder.
“Facility Account”means the account at Wells Fargo Bank in Dallas, Texas designated in writing to the Servicer and the Agent as being the “Facility Account”.
“FCI ESOT” means the employee stock ownership trust of Ferrell Companies, Inc. organized under Section 4975(e)(7) of the Code.
“Finance Charges” means, with respect to a Contract, any finance, interest, late payment charges or similar charges owing by an Obligor pursuant to such Contract.
“Fixed Charge Coverage Ratio” means with respect to Originator and the Restricted Subsidiaries for any period, the ratio of Consolidated Cash Flow for such period to Fixed Charges for such period. In the event that Originator or any of the Restricted Subsidiaries (a) incurs, assumes or guarantees any Indebtedness or Synthetic Lease Obligations (other than revolving credit borrowings including, with respect to the Originator, the Loans) or (b) redeems or repays any Indebtedness or Synthetic Lease Obligations (other than revolving credit borrowings that are properly classified as a current liability for GAAP including, with respect to the Originator, the Loans to the extent that such Loans are so classified and excluding, regardless of classification, any Loans or other Indebtedness or Synthetic Lease Obligations the proceeds of which are used for Acquisitions or Growth Related Capital Expenditures), in any case subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to the date of the event for which the calculation of the Fixed Charge Coverage Ratio is made (the“Fixed Charge Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption or repayment of Indebtedness or Synthetic Lease Obligations, as if the same had occurred at the beginning of the applicable reference period. The foregoing calculation of the Fixed Charge Coverage Ratio shall also give pro forma effect to Acquisitions (including all mergers and consolidations), Asset Sales and other dispositions and discontinuances of businesses or assets that have been made by Originator or any of the Restricted Subsidiaries during the reference period or subsequent to such reference period and on or prior to the Fixed Charge Ratio Calculation Date assuming that all such Acquisitions, Asset Sales and other dispositions and discontinuances of businesses or assets had occurred on the first day of the reference period;provided, however, that with respect to Originator and the Restricted Subsidiaries, (a) Fixed Charges shall be reduced by amounts attributable to businesses or assets that are so disposed of or discontinued only to the extent that the obligations giving rise to such Fixed Charges would no longer be obligations contributing to the Fixed Charges of Originator or the Restricted Subsidiaries subsequent to Fixed Charge Ratio Calculation Date and (b) Consolidated Cash Flow generated by an acquired business or asset of Originator or the Restricted Subsidiaries shall be determined by the actual gross profit (revenues minus costs of goods sold) of such acquired business or asset during the immediately preceding number of full fiscal quarters as are in the reference period minus the pro forma expenses that would have been incurred by Originator and the Restricted Subsidiaries in the operation of such acquired business or asset during such period computed on the basis of (i) personnel expenses for employees retained by Originator and the Restricted Subsidiaries in the operation of the acquired business or asset and (ii) non-personnel costs and expenses incurred by Originator and the Restricted
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Subsidiaries on a per gallon basis in the operation of the Originator’s business at similarly situated Originator facilities.
“Fixed Charges” means, with respect to Originator and the Restricted Subsidiaries for any period, the sum, without duplication, of (a) Consolidated Interest Expense for such period, whether paid or accrued, to the extent such expense was deducted in computing Consolidated Net Income (including amortization of original issue discounts, non-cash interest payments, the interest component of all payments associated with Capital Lease Obligations and net payments (if any) pursuant to Hedging Obligations permitted under this Agreement), (b) commissions, discounts and other fees and charges incurred with respect to letters of credit, (c) any interest expense on Indebtedness of another Person that is guaranteed by Originator and the Restricted Subsidiaries or secured by an Adverse Claim on assets of any such Person, and (d) the product of (i) all cash dividend payments on any series of preferred stock of Originator and the Restricted Subsidiaries, times (ii) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of the Originator, expressed as a decimal, determined, in each case, on a consolidated basis and in accordance with GAAP.
“Funded Amount” means, as of any date of determination through and including the Termination Date, the Aggregate Capital (under and as defined in the Purchase Agreement) then outstanding.
“Funded Debt” means all Indebtedness of Originator and the Restricted Subsidiaries, excluding all Contingent Obligations of Originator and the Restricted Subsidiaries under or in connection with Letters of Credit outstanding from time to time.
“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination.
“General Partner” means Ferrellgas, Inc., a Delaware corporation and the sole general partner of Originator.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.
“Growth-Related Capital Expenditures” means, with respect to any Person, all capital expenditures by such Person made to improve or enhance the existing capital assets or to increase the customer base of such Person or to acquire or construct new capital assets (but excluding capital expenditures made to maintain, up to the level thereof that existed at the time of such expenditure, the operating capacity of the capital assets of such Person as such assets existed at the time of such expenditure).
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“Guarantor”has the meaning specified in the Credit Agreement.
“Guaranty Obligation” has the meaning specified in the definition of “Contingent Obligation.”
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under (a) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements and (b) other agreements or arrangements designed to protect such Person against fluctuations in interest rates.
“Indebtedness” of any Person means, without duplication: (a) all indebtedness for borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business on ordinary terms); (c) all non-contingent reimbursement or payment obligations with respect to Surety Instruments; (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to property acquired by the Person (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property); (f) all Capital Lease Obligations; (g) all Hedging Obligations; (h) all obligations in respect of Accounts Receivable Securitizations (as defined in the Credit Agreement); (i) all indebtedness referred to in clauses (a) through (h) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Adverse Claim upon or in property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; and (j) all Guaranty Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (i) above;provided, however, that“Indebtedness” shall not include Synthetic Lease Obligations.
“Indemnified Amounts” has the meaning specified inSection 8.1.
“Indemnified Party” has the meaning specified inSection 8.1.
“Independent Auditor” has the meaning specified inSection 5.1(a).
“Initial Computation Date” means the close of business on June 6, 2005.
“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other similar arrangement in respect of a Person’s creditors generally or any substantial portion of a Person’s creditors; undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.
“Interest Coverage Ratio” means with respect to Originator and the Restricted Subsidiaries for any period, the ratio of Consolidated Cash for such period to Consolidated
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Interest Expense for such period. In the event that Originator or any of the Restricted Subsidiaries (a) incurs, assumes or guarantees any Indebtedness or Synthetic Lease Obligations (other than revolving credit borrowings including, with respect to the Originator, the Loans) or (b) redeems or repays any Indebtedness or Synthetic Lease Obligations (other than revolving credit borrowings that are properly classified as a current liability under GAAP including, with respect to the Originator, the Loans, to the extent such Loans are so classified and excluding, regardless of classification, any Loans or other Indebtedness or Synthetic Lease Obligations the proceeds of which are used for Acquisitions or Growth Related Capital Expenditures), in any case subsequent to the commencement of the period for which the Interest Coverage Ratio is being calculated, but prior to the date on which the calculation of the Interest Coverage Ratio is made (the“Interest Coverage Ratio Calculation Date”), then the Interest Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption or repayment of Indebtedness or Synthetic Lease Obligations, as if the same had occurred at the beginning of the applicable reference period. The foregoing calculation of the Interest Coverage Ratio shall also give pro forma effect to Acquisitions (including all mergers and consolidations), Asset Sales and other dispositions and discontinuances of businesses or assets that have been made by Originator or any of the Restricted Subsidiaries during the reference period or subsequent to such reference period and on or prior to the Interest Coverage Ratio Calculation Date assuming that all such Acquisitions, Asset Sales and other dispositions and discontinuances of businesses or assets had occurred on the first day of the reference period;provided, however, that with respect to Originator and the Restricted Subsidiaries, (a) Consolidated Interest Expense shall be reduced by amounts attributable to businesses or assets that are so disposed of or discontinued only to the extent that the Indebtedness or Synthetic Lease Obligations giving rise to such Consolidated Interest Expense would no longer be Indebtedness or Synthetic Lease Obligations contributing to the Consolidated Interest Expense of Originator or the Restricted Subsidiaries subsequent to the Interest Coverage Ratio Calculation Date and (b) Consolidated Cash Flow generated by an acquired business or asset of Originator and the Restricted Subsidiaries shall be determined by the actual gross profit (revenues minus costs of goods sold) of such acquired business or asset during the immediately preceding number of full fiscal quarters as in the reference period minus the pro forma expenses that would have been incurred by Originator and the Restricted Subsidiaries in the operation of such acquired business or asset during such period computed on the basis of (i) personnel expenses for employees retained by Originator and the Restricted Subsidiaries in the operation of the acquired business or asset and (ii) non-personnel costs and expenses incurred by Originator and the Restricted Subsidiaries on a per gallon basis in the operation of the Originator’s business at similarly situated facilities of the Originator.
“Letter of Credit”has the meaning provided in the Credit Agreement.
“Leverage Ratio” means, with respect to Originator and the Restricted Subsidiaries for any period, the ratio of Funded Debt plus Synthetic Lease Obligations, in each case of Originator and the Restricted Subsidiaries as of the last day of such period, to Consolidated Cash Flow for such period. In the event that Originator or any of the Restricted Subsidiaries (a) incurs, assumes or guarantees any Indebtedness or Synthetic Lease Obligations (other than revolving credit borrowings including, with respect to the Originator, the Loans) or (b) redeems or repays any Indebtedness or Synthetic Lease Obligations (other than revolving credit borrowings that are properly classified as a current liability under GAAP including, with
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respect to the Originator, the Loans to the extent such Loans are so classified and excluding, regardless of classification, any Loans or other Indebtedness or Synthetic Lease Obligations the proceeds of which are used for Acquisitions or Growth Related Capital Expenditures), in any case subsequent to the commencement of the period for which the Leverage Ratio is being calculated but prior to the date on which the calculation of the Leverage Ratio is made (the“Leverage Ratio Calculation Date”), then the Leverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption or repayment of Indebtedness or Synthetic Lease Obligations, as if the same had occurred at the beginning of the applicable reference period. The foregoing calculation of the Leverage Ratio shall also give pro forma effect to Acquisitions (including all mergers and consolidations), Asset Sales and other dispositions and discontinuances of businesses or assets that have been made by Originator or any of the Restricted Subsidiaries during the reference period or subsequent to such reference period and on or prior to the Leverage Ratio Calculation Date assuming that all such Acquisitions, Asset Sales and other dispositions and discontinuances of businesses or assets had occurred on the first day of the reference period;provided, however, that with respect to Originator and the Restricted Subsidiaries, (a) Funded Debt and Synthetic Lease Obligations shall be reduced by amounts attributable to businesses or assets that are so disposed of or discontinued only to the extent that the Indebtedness or Synthetic Leases included within such Funded Debt and Synthetic Lease Obligations would no longer be an obligation of Originator or the Restricted Subsidiaries subsequent to the Leverage Ratio Calculation Date and (b) Consolidated Cash Flow generated by an acquired business or asset of Originator or the Restricted Subsidiaries shall be determined by the actual gross profit (revenues minus costs of goods sold) of such acquired business or asset during the immediately preceding number of full fiscal quarters as in the reference period minus the pro forma expenses that would have been incurred by Originator and the Restricted Subsidiaries in the operation of such acquired business or asset during such period computed on the basis of (i) personnel expenses for employees retained by Originator and the Restricted Subsidiaries in the operation of the acquired business or asset and (ii) non-personnel costs and expenses incurred by Originator and the Restricted Subsidiaries on a per gallon basis in the operation of the Originator’s business at similarly situated facilities of the Originator.
“Loan”has the meaning provided in the Credit Agreement.
“Material Adverse Effect” means (i) a material adverse change in, or a material adverse effect upon, the operations, business, properties, condition (financial or otherwise) or prospects of Originator; (ii) a material impairment of the ability of Originator or any Subsidiary to perform under any Transaction Document to which it is a party; (iii) a material adverse effect upon the legality, validity, binding effect or enforceability against Originator or any Subsidiary of any Transaction Document to which it is a party; (iv) a material adverse effect upon Originator’s, Buyer’s, the Agent’s or any Purchaser’s interest in the Pool Receivables generally or in any significant portion of the Pool Receivables, or (v) a material adverse effect upon the collectibility of the Pool Receivables generally or of any material portion of the Pool Receivables.
“Minimum Receivables Percentage” means, on any date of determination through and including the Termination Date, a variable undivided interest in and to the Pool Receivables and the associated Collections and all proceeds of the foregoing, which interest is equal to the percentage equal to a fraction, the numerator of which is equal to the Adjusted Pool
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Amount as of such date of determination, and the denominator of which is the aggregate Outstanding Balance of all Pool Receivables as of the close of business on the Business Day immediately preceding the date of determination.
“MLP” means Ferrellgas Partners, L.P., a Delaware limited partnership and the sole limited partner of the Originator.
“Net Income” means, with respect to Originator and the Restricted Subsidiaries, the net income (loss) of such Persons, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however, (a) any gain (but not loss), together with any related provision for taxes on such gain (but not loss), realized in connection with (i) any asset sale (including, without limitation, dispositions pursuant to sale and leaseback transactions), or (ii) the disposition of any securities or the extinguishment of any Indebtedness of Originator or any of the Restricted Subsidiaries, and (b) any extraordinary gain (but not loss), together with any related provision for taxes on such extraordinary gain (but not loss).
“Non-Recourse Subsidiary” has the meaning specified in the Credit Agreement.
“Obligor” means a Person obligated to make payments pursuant to a Contract.
“Organization Documents” means, (a) for any corporation, the certificate or articles of incorporation, the bylaws, any certificate of determination or instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, and all applicable resolutions of the board of directors (or any committee thereof) of such corporation, (b) for any general or limited partnership, the partnership agreement of such partnership and all amendments thereto and any agreements otherwise relating to the rights of the partners thereof, and (c) for any limited liability company, the limited liability, operating or similar agreement and all amendments thereto and any agreements otherwise relating to the rights of the members thereof.
“Original Purchase Agreement” has the meaning set forth in the Preliminary Statements.
“Originator” has the meaning set forth in the preamble to the Agreement.
“Originator’s Account” has the meaning set forth inSection 1.3(a).
“Originator’s Percentage”means, on any date of determination, 100%minusthe Buyer’s Percentage on such date.
“Outstanding Balance” of any Pool Receivable at any time means the then outstanding principal balance thereof.
“Partnership Agreement” shall mean the Third Amended and Restated Agreement of Limited Partnership of Originator dated April 7, 2004, as amended from time to time in accordance with the terms of this Agreement.
“PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to any of its principal functions under ERISA.
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“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA which Originator or the General Partner sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, or in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five (5) plan years.
“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.
“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which Originator sponsors or maintains or to which Originator or the General Partner makes, is making, or is obligated to make contributions and includes any Pension Plan.
“Pool Receivables”means, collectively, all Eligible Receivables existing on the Initial Computation Date and all Eligible Receivables arising after the Initial Computation Date through and including the Termination Date, and“Pool Receivable”means any such Eligible Receivable individually. For the avoidance of doubt, a Receivable shall cease to be a Pool Receivable if on any day prior to the Termination Date, such Receivable ceases to be an Eligible Receivable, but shall continue to be a Pool Receivable if it ceases to be an Eligible Receivable on or after the Termination Date. For purposes of calculating the amount of all "Pool Receivables" at any time, such amount shall be the Outstanding Balance of all such Pool Receivables minus $1,000,000.
“Potential Termination Event” means an event which, with the passage of time or the giving of notice, or both, would constitute a Termination Event.
“Prime Rate” means a rate per annum equal to the prime rate of interest announced from time to time by JPMorgan Chase Bank, N.A. or its Originator (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes
“Purchase” means the purchase pursuant toSection 1.2(a) of the Agreement by Buyer from Originator of the Receivable Interest, together with all related rights in connection therewith.
“Purchase Agreement” has the meaning set forth in the Preliminary Statements to the Agreement.
“Purchase Price” means, on any date of determination, the aggregate price to be paid by Buyer to Originator for the Receivable Interest, which price shall equal (a) the product of (i) the Variable Purchased Percentage on such date,multiplied by(ii) the Outstanding Balance of the Pool Receivables as of the close of business on the Business Day preceding the date of determination,multipliedby (iii) one minus the Discount Factor in effect on such date.
“Receivable” means each account receivable owed to Originator (at the time it arises, and before giving effect to any transfer or conveyance under the Agreement), arising in connection with the sale of propane or provision of related services by Originator, including, without limitation, the obligation to pay any Finance Charges with respect thereto. Accounts receivable arising from any one transaction, including, without limitation, accounts receivable
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represented by a single invoice, shall constitute a Receivable separate from a Receivable consisting of the accounts arising from any other transaction;provided,further, that any account receivable referred to in the immediately preceding sentence shall be a Receivable regardless or whether the account debtor or Originator treats such obligation as a separate payment obligation.
“Receivable Interest”means a specified dollar amount of Pool Receivables which equates to a variable undivided percentage interest (equal to the Variable Purchased Percentage) in and to the Pool Receivables, the associated Related Security and Collections and all proceeds of the foregoing.
“Records” means, with respect to any Pool Receivable, (i) any and all customer information regarding payment history of the applicable Obligor, propane gallons delivered to the applicable Obligor, timing of propane gallons delivered to the applicable Obligor, payment terms and prices charged to the applicable Obligor, and (ii) any and all invoices evidencing all or any portion of the amount owing under such Pool Receivable, whether each of the foregoing is in paper or electronic form.
“Related Party” means (a) the spouse or any lineal descendant of James E. Ferrell, (b) any trust for his benefit or for the benefit of his spouse or any such lineal descendants, (c) any corporation, partnership or other entity in which James E. Ferrell and/or such other Persons referred to in the foregoing clauses (a) and (b) are the direct record and beneficial owners of all of the voting and nonvoting Equity Interests, (d) the FCI ESOT or (e) any participant in the FCI ESOT whose ESOT account has been allocated shares of Ferrell Companies, Inc.
“Related Security” means, with respect to any Pool Receivable:
(i) | all Records related to such Pool Receivable, and | |
(ii) | all proceeds of such Pool Receivable or Records. |
“Reportable Event” means any of the events set forth in Section 4043(b) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.
“Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.
“Responsible Officer” means the chief executive officer, the president, the chief financial officer, director of finance, the treasurer or assistant treasurer of the General Partner or any other officer having substantially the same authority and responsibility to act for the General Partner on behalf of Originator.
“Restricted Subsidiary”has the meaning provided in the Credit Agreement.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
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“Servicer”has the meaning specified inSection 6.1.
“Servicer’s Concentration Account” means the account in the name of the Servicer at Wells Fargo Bank in Dallas, Texas and designated in writing by the Servicer to the Agent as being the “Servicer’s Concentration Account”.
“Servicing Fee” has the meaning set forth inSection 6.3.
“Settlement Date” has the meaning set forth in the Purchase Agreement.
“Subordinated Loan”means a loan from Originator to Buyer of a portion of the Purchase Price that is evidenced by and payable as provided in the Subordinated Note.
“Subordinated Note” means a subordinated promissory note of the Buyer payable to the order of the Originator in substantially the form of Exhibit V hereto, which promissory note shall evidence that portion of the Purchase Price owing by the Buyer to the Originator at any time in respect of the Receivable Interest owned by the Buyer at such time.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which more than 50% of the total voting power of shares of Capital Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof (or, in the case of a limited partnership, more than 50% of either the general partners’ Capital Interests or the limited partners’ Capital Interests) is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof. Unless otherwise indicated in this Agreement,“Subsidiary” shall mean a Subsidiary of the Originator. Notwithstanding the foregoing, any Subsidiary of Originator that is designated a“Non-Recourse Subsidiary” pursuant to the definition thereof in this Agreement shall, for so long as all of the statements in the definition thereof remain true, not be deemed a Subsidiary of the Originator.
“Surety Instruments” means all letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.
“Synthetic Lease” means each arrangement, however described, under which the obligor accounts for its interest in the property covered thereby under GAAP as lessee of a lease which is not a capital lease under GAAP and accounts for its interest in the property covered thereby for Federal income tax purposes as the owner.
“Synthetic Lease Interest Component” means, with respect to any Person for any period, the portion of rent paid or payable (without duplication) for such period under Synthetic Leases of such Person that would be treated as interest in accordance with Financial Accounting Standards Board Statement No. 13 if such Synthetic Leases were treated as capital leases under GAAP.
“Synthetic Lease Obligation” means, as to any Person with respect to any Synthetic Lease at any time of determination, the amount of the liability of such Person in respect of such Synthetic Lease that would (if such lease was required to be classified and
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accounted for as a capital lease on a balance sheet of such Person in accordance with GAAP) be required to be capitalized on the balance sheet of such Person at such time.
“Synthetic Lease Principal Component” means, with respect to any Person for any period, the portion of rent (exclusive of the Synthetic Lease Interest Component) paid or payable (without duplication) for such period under Synthetic Leases of such Person that was deducted in calculating Consolidated Net Income of such Person for such period.
“Termination Date” means the earliest to occur of (i) the Facility Termination Date under and as defined in the Purchase Agreement, (ii) the Business Day immediately prior to the occurrence of a Termination Event set forth inSection 7.1(f) or (g) with respect to Originator, (iii) the Business Day specified in a written notice from Buyer (or the Agent, as Buyer’s assignee) to Originator following the occurrence of any other Termination Event, and (iv) the date which is 30 Business Days after receipt by the Agent (as Buyer’s assignee) of written notice from Originator that it wishes to terminate the facility evidenced by this Agreement.
“Termination Event” has the meaning set forth inSection 7.1 of the Agreement.
“Transaction Documents” means, collectively, this Agreement, the Purchase Agreement, and all other instruments, documents and agreements executed and delivered by Originator in connection herewith or therewith.
“UCC” means the Uniform Commercial Code as from time to time in effect in the specified jurisdiction.
“Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“Unrestricted Subsidiary” means any Subsidiary which is not a Restricted Subsidiary.
“Variable Contributed Percentage” means, on any date of determination through and including the Termination Date, a variable undivided interest in and to the Pool Receivables and the associated Related Security and Collections and all proceeds of the foregoing, which interest is equal to the percentage of the aggregate Outstanding Balance of all Pool Receivables as of the close of business on the Business Day immediately preceding the date of determination which has been transferred by the Originator to the Buyer in the form of an equity capital contribution.
“Variable Purchased Percentage” means, on any date of determination through and including the Termination Date, the Minimum Receivables Percentage on such dateminus the Variable Contributed Percentage on such date;provided that, (a) from and after the Termination Date until the Aggregate Unpaids have been indefeasibly paid in full, the Variable Purchased Percentage shall be equal to the Variable Purchased Percentage determined as of the date immediately preceding the Termination Date, (b) from and after the date on which the
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Aggregate Unpaids have been indefeasibly paid in full, the Variable Purchased Percentage shall be zero, and (c) at no time shall the Variable Purchased Percentage exceed 100%.
“Wholly-Owned Subsidiary” means a Subsidiary of which all of the outstanding Capital Interests or other ownership interests (other than directors’ qualifying shares) or, in the case of a limited partnership, all of the partners’ Capital Interests (other than up to a 1% general partner interest), is owned, beneficially and of record, by the Originator, a Wholly-Owned Subsidiary of Originator or both.
All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9.
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Exhibit II
Principal Place of Business and Chief Executive Office; Locations of Records;
Federal Employer Identification Number; Other Names
Chief Executive Office and Principal Place of Business:
7500 College Blvd., Suite 1000
Overland Park, Kansas 66210 |
Location of Records:
Same as above and One Liberty Plaza, Liberty, Missouri 64068 |
Federal Employer Identification Number:
Partnership, Trade and Assumed Names:
Ferrellgas
Ferrell North America
American Energy
NRG
Econogas
Barrow Propane
Blue Rhino
Qwik Ship
Global Sourcing
Uniflame
Ferrell Transport
Pro Am
Pro Am Southeast
Pro Am Northeast
Pro Am Texas
Thermogas
Skelgas
Alabama Butane
Blue Flame
Bowden Gas
Bud’s Propane
Crow’s LP Gas
Exhibit III
Form of Compliance Certificate
This Compliance Certificate is furnished pursuant to that certain Amended and Restated Receivable Interest Sale Agreement dated as of June 7, 2005, between Ferrellgas, L.P. (“Originator”) and Ferrellgas Receivables, LLC (the“Agreement”).Capitalized terms used and not otherwise defined herein are used with the meanings attributed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. | I am the duly elected ______________ of Originator. |
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of Originator and its Subsidiaries during the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Termination Event or a Potential Termination Event, as each such term is defined under the Agreement, during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth below.
4. Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which Originator has taken, is taking, or proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth in Schedule I hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this ____ day of __________, 20__.
______________________________
[Name]
Exh I-45
Exhibit IV
Credit and Collection Policy
[attached]
Exhibit V
[Form of] Subordinated Note
SUBORDINATED NOTE
[DATE]
1.Note.FOR VALUE RECEIVED, the undersigned, Ferrellgas Receivables, LLC, a Delaware limited liability company (“Buyer”), hereby unconditionally promises to pay to the order of Ferrellgas, L.P., a Delaware limited partnership (“Seller”), in lawful money of the United States of America and in immediately available funds, on or before the date following the Termination Date which is one year and one day after the date on which (i) the Receivables Interest (as defined in the Receivable Interest Sale Agreement hereinafter described) has been reduced to zero and (ii) all indemnities, adjustments and other amounts which may be owed thereunder in connection with the Receivable Interest (as defined in the Receivable Interest Sale Agreement hereinafter described) have been paid (the“Collection Date”), the aggregate unpaid principal sum outstanding of all Subordinated Loans (as defined in the Receivable Interest Sale Agreement hereinafter described) made from time to time by Seller to Buyer pursuant to and in accordance with the terms of that certain Amended and Restated Receivable Interest Sale Agreement dated as of June 7, 2005, between Seller and Buyer (as amended, restated, supplemented or otherwise modified from time to time, the“Receivable Interest Sale Agreement”). Reference to Section 1.3 of the Receivable Interest Sale Agreement is hereby made for a statement of the terms and conditions under which the loans evidenced hereby have been and will be made.Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Receivable Interest Sale Agreement.
2.Interest. Buyer further promises to pay interest on the outstanding unpaid principal amount hereof from the date hereof until payment in full hereof at a rate equal to the one month LIBOR rate published on the first business day of each month on or after June 1, 2005 inThe Wall Street Journal(“LIBOR”), changing on the first business day of each month;provided, however, that if Buyer shall default in the payment of any principal hereof, Buyer promises to pay, on demand, interest at a rateper annumequal to the sum of LIBOR plus 2.00% per annum on any such unpaid amounts, from the date such payment is due to the date of actual payment. Interest shall be payable on the first Business Day of each month in arrears;provided, however, that Buyer may elect on the date any interest payment is due hereunder to defer such payment and upon such election the amount of interest due but unpaid on such date shall constitute principal under this Subordinated Note. The outstanding principal of any loan made under this Subordinated Note shall be due and payable on the Collection Date and may be repaid or prepaid at any time without premium or penalty.
3.Principal Payments. Seller is authorized and directed by Buyer to enter on the grid attached hereto, or, at its option, in its books and records, the date and amount of each loan made by it which is evidenced by this Subordinated Note and the amount of each payment of principal made by Buyer, and absent manifest error, such entries shall constitute prima facie evidence of the accuracy of the information so entered;provided that neither the failure of Seller to make any such entry or any error therein shall expand, limit or affect the obligations of Buyer hereunder.
4.Subordination. Seller shall have the right to receive, and Buyer shall have the right to make, any and all payments and prepayments relating to the loans made under this Subordinated Note;provided that after giving effect to any such payment or prepayment, the Receivable Interest plus the Contributed Interest equals or exceeds the Minimum Receivables Percentage. Seller hereby agrees that at any time during which the conditions set forth in the proviso of the immediately preceding sentence shall not be satisfied, Seller shall be subordinate in right of payment to the prior payment of any indebtedness or obligation of Buyer owing to the Agent or any Purchaser (each, as defined below) under that certain Amended and Restated Receivables Purchase Agreement, dated as of June 7, 2005, by and among Buyer, Seller, as Servicer, various“Purchasers” from time to time party thereto, and JPMorgan Chase Bank, N.A., as the“Agent” (as amended, restated, supplemented or otherwise modified from time to time, the“Receivables Purchase Agreement”). The subordination provisions contained herein are for the direct benefit of, and may be enforced by, the Agent and the Purchasers and/or any of their respective assignees (collectively, the“Senior Claimants”) under the Receivables Purchase Agreement. Until the date on which the “Aggregate Capital” outstanding under the Receivables Purchase Agreement has been repaid in full and all obligations of Buyer and/or the Servicer thereunder and under the“Fee Letter” referenced therein (all such obligations, collectively, the“Senior Claim”) have been indefeasibly paid and satisfied in full, Seller shall not institute against Buyer any proceeding of the type described inSection 7.1(f) or (g) of the Receivable Interest Sale Agreement unless and until the Collection Date has occurred. Should any payment, distribution or security or proceeds thereof be received by Seller in violation of this Section 4, Seller agrees that such payment shall be segregated, received and held in trust for the benefit of, and deemed to be the property of, and shall be immediately paid over and delivered to the Agent for the benefit of the Senior Claimants.
5.Bankruptcy; Insolvency. Upon the occurrence of any proceeding of the type described in Section 7.1(f) or (g) of the Receivable Interest Sale Agreement involving Buyer as debtor, then and in any such event the Senior Claimants shall receive payment in full of all amounts due or to become due on or in respect of the Aggregate Capital and the Senior Claim (including “CP Costs” and “Yield” as defined and as accruing under the Receivables Purchase Agreement after the commencement of any such proceeding, whether or not any or all of such CP Costs or Yield is an allowable claim in any such proceeding) before Seller is entitled to receive payment on account of this Subordinated Note, and to that end, any payment or distribution of assets of Buyer of any kind or character, whether in cash, securities or other property, in any applicable insolvency proceeding, which would otherwise be payable to or deliverable upon or with respect to any or all indebtedness under this Subordinated Note, is hereby assigned to and shall be paid or delivered by the Person making such payment or delivery (whether a trustee in bankruptcy, a receiver, custodian or liquidating trustee or otherwise) directly to the Agent for application to, or as collateral for the payment of, the Senior Claim until such Senior Claim shall have been paid in full and satisfied.
6.Amendments. The terms of this Subordinated Note may not be amended or otherwise modified without the prior written consent of the Agent for the benefit of the Purchasers.
7.GOVERNING LAW. THIS SUBORDINATED NOTE HAS BEEN MADE AND DELIVERED AT HOUSTON, TEXAS, AND SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN
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ACCORDANCE WITH THE LAWS AND DECISIONS OF THE STATE OF TEXAS. WHEREVER POSSIBLE EACH PROVISION OF THIS SUBORDINATED NOTE SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS SUBORDINATED NOTE SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS SUBORDINATED NOTE.
8.Waivers. All parties hereto, whether as makers, endorsers, or otherwise, severally waive presentment for payment, demand, protest and notice of dishonor. Seller additionally expressly waives all notice of the acceptance by any Senior Claimant of the subordination and other provisions of this Subordinated Note and expressly waives reliance by any Senior Claimant upon the subordination and other provisions herein provided.
9.Assignment. This Subordinated Note may not be assigned, pledged or otherwise transferred to any party without the prior written consent of the Agent, and any such attempted transfer shall be void; provided, that, the Seller may pledge or otherwise grant a security interest in this Subordinated Note to any lender or other creditor of the Seller.
FERRELLGAS RECEIVABLES, LLC
By:_____________________________
Name: | Kevin T. Kelly | |
Title: | Senior Vice President and Chief Financial Officer |
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SCHEDULETOSUBORDINATEDNOTE
SUBORDINATEDLOANSANDPAYMENTSOFPRINCIPAL
DATE
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AMOUNTOFPRINCIPALPAID
| UNPAIDPRINCIPALBALANCE |
NOTATIONMADEBY
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Schedule A
DOCUMENTS TO BE DELIVERED TO BUYER
ON OR PRIOR TO THE PURCHASE
1. | Executed copies of the Amended and Restated Receivable Interest Sale Agreement, duly executed by the parties thereto. |
2. | Certificate of Originator’s[Assistant] Secretary certifying the incumbency and signatures of its officers who are authorized to execute the Transaction Documents to which it is a party and attaching each of the following: |
(a) Copy of the Resolutions of the Board of Directors of the General Partner certified by its Secretary, authorizing Originator’s execution, delivery and performance of the Receivable Interest Sale Agreement and the other documents to be delivered by it thereunder.
(b) Certificate of Limited Partnership of Originator certified by the Secretary of State of Delaware on or within thirty (30) days prior to the initial Purchase (as defined in the Receivable Interest Sale Agreement).
(c) Good Standing Certificates for Originator and the General Partner issued by the Secretaries of State of its state of organization and each jurisdiction where it has material operations, each of which is listed below:
| i. | Delaware | |
| ii. | Missouri | |
| iii. | Kansas | |
| (d) | A copy of Originator’s Partnership Agreement. | |
3. | Pre-filing state and federal tax lien, judgment lien and UCC lien searches against Originator from the following jurisdictions: |
| a. | Delaware SOS | |
| b. | Missouri SOS | |
| c. | Clay County, MO | |
| | | | | | | | | | | |
4. | Evidence that financing statements have been filed in all jurisdictions as may be necessary or, in the opinion of Buyer (or its assigns), desirable, under the UCC of all appropriate jurisdictions or any comparable law in order to perfect the ownership interests contemplated by the Receivable Interest Sale Agreement. |
5. | Time stamped receipt copies of proper UCC termination statements, if any, necessary to release all security interests and other rights of any Person in the Pool Receivables, Contracts or Related Security previously granted by Originator. |
6. | A favorable opinion of legal counsel for Originator reasonably acceptable to Buyer (or its assigns) which addresses the following matters and such other matters as Buyer (or its assigns) may reasonably request: |
--Each of Originator and its General Partner is duly organized, validly existing, and in good standing under the laws of its state of organization.
--Each of Originator and its General Partner has all requisite authority to conduct its business in each jurisdiction where failure to be so qualified would have a material adverse effect on its business.
--The execution and delivery by Originator of the Amended and Restated Receivable Interest Sale Agreement and each other Transaction Document to which it is a party and its performance of its obligations thereunder have been duly authorized by all necessary action and proceedings on the part of Originator and the General Partner and will not:
(a) require any action by or in respect of, or filing with, any governmental body, agency or official (other than the filing of UCC financing statements);
(b) contravene, or constitute a default under, any provision of applicable law or regulation or of its Organization Documents or of any material agreement, judgment, injunction, order, decree or other instrument binding upon Originator, the MLP or the General Partner [to include the Credit Agreement, both Note Purchase Agreements and the Indenture]; or
(c) result in the creation or imposition of any Adverse Claim on assets of the General Partner, Originator or any of their respective Subsidiaries (except as contemplated by the Receivable Interest Sale Agreement and the Purchase Agreement).
--The Amended and Restated Receivable Interest Sale Agreement and each other Transaction Document to which it is a party has been duly executed and delivered by Originator and constitutes the legal, valid, and binding obligation of Originator enforceable in accordance with its terms, except to the extent the enforcement thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject also to the availability of equitable remedies if equitable remedies are sought.
--The provisions of the Amended and Restated Receivable Interest Sale Agreement are effective to create a valid security interest in favor of Buyer in all Pool Receivables and upon the filing of financing statements, Buyer shall acquire a first priority, perfected security interest in such Receivables.
--To the best of the opinion giver’s knowledge, there is no action, suit or other proceeding against Originator, General Partner or any Affiliate of Originator or General Partner, which would materially adversely affect the business or financial condition of Originator and its Affiliates taken as a whole or which would materially adversely affect the ability of Originator to perform its obligations under the Transaction Documents to which it is a party.
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7. | A“true sale/true contribution” opinion and“substantive consolidation” opinion of counsel for Originator with respect to the transactions contemplated by the Amended and Restated Receivable Interest Sale Agreement. |
8. | A Certificate of a Responsible Officer of Originator certifying that no Termination Event or Potential Termination Event exists as of the date of the Purchase or will result therefrom, and that each of the representations and warranties made by Originator in any of the Transaction Documents to which it is a party is true and correct as of such date. |
9. | Executed copies of (i) all consents from and authorizations by any Persons and (ii) all waivers and amendments to existing credit facilities, that are necessary in connection with the Amended and Restated Receivable Interest Sale Agreement. |
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