Exhibit 2.1
CONTRIBUTION AGREEMENT
This Contribution Agreement ("Agreement") is made and entered into as of
the 8th day of February, 2004, by and among FCI Trading Corp., a Delaware
corporation ("Parent"), Ferrellgas, Inc., a Delaware corporation (the "General
Partner "), Ferrellgas Partners, L.P., a Delaware limited partnership (the
"Partnership") and Ferrellgas, L.P., a Delaware limited partnership (the
"Operating Partnership").
WHEREAS, the General Partner is the general partner of both the Partnership
and the Operating Partnership;
WHEREAS, Ferrell Companies, Inc., a Kansas corporation ("Ultimate Parent"),
is the sole stockholder of Parent and Parent is the sole member of Diesel
Acquisition LLC ("Merger Sub"); and
WHEREAS, Parent, Merger Sub, Ultimate Parent and Blue Rhino Corporation, a
Delaware corporation (the "Company") have entered into an Agreement and Plan of
Merger dated as of the date hereof (the "Plan"), pursuant to which Merger Sub
will merge with and into the Company with the Company being the surviving entity
(the "Surviving Entity") in the merger (the "Merger"), thereby becoming a direct
wholly-owned subsidiary of Parent;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, mutual covenants and agreements herein contained
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Deposit of Funds. Prior to the Closing, as defined in the Plan, the
Operating Partnership shall deliver an amount equal to the aggregate Merger
Consideration payable to all holders of Company Common Stock, as both such terms
are defined in the Plan, as the Parent's designee for the delivery of such funds
as described in the Escrow Agreement, as such term is defined in the Plan.
2. Post-Merger Transactions. After the consummation of the Merger pursuant
to the terms of the Plan, the parties hereto shall take the following actions:
(a) Parent shall have converted the Company into a Delaware limited
liability company (the "Converted Entity") and shall contribute
(i) a portion of the membership interests in the Converted Entity
("Parent Contribution"), which together with any portion of the
membership interests of the Converted Entity that were distributed to
the Ultimate Parent, contributed to the General Partner and are to be
contributed by the General Partner to the Partnership or the Operating
Partnership to maintain the General Partner's interest in those
partnerships as set forth in those partnerships respective partnership
agreements, shall constitute all of the membership interests of the
Converted Entity; and
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(ii) Parent's obligation to pay the Merger Consideration as set
forth in Section 2.1(b) of the Plan and Parent's obligations under the
paying agent agreement, as described in the Plan (collectively, the
"Assumed Debt"), which obligations are hereby assumed in full by the
Partnership;
(b) the Partnership and the General Partner shall contribute all of
the membership interests of the Converted Entity to the Operating
Partnership, in accordance with the terms of the Operating Partnership's
partnership agreement, and the Partnership shall contribute to the
Operating Partnership the Assumed Debt, which obligations in respect of the
Assumed Debt are hereby assumed in full by the Operating Partnership; and
(c) the Operating Partnership shall cause the Converted Entity to be
merged with and into the Operating Partnership by filing a Certificate of
Ownership and Merger with the Secretary of State of Delaware, which
certificate shall be filed with the Secretary of State of the State of
Delaware immediately after the Effective Time (as defined in the Plan) but
shall not be effective, pursuant to its terms and in accordance with
Delaware law, until no later than two business days after the Effective
Time.
3. Consideration for Parent Contribution. In consideration for the Parent
Contribution, the Partnership shall issue to Parent, on the date of the Parent
Contribution, common units representing limited partner interests in the
Partnership ("Common Units") with a value equal to $8,704,815 less the value of
the contribution by the General Partner to the Partnership and the Operating
Partnership in connection with the issuance of Common Units pursuant to an
anticipated public offering of Common Units and private offerings of Common
Units to be consummated prior to or simultaneously with the consummation of the
transactions contemplated under this Agreement, to be determined by the General
Partner. The number of Common Units to be issued to Parent based on the prior
sentence shall be determined by dividing such value by the average of the
closing sales prices of a Common Unit as reported in the Wall Street Journal
(Corporate Transactions section) for the twenty (20) consecutive trading days
immediately prior to the date of issuance of such Common Units.
4. Purchase Price Allocation. The parties acknowledge that the
consideration to be received by the Partnership and the Operating Partnership
for the transactions contemplated hereby shall be allocated, as of the Closing
Date, among the assets and properties of the Converted Entity using the residual
method as specified under Section 1060 of the Code.
5. Representations and Warranties. Each of the parties hereto represents to
the other parties hereto that as of the date hereof and as of the date of the
issuance of the Common Units pursuant hereto:
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(a) That party is duly incorporated or formed, validly existing and in
good standing under the laws of the State of Delaware. That party has full
power and authority to own and hold the properties and assets it now owns
and holds and to carry on its businesses as and where such properties are
now owned or held and such business is now conducted. That party is duly
licensed or qualified to do business as a foreign entity, as applicable,
and are in good standing in each jurisdiction in which the character of the
properties and assets now owned or held by it or the nature of the business
now conducted by it requires it to be so licensed or qualified and where
the failure so to qualify would not reasonably be expected to have,
individually or in the aggregate, an adverse change in or effect on (i) the
business, results of operations or condition (financial or other) of such
party, or (ii) the ability of such party to consummate any of the
transactions contemplated hereby ("Material Adverse Effect"); provided,
however, that a Material Adverse Effect shall not be deemed to include any
effect of (x) actions or omissions of any party hereto taken with the prior
written consent of the other in contemplation of the transactions
contemplated hereby, (y) the direct effects of compliance with this
Agreement on the operating performance of such party, including expenses
incurred by such party in consummating the transactions contemplated by
this Agreement or relating to any litigation arising as a result of this
Agreement or the transactions contemplated hereby, or (z) any change in
general economic conditions, except to the extent that such change affects
such party in a manner materially different from the manner in which it
affects other similar businesses.
(b) This Agreement has been duly authorized, executed and delivered by
that party and is the legal, valid and binding obligation of that party,
enforceable against it in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally. The governing body of that party has approved this
Agreement and the transactions contemplated hereby. No vote of any other
equity holders of that party is required for approval of this Agreement.
(c) Except for any filings required to be made in connection with the
Plan or as set forth herein, the execution and delivery of this Agreement
do not, and the fulfillment and compliance with the terms and conditions
hereof and the consummation of the transactions contemplated hereby will
not (a) conflict with any of, or require the consent of any person or
entity under, the terms, conditions or provisions of the charter documents
or bylaws or equivalent governing instruments of that party, (b) violate
any provision of, or require any consent, authorization or approval under,
any law or administrative regulation or any judicial, administrative or
arbitration order, award, judgment, writ, injunction or decree applicable
to such party, (c) conflict with, result in a breach of, constitute a
default under (whether with notice or the lapse of time or both) or
accelerate or permit the acceleration of the performance required by, or
require any consent, authorization or approval under, any Contract, as
defined in the Plan, to which that party is a party or by which that party
is bound or to which any asset of that party is subject, or (d) result in
the creation of any lien, charge or encumbrance on the assets or properties
of that party under any such Contract.
(d) That party is not in default under, and no condition exists that
with notice or lapse of time or both would constitute a default under, (i)
any mortgage, loan agreement, indenture, evidence of indebtedness or other
instrument evidencing borrowed money to which it or any of its properties
are bound, (ii) any judgment, order or injunction of any court, arbitrator
or governmental agency, or (iii) any other Contract, except for such
defaults and conditions that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
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(e) No party has entered (directly or indirectly) into any agreement
with any person, firm or corporation that would obligate any party to pay
any commission, brokerage or "finder's fee" in connection with the
transactions contemplated herein.
6. Representations and Warranties of the Partnership. The Partnership
represents to Parent that as of the date hereof and the date of issuance of the
Common Units pursuant hereto:
(a) The Common Units to be issued hereunder and sold to Parent are
duly authorized and, when issued and delivered against payment therefor as
provided herein, will be validly issued, fully paid and non-assessable
(except as non-assessability may be affected by certain provisions of the
Delaware Revised Uniform Limited Partnership Act).
(b) Since July 31, 2000, (i) the Partnership has made all filings
required to be made by the Securities Act and the Securities Exchange Act
of 1934, as amended ("Exchange Act"); (ii) all filings by the Partnership
with the Securities and Exchange Commission (the "SEC"), at the time filed
(in the case of documents filed pursuant to the Exchange Act) or when
declared effective by the Securities and Exchange Commission (the "SEC")
(in the case of registration statements filed under the Securities Act)
complied in all material respects with the applicable requirements of the
Securities Act and the Exchange Act; (iii) no such filing, at the time
described above, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein to make
the statements contained therein, in the light of the circumstances under
which they were made, not misleading; and (iv) all financial statements
contained or incorporated by reference therein complied as to form when
filed or, if applicable, as restated, in all material respects with the
rules and regulations of the SEC with respect thereto, were prepared in
accordance with United States generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
may be indicated in the notes thereto), and fairly presented in all
material respects the financial condition and results of operations of the
Partnership and its subsidiaries, as applicable, at and as of the
respective dates thereof and the consolidated results of its operations and
changes in cash flows for the periods indicated (subject in the case of
unaudited statements, to normal year-end audit adjustments).
7. Securities Representations and Warranties of Parent. Parent hereby
represents and warrants to the Partnership and its representatives as follows as
of the date hereof and as of the date of issuance of the Common Units pursuant
hereto:
(a) Parent is an "accredited investor" (as such term is defined in
Rule 501 of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act")).
(b) Parent is not an "investment company", as such term is defined in
ss.3(a) of the Investment Company Act of 1940, as amended, or an entity
which would be an "investment company" but for the exception provided for
in ss.3(c)(1) or ss.3(c)(7) of such act.
(c) The purchase of the Common Units by Parent is for Parent's own
account, is for investment purposes only, and is not being made with a view
to, nor for offer or sale in connection with, the distribution of such
Common Units and Parent is not participating, does not have a participation
in and does not contemplate any participation in, such a distribution or
the underwriting of any such distribution.
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(d) Parent has no present intention of selling or otherwise disposing
of the Common Units purchased hereunder in violation of (i) this Agreement,
(ii) the Partnership Agreement, or (iii) the Securities Act or any other
applicable Federal or state securities laws;
(e) Parent is aware that neither the Securities and Exchange
Commission (the "SEC") nor other Federal or state securities commission or
governmental authority has approved or disapproved of the Common Units,
made any finding or determination as to the fairness of an investment in
the Partnership, nor made any recommendation or endorsement with respect
thereto, and any representation to the contrary is a criminal offense.
(f) Parent confirms that it understands and has fully considered and
reviewed for purposes of the purchase of Common Units hereunder all
documents filed with the SEC by the Partnership and its affiliates, all of
which are publicly available via EDGAR (all such documents are collectively
referred to herein as the "Public Filings").
(g) Parent is able to bear the economic risk of the purchase of Common
Units hereunder and is able to bear its investment in the Partnership for
an indefinite period of time.
(h) Parent understands that the Common Units purchased hereunder have
not been registered under the Securities Act or the securities laws of any
state and, therefore, cannot be sold, transferred or otherwise disposed of
unless;
(i) such Common Units are subsequently registered under the
Securities Act and any applicable securities laws of any state or
exemptions from registration thereunder are available; and
(ii) such sale, transfer or disposal is in compliance with the
terms of the Partnership Agreement and this Agreement.
(i) Parent further understands that only the Partnership can take
action to register the Common Units being sold hereunder and that the
Partnership is under no obligation, and has no present plans, to do so.
(j) Parent understands that the Common Units purchased hereunder may
be required to be held for an indeterminate period of time and that the
sale or other transfer of such Common Units by Parent in reliance on Rule
144 under the Securities Act, if available to Parent, may be made only in
limited amounts in accordance with the terms and conditions of Rule 144.
(k) In addition to the other provisions of this Agreement and the
Partnership Agreement, Parent agrees that in no event will Parent make a
sale, transfer or other disposition of any of the Common Units purchased
hereunder unless and until:
(i) Parent has notified the Partnership of its proposed
disposition and has furnished the Partnership with a statement of the
circumstances surrounding the proposed disposition; and
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(ii) Parent has furnished the Partnership with an opinion of
counsel satisfactory to the Partnership in its sole discretion to the
effect (A) that such disposition will not require registration or
qualification of such Common Units under federal or state securities
laws or (B) that appropriate action necessary for compliance with such
federal or state securities laws has been taken;
provided, however, the Partnership may expressly waive the requirements
under clauses (i) and (ii) above.
(l) All information that Parent has supplied to the Partnership or its
respective representatives or agents, including the information included in
this Agreement, is true and complete as of the date hereof, and unless
otherwise made known to the Partnership or its representatives in writing,
true and complete as of the date of issuance of the Common Units, with the
same force and effect as if executed, made, or supplied, at such date.
(m) Parent confirms that, in making the decision to purchase Common
Units hereunder, Parent has relied solely upon independent investigations
made by Parent or representatives of Parent, including its own professional
tax and other advisers and that Parent and such representatives have had
access to and an opportunity to inspect all relevant information relating
to the Partnership (including the Public Filings) sufficient to enable the
Parent to evaluate the merits and risks of its purchase of Common Units
hereunder.
(n) Parent has had the opportunity to ask questions of the
representatives of the Partnership, including representatives of its
general partner, and has received satisfactory answers respecting, and has
obtained such additional information as the Parent has desired regarding
the business, financial condition and other affairs of the Partnership.
(o) Parent is not acquiring Common Units hereunder with a view to
realizing any benefits under the United States federal income tax laws with
respect to the Parent's share of any losses or expenses of the Partnership,
and no representations have been made to the Parent that any such benefits
will be available as result of the Parent's acquisition, ownership or
disposition of such Common Units.
(p) Parent has not borrowed, and shall not borrow, as the case may be,
any portion of the funds necessary to purchase Common Units hereunder,
either directly or indirectly, from the Partnership, its general partner or
any affiliate of the foregoing.
(q) For United States tax purposes:
(i) Parent certifies that its name, taxpayer identification or
social security number and address set forth on Schedule I are
correct; and
(ii) Parent certifies that it is not a non-resident alien
individual, foreign corporation, foreign partnership, foreign trust or
foreign estate (as defined in the Internal Revenue Code of 1986, as
amended) and that it will notify the Partnership within sixty (60)
days of a change to foreign status and its new country of residence.
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(r) Parent agrees to execute properly and provide to the Partnership
in a timely manner any tax documentation that may reasonably be required by
the Partnership in connection with its ownership on Common Units.
8. Taxes. The General Partner shall cause the Partnership and the Operating
Partnership to elect the remedial allocation method under Treas. Reg. ss.
1.704-3(d), if available, with respect to all of the assets and properties of
the Converted Entity, except the parties agree that the goodwill and going
concern value, as such terms are defined for purposes of Section 197(d)(1) of
the Code, shall not be amortized for tax purposes by the Partnership and the
Operating Partnership.
9. Legend on Certificates. All certificates representing the Common Units
to be issued and sold by the Partnership hereunder shall bear a restrictive
legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED, UNLESS SOLD OR
OTHERWISE TRANSFERRED IN COMPLIANCE WITH AGREEMENT UNDER WHICH THEY WERE
PURCHASED, THE LIMITED Partnership AGREEMENT OF FERRELLGAS PARTNERS, L.P.
AS IN EFFECT AT THE TIME OF SALE OR TRANSFER AND (I) SUCH SECURITIES HAVE
BEEN REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS OR
(II) AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND A LEGAL OPINION
STATING THAT SUCH EXEMPTION IS AVAILABLE HAS BEEN SUBMITTED TO FERRELLGAS
PARTNERS, L.P. BY COUNSEL TO THE HOLDER OF THIS CERTIFICATE, IN FORM AND
SUBSTANCE ACCEPTABLE TO FERRELLGAS PARTNERS, L.P. IN ITS SOLE DISCRETION.
10. No Duty to Transfer in Violation Hereunder. The Partnership shall not
be required:
(a) to transfer on its books any of the Common Units issued hereunder
that have been sold or transferred in violation of any of the provisions
set forth herein, the Partnership Agreement or the Securities Act; or
(b) to treat as the owner of such Common Units, to accord the right to
vote as such owner or to pay distributions to, any transferee to whom such
Common Units have been so sold or transferred in violation of any of the
provisions set forth herein, the Partnership Agreement or the Securities
Act.
11. Conditions to Obligation of Each Party. The respective obligations of
each party to effect transactions contemplated by this Agreement shall be
subject to the occurrence of the Closing under the Plan.
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12. Termination. This Agreement shall terminate and be of no further force
or effect effective as of the termination of the Plan in accordance with its
terms.
13. Indemnity.
(a) The Parent hereby indemnifies and holds the General Partner
harmless from and against any and all damages (including exemplary damages
and penalties), losses, deficiencies, costs, expenses, obligations, fines,
expenditures, claims and liabilities, including reasonable counsel fees and
reasonable expenses of investigation, defending and prosecuting alleged or
threatened claims from any Governmental Authority, as defined in the Plan,
or other litigation (collectively, the "Damages") suffered by the General
Partner as a result of, caused by, arising out of, or in any way relating
to the Partnership's assumption of the Assumed Debt.
(b) The Partnership hereby indemnifies and holds the General Partner
harmless from and against any and all Damages suffered by the General
Partner as a result of, caused by, arising out of, or in any way relating
to the Operating Partnership's assumption of the Assumed Debt.
(c) The General Partner agrees that promptly upon its discovery of
facts giving rise to a claim for indemnity under the provisions of this
Agreement, including receipt by it of notice of any demand, assertion,
claim, action or proceeding, judicial or otherwise, by any third party
(such third party actions being collectively referred to herein as the
"Indemnity Claim"), with respect to any matter as to which it claims to be
entitled to indemnity under the provisions of this Agreement, it will give
prompt notice thereof in writing to the indemnifying party, together with a
statement of such information respecting any of the foregoing as it shall
have. Such notice shall include a formal demand for indemnification under
this Agreement. The indemnifying party shall not be obligated to indemnify
the General Partner with respect to any Indemnity Claim if the General
Partner knowingly failed to notify the indemnifying party thereof in
accordance with the provisions of this Agreement in sufficient time to
permit the indemnifying party or its counsel to defend against such matter
and to make a timely response thereto including, without limitation, any
responsive motion or answer to a complaint, petition, notice or other
legal, equitable or administrative process relating to the Indemnity Claim,
only insofar as such knowing failure to notify the indemnifying party has
actually resulted in prejudice or damage to the indemnifying party.
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(d) The indemnifying party shall be entitled at its cost and expense
to contest and defend by all appropriate legal proceedings any Indemnity
Claim with respect to which it is called upon to indemnify the General
Partner under the provisions of this Agreement; provided, that notice of
the intention to so contest shall be delivered by the indemnifying party to
the General Partner within 20 days from the date of receipt by the
indemnifying party of notice by the General Partner of the assertion of the
Indemnity Claim. Any such contest may be conducted in the name and on
behalf of the indemnifying party or the General Partner as may be
appropriate. Such contest shall be conducted by reputable counsel employed
by the indemnifying party, but the General Partner shall have the right but
not the obligation to participate in such proceedings and to be represented
by counsel of its own choosing at its sole cost and expense. The
indemnifying party shall have full authority to determine all action to be
taken with respect thereto; provided, however, that the indemnifying party
will not have the authority to subject the General Partner to any
obligation whatsoever, other than the performance of purely ministerial
tasks or obligations not involving material expense. If the indemnifying
party does not elect to contest any such Indemnity Claim, the indemnifying
party shall be bound by the result obtained with respect thereto by the
General Partner. At any time after the commencement of the defense of any
Indemnity Claim, the indemnifying party may request the General Partner to
agree in writing to the abandonment of such contest or to the payment or
compromise by the General Partner of the asserted Indemnity Claim,
whereupon such action shall be taken unless the General Partner determines
that the contest should be continued, and so notifies the indemnifying
party in writing within 15 days of such request from the indemnifying
party. If the General Partner determines that the contest should be
continued, the indemnifying party shall be liable hereunder only to the
extent of the amount that the other party to the contested Indemnity Claim
had agreed unconditionally to accept in payment or compromise as of the
time the indemnifying party made its request therefor to the General
Partner.
(e) If requested by the indemnifying party, the General Partner agrees
to cooperate with the indemnifying party and its counsel in contesting any
Indemnity Claim that the indemnifying party elects to contest or, if
appropriate, in making any counterclaim against the person asserting the
Indemnity Claim, or any cross-complaint against any person, and the
indemnifying party will reimburse the General Partner for any expenses
incurred by it in so cooperating. At no cost or expense to the General
Partner, the indemnifying party shall cooperate with the General Partner
and its counsel in contesting any Indemnity Claim.
(f) The General Partner agrees to afford the indemnifying party and
its counsel the opportunity to be present at, and to participate in,
conferences with all persons, including Governmental Authorities, asserting
any Indemnity Claim against the General Partner or conferences with
representatives of or counsel for such persons.
(g) The indemnifying party shall pay to the General Partner in
immediately available funds any amounts to which the General Partner may
become entitled by reason of the provisions of this Agreement, such payment
to be made within five days after any such amounts are finally determined
either by mutual agreement of the parties hereto or pursuant to the final
unappealable judgment of a court of competent jurisdiction. In calculating
any amount to be paid by an indemnifying party by reason of the provisions
of this Agreement, the amount shall be reduced by all tax benefits and
other reimbursements credited to or received by the other party related to
the Damages.
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14. Further Action; Reasonable Best Efforts. Upon the terms and subject to
the conditions hereof, each of the parties hereto shall use its reasonable best
efforts to take, or cause to be taken, all appropriate action, and to do or
cause to be done, all things necessary, proper or advisable as required
hereunder and under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement.
15. Notices. Any notice, request, instruction, correspondence or other
document to be given hereunder by either party to the other (herein collectively
called "Notice") shall be in writing and delivered in person or by courier
service requiring acknowledgment of receipt of delivery or mailed by certified
mail, postage prepaid and return receipt requested, or by telecopier, as
follows:
If to Ultimate Parent or Parent:
Ferrellgas Companies Inc.
One Liberty Plaza
Liberty, Missouri 64068
Attention: Kenneth A. Heinz,
Senior Vice President, Corporate Development
Telecopy: (816) 792-6979
If to the General Partner, the Partnership or the
Operating Partnership:
Ferrellgas, Inc.
One Liberty Plaza
Liberty, Missouri 64068
Attention: Kevin T. Kelly
Chief Financial Officer
Telecopy: (816) 792-6979
Notice given by personal delivery, courier service or mail shall be effective
upon actual receipt. Notice given by telecopier shall be confirmed by
appropriate answer back and shall be effective upon actual receipt if received
during the recipient's normal business hours, or at the beginning of the
recipient's next business day after receipt if not received during the
recipient's normal business hours. Any party may change any address to which
Notice is to be given to it by giving Notice as provided above of such change of
address.
16. Governing Law. The provisions of this Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Delaware
and the federal laws of the United States.
17. Entire Agreement; Amendments and Waivers. This Agreement constitutes
the entire agreement between the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements between the parties in
connection with the subject matter hereof except as set forth specifically
herein or contemplated hereby. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. The failure of a party to exercise any right or remedy shall not be
deemed or constitute a waiver of such right or remedy in the future. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (regardless of whether similar), nor shall
any such waiver constitute a continuing waiver unless otherwise expressly
provided. Each party to this Agreement agrees that (i) no other party to this
Agreement (including its agents and representatives) has made any
representation, warranty, covenant or agreement to or with such party relating
to the transactions contemplated hereby, other than those expressly set forth in
this Agreement and the agreements referenced herein, and (ii) such party has not
relied upon any representation, warranty, covenant or agreement relating to the
transactions contemplated hereby, other than those referred to in clause (i)
above.
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18. Binding Effect and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns; but neither this Agreement nor any of the rights,
benefits or obligations hereunder shall be assigned, by operation of law or
otherwise, by any party hereto without the prior written consent of the other
parties hereto. Nothing in this Agreement, express or implied, is intended to
confer upon any person or entity other than the parties hereto and their
respective permitted successors and assigns, any rights, benefits or obligations
hereunder.
19. Severability. If any provision of the Agreement is rendered or declared
illegal or unenforceable by reason of any existing or subsequently enacted
legislation or by decree of a court of last resort, the parties hereto shall
promptly meet and negotiate substitute provisions for those rendered or declared
illegal or unenforceable, but all of the remaining provisions of this Agreement
shall remain in full force and effect.
20. Headings. The headings of the sections herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
21. Execution. This Agreement may be executed in multiple counterparts each
of which shall be deemed an original and all of which shall constitute one
instrument.
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EXECUTED as of the date first set forth above.
FERRELLGAS TRADING CORP.
By: /s/ Kenneth A. Heinz
----------------------------------------------------
Name: Kenneth A. Heinz
Title: Senior Vice President, Corporate Development
FERRELLGAS PARTNERS, L.P.
By: Ferrellgas, Inc., its general partner
By: /s/ Kenneth A. Heinz
----------------------------------------------------
Name: Kenneth A. Heinz
Title: Senior Vice President, Corporate Development
FERRELLGAS, L.P.
By: Ferrellgas, Inc., its general partner
By: /s/ Kenneth A. Heinz
----------------------------------------------------
Name: Kenneth A. Heinz
Title: Senior Vice President, Corporate Development
FERRELLGAS, INC.
By: /s/ Kenneth A. Heinz
----------------------------------------------------
Name: Kenneth A. Heinz
Title: Senior Vice President, Corporate Development
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