Exhibit 4.3







Exhibit 4.3



Execution Copy




 





FERRELLGAS ESCROW LLC

FERRELLGAS FINANCE ESCROW CORPORATION




63/4% SENIOR NOTES DUE 2014




 






INDENTURE




Dated as of April 20, 2004




 






U.S. Bank National Association




 






 






 


 









 







CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	11.03
	(c)
	 	11.03
	313(a)
	 	7.06
	(b)(1)
	 	N.A.
	(b)(2)
	 	7.06; 7.07
	(c)
	 	7.06; 11.02
	(d)
	 	7.06
	314(a)
	 	4.03;11.02; 11.05
	(b)
	 	N.A.
	(c)(1)
	 	11.04
	(c)(2)
	 	11.04
	(c)(3)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	11.05
	(f)
	 	N.A.
	315(a)
	 	7.01
	(b)
	 	7.05, 11.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a) (last sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	(c)
	 	2.12
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	11.01
	(b)
	 	N.A.
	(c)
	 	11.01








	 	 	 
	N.A.	 	means not applicable.

	 
	*	 	This Cross Reference Table is not part of the Indenture.






 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1.

	DEFINITIONS AND INCORPORATION
BY REFERENCE

	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	2	 
	Section 1.02 Other Definitions
	 	 	24	 
	Section 1.03 Incorporation by Reference of Trust Indenture Act
	 	 	24	 
	Section 1.04 Rules of Construction
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 2.

	THE NOTES

	 
	 	 	 	 
	Section 2.01 Form and Dating
	 	 	25	 
	Section 2.02 Execution and Authentication
	 	 	25	 
	Section 2.03 Registrar and Paying Agent
	 	 	26	 
	Section 2.04 Paying Agent to Hold Money in Trust
	 	 	26	 
	Section 2.05 Holder Lists
	 	 	26	 
	Section 2.06 Transfer and Exchange
	 	 	27	 
	Section 2.07 Replacement Notes
	 	 	38	 
	Section 2.08 Outstanding Notes
	 	 	39	 
	Section 2.09 Treasury Notes
	 	 	39	 
	Section 2.10 Temporary Notes
	 	 	39	 
	Section 2.11 Cancellation
	 	 	39	 
	Section 2.12 Defaulted Interest
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 3.

	REDEMPTION AND PREPAYMENT

	 
	 	 	 	 
	Section 3.01 Notices to Trustee
	 	 	40	 
	Section 3.02 Selection of Notes to Be Redeemed or Purchased
	 	 	40	 
	Section 3.03 Notice of Redemption
	 	 	41	 
	Section 3.04 Effect of Notice of Redemption
	 	 	41	 
	Section 3.05 Deposit of Redemption or Purchase Price
	 	 	41	 
	Section 3.06 Notes Redeemed or Purchased in Part
	 	 	42	 
	Section 3.07 Optional Redemption
	 	 	42	 
	Section 3.08 Mandatory Redemption
	 	 	43	 
	Section 3.09 Special Mandatory Redemption
	 	 	43	 
	Section 3.10 Offer to Purchase by Application of Excess Proceeds
	 	 	43	 
	 
	 	 	 	 
	ARTICLE 4.

	COVENANTS

	 
	 	 	 	 
	Section 4.01 Payment of Notes
	 	 	45	 
	Section 4.02 Maintenance of Office or Agency
	 	 	45	 
	Section 4.03 Reports
	 	 	46	 
	Section 4.04 Compliance Certificate
	 	 	46	 
	Section 4.05 Taxes
	 	 	47	 
	Section 4.06 Stay, Extension and Usury Laws
	 	 	47	 
	Section 4.07 Restricted Payments
	 	 	47	 
	Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries
	 	 	49	 
	Section 4.09 Incurrence of Indebtedness
	 	 	50	 





 


i









 







	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 4.10 Asset Sales
	 	 	51	 
	Section 4.11 Transactions with Affiliates
	 	 	53	 
	Section 4.12 Liens
	 	 	54	 
	Section 4.13 Corporate Existence
	 	 	54	 
	Section 4.14 Offer to Repurchase Upon Change of Control
	 	 	54	 
	Section 4.15 Limitation on Sale and Leaseback Transactions
	 	 	56	 
	Section 4.16 Limitation on Finance Corp. and Escrow Finance Corp.
	 	 	56	 
	Section 4.17 Limitation on Other Activities
	 	 	56	 
	 
	 	 	 	 
	ARTICLE 5.

	SUCCESSORS

	 
	 	 	 	 
	Section 5.01 Merger, Consolidation, or Sale of Assets
	 	 	56	 
	Section 5.02 Successor Corporation Substituted
	 	 	57	 
	 
	 	 	 	 
	ARTICLE 6.

	DEFAULTS AND REMEDIES

	 
	 	 	 	 
	Section 6.01 Events of Default
	 	 	57	 
	Section 6.02 Acceleration
	 	 	59	 
	Section 6.03 Other Remedies
	 	 	59	 
	Section 6.04 Waiver of Past Defaults
	 	 	59	 
	Section 6.05 Control by Majority
	 	 	59	 
	Section 6.06 Limitation on Suits
	 	 	60	 
	Section 6.07 Rights of Holders of Notes to Receive Payment
	 	 	60	 
	Section 6.08 Collection Suit by Trustee
	 	 	60	 
	Section 6.09 Trustee May File Proofs of Claim
	 	 	61	 
	Section 6.10 Priorities
	 	 	61	 
	Section 6.11 Undertaking for Costs
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 7.

	TRUSTEE

	 
	 	 	 	 
	Section 7.01 Duties of Trustee
	 	 	61	 
	Section 7.02 Rights of Trustee
	 	 	62	 
	Section 7.03 Individual Rights of Trustee
	 	 	63	 
	Section 7.04 Trustee’s Disclaimer
	 	 	63	 
	Section 7.05 Notice of Defaults
	 	 	64	 
	Section 7.06 Reports by Trustee to Holders of the Notes
	 	 	64	 
	Section 7.07 Compensation and Indemnity
	 	 	64	 
	Section 7.08 Replacement of Trustee
	 	 	65	 
	Section 7.09 Successor Trustee by Merger, etc.
	 	 	66	 
	Section 7.10 Eligibility; Disqualification
	 	 	66	 
	Section 7.11 Preferential Collection of Claims Against the Issuers
	 	 	66	 
	 
	 	 	 	 
	ARTICLE 8.

	LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 
	Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	66	 
	Section 8.02 Legal Defeasance and Discharge
	 	 	66	 
	Section 8.03 Covenant Defeasance
	 	 	67	 
	Section 8.04 Conditions to Legal or Covenant Defeasance
	 	 	67	 
	Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions
	 	 	68	 
	Section 8.06 Repayment to the Issuers
	 	 	69	 
	Section 8.07 Reinstatement
	 	 	69	 





 


ii









 







	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 9.

	AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 
	Section 9.01 Without Consent of Holders of Notes
	 	 	69	 
	Section 9.02 With Consent of Holders of Notes
	 	 	70	 
	Section 9.03 Compliance with Trust Indenture Act
	 	 	71	 
	Section 9.04 Revocation and Effect of Consents
	 	 	71	 
	Section 9.05 Notation on or Exchange of Notes
	 	 	71	 
	Section 9.06 Trustee to Sign Amendments, etc.
	 	 	72	 
	 
	 	 	 	 
	ARTICLE 10.

	SATISFACTION AND DISCHARGE

	 
	 	 	 	 
	Section 10.01 Satisfaction and Discharge
	 	 	72	 
	Section 10.02 Application of Trust Money
	 	 	73	 
	 
	 	 	 	 
	ARTICLE 11.

	MISCELLANEOUS

	 
	 	 	 	 
	Section 11.01 Trust Indenture Act Controls
	 	 	73	 
	Section 11.02 Notices
	 	 	73	 
	Section 11.03 Communication by Holders of Notes with Other Holders of Notes
	 	 	74	 
	Section 11.04 Certificate and Opinion as to Conditions Precedent
	 	 	74	 
	Section 11.05 Statements Required in Certificate or Opinion
	 	 	75	 
	Section 11.06 Rules by Trustee and Agents
	 	 	75	 
	Section 11.07 Non-Recourse
	 	 	75	 
	Section 11.08 No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	75	 
	Section 11.09 Governing Law
	 	 	75	 
	Section 11.10 Successors
	 	 	76	 
	Section 11.11 Severability
	 	 	76	 
	Section 11.12 Counterpart Originals
	 	 	76	 
	Section 11.13 Table of Contents, Headings, etc.
	 	 	76	 






EXHIBIT




	 	 	 
	Exhibit A1

	 	FORM OF NOTE
	Exhibit A2

	 	FORM OF REGULATION S TEMPORARY GLOBAL NOTE
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D

	 	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR





 


iii









 





This INDENTURE dated as of April 20, 2004 among Ferrellgas Escrow LLC, a Delaware limited
liability company (“Escrow LLC”), Ferrellgas Finance Escrow Corporation, a Delaware corporation
(“Escrow Finance Corp.”), U.S. Bank National Association, as trustee (the “Trustee”), and on and
after the Merger Date (as defined below), Ferrellgas, L.P., a Delaware limited partnership
(“Ferrellgas, L.P.”), and Ferrellgas Finance Corp., a Delaware corporation (“Finance Corp.”).
Unless specifically indicated otherwise, the term “Issuers” means (i) Escrow LLC and Escrow Finance
Corp. prior to the Merger Date and (ii) Ferrellgas, L.P. and Finance Corp. on and after the Merger
Date.



Pursuant to the Agreement and Plan of Merger, dated as of February 8, 2004 (the “Acquisition
Merger Agreement”), by and among FCI Trading Corp., a Delaware corporation (“FCI”), Diesel
Acquisition LLC, a Delaware limited liability company and a wholly-owned subsidiary of FCI
(“Diesel”), Ferrell Companies, Inc., a Kansas corporation, and Blue Rhino Corporation, a Delaware
corporation (“Blue Rhino Corp.”), Diesel will merge with and into Blue Rhino Corp. with Blue Rhino
Corp. being the surviving entity (the “Acquisition Merger”).



Upon the consummation of the Acquisition Merger and the occurrence of certain other
conditions, it is expected that the net proceeds of the offering of the Notes (as defined below)
that will be deposited into the escrow account pursuant to an Escrow and Security Agreement, dated
as of the date hereof (the “Escrow and Security Agreement”), among Escrow LLC and Escrow Finance
Corp., the Trustee and LaSalle Bank National Association, as escrow agent and securities
intermediary (the “Escrow Agent”), will be released to Escrow LLC and Escrow Finance Corp. pursuant
thereto. In accordance with the terms of the Acquisition Merger Agreement, such funds, together
with additional funds sufficient to pay the consideration for the Acquisition Merger (such
consideration, the “Merger Consideration”), will be deposited into another escrow account pursuant
to the terms of an escrow agreement (the “Acquisition Escrow Agreement”), to be dated as of or
prior to the date of the consummation of the Acquisition Merger, by and among FCI, Blue Rhino Corp.
and the Escrow Agent. Pursuant to the Acquisition Escrow Agreement, it is expected that all such
funds will be released to the Paying Agent (as defined below) for payment of the Merger
Consideration simultaneously with the effectiveness of the merger of Blue Rhino LLC with and into
Ferrellgas, L.P. and the Escrow Mergers (as defined below) (the date and time of the effectiveness
of the Escrow Mergers being referred to herein as the “Merger Date”).



Pursuant to the Contribution Agreement, dated as of February 8, 2004, by and among FCI, the
General Partner, Ferrellgas Partners and Ferrellgas, L.P. (the “Contribution Agreement”), FCI has
agreed to convert Blue Rhino Corp. into a limited liability company. Upon such conversion, FCI
will contribute to Ferrellgas Partners a portion of the membership interests in Blue Rhino LLC and
Ferrellgas Partners will assume FCI’s obligations under the Acquisition Merger Agreement to pay the
Merger Consideration, together with specific other obligations. After that contribution,
Ferrellgas Partners will contribute to Ferrellgas, L.P. its membership interests in Blue Rhino LLC
and Ferrellgas, L.P. will assume Ferrellgas Partners’ obligations to pay the Merger Consideration,
together with specific other obligations. Blue Rhino LLC will then be merged with and into
Ferrellgas, L.P. with Ferrellgas, L.P. being the surviving entity.



On the Merger Date, Escrow LLC will merge with and into Ferrellgas, L.P. with Ferrellgas, L.P.
being the surviving entity and Escrow Finance Corp. will merge with and into Finance Corp. with
Finance Corp. being the surviving entity (together, the “Escrow Mergers”); and Ferrellgas, L.P. and
Finance Corp. will succeed to the obligations of Escrow LLC and Escrow Finance Corp. under this
Indenture, the Notes and a registration rights agreement, dated as of the date hereof, among Escrow
LLC, Escrow Finance Corp. and the Initial Purchasers and on and after the Merger Date, Ferrellgas,
L.P. and Finance Corp.


 


1









 





The Issuers and the Trustee agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders (as defined below) of the 63/4% Senior Notes due 2014 (the
“Notes”):



ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.01 Definitions.




“144A Global Note” means a Global Note substantially in the form of Exhibit A1 hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.



“Accounts Receivable Securitization” means a financing arrangement involving the transfer or
sale of accounts receivable of the Partnership and its Restricted Subsidiaries in the ordinary
course of business through one or more SPEs, the terms of which arrangement do not impose (a) any
recourse or repurchase obligations upon the Partnership and its Restricted Subsidiaries or any
Affiliate of the Partnership and its Restricted Subsidiaries (other than any such SPE) except to
the extent of the breach of a representation or warranty by the Partnership and its Restricted
Subsidiaries in connection therewith or (b) any negative pledge or Lien on any accounts receivable
not actually transferred to any such SPE in connection with such arrangement.



“Additional Notes” means additional notes (other than the Initial Notes and the Exchange
Notes) issued from time to time under this Indenture in accordance with Sections 2.02 and 4.09
hereof, as part of the same series as the Initial Notes.



“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, will mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” will have correlative meanings.



“Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.



“Applicable Procedures” means, with respect to any transfer or exchange of, or for beneficial
interests in, any Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer or exchange.



“Asset Acquisition” means the following (in all cases, including assets acquired through a
Flow-Through Acquisition):




(1) an Investment by the Partnership or any Restricted Subsidiary of the Partnership in
any other Person pursuant to which the Person shall become a Restricted Subsidiary of the
Partnership, or shall be merged with or into the Partnership or any Restricted Subsidiary of
the Partnership;


 


2









 






(2) the acquisition by the Partnership or any Restricted Subsidiary of the Partnership
of the assets of any Person, other than a Restricted Subsidiary of the Partnership, which
constitute all or substantially all of the assets of such Person; or




(3) the acquisition by the Partnership or any Restricted Subsidiary of the Partnership
of any division or line of business of any Person, other than a Restricted Subsidiary of the
Partnership.



“Asset Sale” means either of the following, whether in a single transaction or a series of
related transactions:




(1) the sale, lease, conveyance or other disposition of any assets other than (a)
sales, leases or transfers of assets in the ordinary course of business (including but not
limited to the sales of inventory in the ordinary course of business), and (b) sales of
accounts receivable under any Accounts Receivable Securitization; or




(2) the issuance or sale of Capital Stock of any direct Subsidiary.



Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:




(1) any sale, lease or transfer of assets or Capital Stock by the Partnership or any of
its Restricted Subsidiaries to the Issuers or a Restricted Subsidiary;




(2) any sale or transfer of assets or Capital Stock by the Partnership or any of its
Restricted Subsidiaries to any entity in exchange for other assets used in a related
business and/or cash (provided, that such cash portion is at least 75% of the difference
between the value of the assets being transferred and the value of the assets being
received) and having a fair market value, as determined in good faith by an authorized
financial officer of the General Partner, reasonably equivalent to the fair market value of
the assets so transferred;




(3) any sale, lease or transfer of assets in accordance with Permitted Investments;




(4) the sale, lease, conveyance or other disposition of all or substantially all of the
assets of the Partnership; provided, that the sale, lease, conveyance or other disposition
of all or substantially all of the assets of the Partnership will be governed by Section
4.14 hereof and/or Section 5.01 hereof and not Section 4.10 hereof;




(5) the transfer or disposition of assets that are permitted Restricted Payments;




(6) any sale, lease or transfer of assets pursuant to a Sale and Leaseback Transaction
otherwise permitted by this Indenture; and




(7) sales or transfers of accounts receivable under an Accounts Receivable
Securitization.



“Attributable Debt” means, with respect to any Sale and Leaseback Transactions not involving a
Capital Lease, as of any date of determination, the total obligation, discounted to present value
at the rate of interest implicit in the lease included in the transaction, of the lessee for rental
payments during the remaining portion of the term of the lease, including extensions which are at
the sole option of the lessor, of the lease included in the transaction. For purposes of this
definition, the rental payments shall not include amounts required to be paid on account of
property taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costs
and other items which do not constitute payments for
property rights. In the case of any lease which is terminable by the lessee upon the payment
of a penalty, the rental obligation shall also include the amount of the penalty, but no rent shall
be considered as required to be paid under such lease subsequent to the first date upon which it
may be so terminated.


 


3









 





“Available Cash” as to any quarter means:




(1) the sum of:




(a) all cash receipts of the Partnership during such quarter from all sources
(including, without limitation, distributions of cash received from Subsidiaries of the
Partnership, cash proceeds from Interim Capital Transactions, but excluding cash proceeds
from Termination Capital Transactions, and borrowings made under the Credit Facilities); and




(b) any reduction with respect to such quarter in a cash reserve previously established
pursuant to clause (2)(b) below (either by reversal or utilization) from the level of such
reserve at the end of the prior quarter;




(2) less the sum of:




(a) all cash disbursements of the Partnership during such quarter, including, without
limitation, disbursements for operating expenses, taxes, if any, debt service (including,
without limitation, the payment of principal, premium and interest), redemption of Capital
Stock of the Partnership, capital expenditures, contributions, if any, to a Subsidiary and
cash distributions to partners of the Partnership (but only to the extent that such cash
distributions to partners exceed Available Cash for the immediately preceding quarter); and




(b) any cash reserves established with respect to such quarter, and any increase with
respect to such quarter in a cash reserve previously established pursuant to this clause
(2)(b) from the level of such reserve at the end of the prior quarter, in such amounts as
the General Partner determines in its reasonable discretion to be necessary or appropriate
(i) to provide for the proper conduct of the business of the Partnership (including, without
limitation, reserves for future capital expenditures), (ii) to provide funds for
distributions with respect to Capital Stock of the Partnership in respect of any one or more
of the next four quarters or (iii) because the distribution of such amounts would be
prohibited by applicable law or by any loan agreement, security agreement, mortgage, debt
instrument or other agreement or obligation to which the Partnership is a party or by which
it is bound or its assets are subject;




(3) plus the lesser of (a) an amount as calculated in accordance with clauses (1) and
(2) above for the Partnership or its Restricted Subsidiaries for the first 45 days of the
quarter during which such Restricted Payment is made (rather than the quarter for which
clauses (1) and (2) were calculated) and (b) an amount of working capital Indebtedness that
the Partnership or its Restricted Subsidiaries could have incurred on or before the 45th day
after the last day of the quarter used to calculate clauses (1) and (2) above;



provided, however, that Available Cash attributable to any Restricted Subsidiary of the Partnership
will be excluded to the extent dividends or distributions of Available Cash by the Restricted
Subsidiary are not at the date of determination permitted by the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or other regulation.


 


4









 





Notwithstanding the foregoing, (x) disbursements (including, without limitation, contributions
to a Subsidiary or disbursements on behalf of a Subsidiary) made or reserves established, increased
or reduced after the end of any quarter but on or before the date on which any Restricted Payment
requiring
a determination of Available Cash for such quarter is made shall be deemed to have been made,
established, increased or reduced, for purposes of determining Available Cash, with respect to such
quarter if the General Partner so determines, and (y) “Available Cash” shall not include any cash
receipts or reductions in reserves or take into account any disbursements made or reserves
established in each case after the date of liquidation of the Partnership. Taxes paid by the
Partnership on behalf of, or amounts withheld with respect to, all or less than all of the partners
shall not be considered cash disbursements of the Partnership that reduce Available Cash, but the
payment or withholding thereof shall be deemed to be a distribution of Available Cash to the
partners. Alternatively, in the discretion of the General Partner, such taxes (if pertaining to all
partners) may be considered to be cash disbursements of the Partnership which reduce Available
Cash, but the payment or withholding thereof shall not be deemed to be a distribution of Available
Cash to such partners.



“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.



“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “Person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “Person” will be deemed to
have beneficial ownership of all securities that such “Person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” have a corresponding meaning.



“Board of Directors” means:




(1) with respect to a corporation, the board of directors of the corporation;




(2) with respect to a partnership, the Board of Directors of the general partner of the
partnership; and




(3) with respect to any other Person, the board or committee of such Person serving a
similar function.



“Borrowing Base” means, as of any date, an amount equal to:




(1) 80% of the face amount of all accounts receivable owned by the Partnership and its
Subsidiaries as of the end of the most recent month preceding such date that were not more
than 90 days past due; plus




(2) 70% of the value of all inventory owned by the Partnership and its Subsidiaries as
of the end of the most recent month preceding such date,



in each case, calculated on a consolidated basis and in accordance with GAAP.



“Business Day” means any day other than a Legal Holiday.



“Capital Stock” means of any Person any capital stock, partnership interest, membership
interest, or equity interest of any kind.


 


5









 





“Change of Control” means




(1) the sale, lease, conveyance or other disposition of all or substantially all of the
assets of the Partnership to any entity other than to a Related Party;




(2) the liquidation or dissolution of the Partnership or the General Partner, or a
successor to the General Partner; or




(3) any transaction or series of transactions that results in a Person other than a
Related Party beneficially owning in the aggregate, directly or indirectly, more than 35% of
the voting stock of the General Partner or a successor to the General Partner and such
percentage is more than the percentage of voting stock that is owned by the Related Party or
a successor to the Related Party.



“Consolidated Cash Flow Available for Fixed Charges” means, with respect to the Partnership
and its Restricted Subsidiaries, for any period, the sum of, without duplication, the amounts for
the period, taken as single accounting, of:




(1) Consolidated Net Income;




(2) Consolidated Non-cash Charges;




(3) Consolidated Interest Expense; and




(4) Consolidated Income Tax Expense.



“Consolidated Fixed Charge Coverage Ratio” means, with respect to the Partnership and its
Restricted Subsidiaries, the ratio of (y) the aggregate amount of Consolidated Cash Flow Available
for Fixed Charges of the Person for the four full fiscal quarters immediately preceding the date of
the transaction (the “Transaction Date”) giving rise to the need to calculate the Consolidated
Fixed Charge Coverage Ratio (the “Four Quarter Period”), to (z) the aggregate amount of
Consolidated Fixed Charges of the Person for the Four Quarter Period. In addition to and without
limitation of the foregoing, for purposes of this definition, “Consolidated Cash Flow Available for
Fixed Charges” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro
forma basis for the period of the calculation to, without duplication:




(1) the incurrence or repayment of any Indebtedness, excluding the incurrence of
revolving credit borrowings and repayments of revolving credit borrowings (other than the
incurrence and repayment of any revolving credit borrowings the proceeds of which are used
for Asset Acquisitions or Growth Related Capital Expenditures of the Partnership or any of
its Restricted Subsidiaries and, in the case of any incurrence or revolving credit
borrowings, the application of the net proceeds thereof) during the period commencing on the
first day of the Four Quarter Period to and including the Transaction Date (the “Reference
Period”), including, without limitation, the incurrence of the Indebtedness giving rise to
the need to make the calculation (and the application of the net proceeds thereof), as if
the incurrence (and application) occurred on the first day of the Reference Period; and




(2) any Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make the calculation as a result of the Partnership
or one of its Restricted Subsidiaries, including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition, incurring, assuming or otherwise being
liable for Acquired Indebtedness) occurring during the Reference Period, as if the Asset
Sale or Asset Acquisition occurred on the first day of the Reference Period; provided,
however, that:




(a) Consolidated Fixed Charges will be reduced by amounts attributable to businesses or
assets that are so disposed of only to the extent that the obligations giving rise to such
Consolidated Fixed Charges would no longer be obligations contributing to the Consolidated
Fixed Charges subsequent to the date of determination of the Consolidated Fixed Charge
Coverage Ratio;


 


6









 






(b) Consolidated Cash Flow Available for Fixed Charges generated by an acquired
business or asset shall be determined by the actual gross profit, which is equal to revenues
minus cost of goods sold, of the acquired business or asset during the immediately available
preceding four full fiscal quarters occurring in the Reference Period, minus the pro forma
expenses that would have been incurred by the Partnership and its Restricted Subsidiaries in
the operation of the acquired business or asset during the period computed on the basis of
personnel expenses for employees retained or to be retained by the Partnership and its
Restricted Subsidiaries in the operation of the acquired business or asset and non-personnel
costs and expenses incurred by or to be incurred by the Partnership and its Restricted
Subsidiaries based upon the operation of the Partnership’s business, all as determined in
good faith by an authorized financial officer of the General Partner; and




(c) Consolidated Cash Flow Available for Fixed Charges shall not include the impact of
any nonrecurring cash charges incurred in connection with a restructuring, reorganization or
other similar transaction, as determined in good faith by an authorized financial officer of
the General Partner.



Furthermore, subject to the following paragraph, in calculating “Consolidated Fixed Charges”
for purposes of determining the “Consolidated Fixed Charge Coverage Ratio”:




(1) interest on outstanding Indebtedness, other than Indebtedness referred to in the
point below, determined on a fluctuating basis as of the last day of the Four Quarter Period
and which will continue to be so determined thereafter shall be deemed to have accrued at a
fixed rate per annum equal to the rate of interest on such Indebtedness in effect on that
date;




(2) only actual interest payments associated with Indebtedness incurred in accordance
with clause (4) of the definition of Permitted Indebtedness and all Permitted Refinancing
Indebtedness in respect thereof, during the Four Quarter Period shall be included in the
calculation; and




(3) if interest on any Indebtedness actually incurred on the date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the
last day of the Four Quarter Period will be deemed to have been in effect during the period.



“Consolidated Fixed Charges” means, with respect to the Partnership and its Restricted
Subsidiaries for any period, the sum of, without duplication:




(1) the amounts for such period of Consolidated Interest Expense; and




(2) the product of:




(a) the aggregate amount of dividends and other distributions paid or accrued during
the period in respect of Preferred Stock and Redeemable Capital Stock of the Partnership and
its Restricted Subsidiaries on a consolidated basis; and



(b) a fraction, the numerator of which is one and the denominator of which is one less
the then applicable current combined federal, state and local statutory tax rate, expressed
as a percentage.



 


7









 







“Consolidated Income Tax Expense” means, with respect to the Partnership and its Restricted
Subsidiaries for any period, the provision for federal, state, local and foreign income taxes of
the Partnership and its Restricted Subsidiaries for the period as determined on a consolidated
basis in accordance with GAAP.



“Consolidated Interest Expense” means, with respect to the Partnership and its Restricted
Subsidiaries, for any period, without duplication, the sum of:




(1) the interest expense of the Partnership and its Restricted Subsidiaries for the
period as determined on a consolidated basis in accordance with GAAP, including, without
limitation:




(2) any amortization of debt discount;




(3) the net cost under Interest Rate Agreements;




(4) the interest portion of any deferred payment obligation;




(5) all commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers’ acceptance financing;




(6) all accrued interest for all instruments evidencing Indebtedness; and




(7) the interest component of Capital Leases paid or accrued or scheduled to be paid or
accrued by the Partnership and its Restricted Subsidiaries during the period as determined
on a consolidated basis in accordance with GAAP.



“Consolidated Net Income” means the net income of the Partnership and its Restricted
Subsidiaries, as determined on a consolidated basis in accordance with GAAP and as adjusted to
exclude:




(1) net after-tax extraordinary gains or losses;




(2) net after-tax gains or losses attributable to Asset Sales or sales of receivables
under any Accounts Receivable Securitization;




(3) the net income or loss of any Person which is not a Restricted Subsidiary and which
is accounted for by the equity method of accounting; provided, that Consolidated Net Income
shall include the amount of dividends or distributions actually paid to the Partnership or
any Restricted Subsidiary;




(4) the net income or loss prior to the date of acquisition of any Person combined with
the Partnership or any Restricted Subsidiary in a pooling of interest;




(5) the net income of any Restricted Subsidiary to the extent that dividends or
distributions of that net income are not at the date of determination permitted by the terms
of its charter or any judgment, decree, order, statute, rule or other regulation; and




(6) the cumulative effect of any changes in accounting principles.


 


8









 





“Consolidated Non-Cash Charges” means, with respect to the Partnership and its Restricted
Subsidiaries for any period, the aggregate (1) depreciation, (2) amortization, (3) non-cash
employee compensation expenses of the Partnership or its Restricted Subsidiaries for such period,
and (4) any non-cash charges resulting from writedowns of non-current assets, in each case which
reduces the Consolidated Net Income of the Partnership and its Restricted Subsidiaries for the
period, as determined on a consolidated basis in accordance with GAAP.



“Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in
Section 11.02 hereof or such other address as to which the Trustee may give notice to the Issuers.



“Credit Agreement” means that Fourth Amended and Restated Credit Agreement, dated as of
December 10, 2002, among the Partnership, the General Partner, Bank of America N.A. (formerly known
as Bank of America National Trust and Savings Association), as agent, and the other financial
institutions party thereto.



“Credit Facilities” means, one or more debt facilities (including, without limitation, the
facilities evidenced by the Credit Agreement) or commercial paper facilities, in each case with
banks or other institutional lenders providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from
time to time.



“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.



“Default” means any event that is, or after notice or with the passage of time or both would
be, an Event of Default.



“Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except
that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges
of Interests in the Global Note” attached thereto.



“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and
any and all successors thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.



“Designation Amount” means, with respect to the designation of a Restricted Subsidiary or a
newly acquired or formed Subsidiary as an Unrestricted Subsidiary, an amount equal to the sum of:




(1) the net book value of all assets of the Subsidiary at the time of the designation
in the case of a Restricted Subsidiary; and




(2) the cost of acquisition or formation in the case of a newly acquired or formed
Subsidiary.



 


9









 






“Equity Offering” means a public offering or private placement of partnership interests (other
than interests that are mandatorily redeemable) of:




(1) any entity that directly or indirectly owns equity interests in the Partnership, to
the extent the net proceeds are contributed to the Partnership;



(2) any Subsidiary of the Partnership to the extent the net proceeds are distributed,
paid, lent or otherwise transferred to the Partnership that results in the net proceeds to
the Partnership of at least $20 million; or




(3) the Partnership.



A private placement of partnership interests will not be deemed an Equity Offering unless net
proceeds of at least $20 million are received.



“Escrow Account” has the meaning set forth in the Escrow and Security Agreement.



“Escrow Property” has the meaning set forth in the Escrow and Security Agreement.



“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.



“Exchange Act” means the Securities Exchange Act of 1934, as amended.



“Exchange Notes” means the Notes issued in the Exchange Offer pursuant to Section 2.06(f)
hereof.



“Existing Notes” means the Partnership’s (1) $109,000,000 principal amount of 6.99% Senior
Notes, Series A, due August 1, 2005, (2) $37,000,000 principal amount of 7.08% Senior Notes, Series
B, due August 1, 2006, (3) $52,000,000 principal amount of 7.12% Senior Notes, Series C, due August
1, 2008, (4) $82,000,000 principal amount of 7.24% Senior Notes, Series D, due August 1, 2010, (5)
$70,000,000 principal amount of 7.42% Senior Notes, Series E, due August 1, 2013, (6) $21,000,000
principal amount of 8.68% Senior Notes, Series A, due August 1, 2006, (7) $90,000,000 principal
amount of 8.78% Senior Notes, Series B, due August 1, 2007, and (8) $73,000,000 principal amount of
8.87% Senior Notes, Series C, due August 1, 2009.



“Exchange Offer” has the meaning set forth in the Registration Rights Agreement.



“Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights
Agreement.



“Ferrellgas Partners” means Ferrellgas Partners, L.P.



“Flow-Through Acquisition” means an acquisition by the General Partner or its parent from a
Person that is not an Affiliate of the General Partner, its parent or the Partnership, of property
(real or personal), assets or equipment (whether through the direct purchase of assets or the
Capital Stock of the Person owning such assets) in a permitted line of business, which is promptly
sold, transferred or contributed by the General Partner or its parent to the Partnership or one of
its Subsidiaries.



“GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, in each case, which are in effect on the date of this Indenture.



 


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“General Partner” means Ferrellgas, Inc.



“Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depositary or
its nominee, substantially in the form of Exhibit A1 hereto and that bears the Global Note
Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto,
issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(g)(2) hereof.



“Global Note Legend” means the legend set forth in Section 2.06(g)(2), which is required to be
placed on all Global Notes issued under this Indenture.



“Government Securities” means direct obligations of, or obligations guaranteed by, the United
States of America, and the payment for which the United States pledges its full faith and credit.



“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).



“Holder” means a Person in whose name a Note is registered.



“IAI Global Note” means a Global Note substantially in the form of Exhibit A1 hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee that will be issued in a denomination equal
to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.



“Indebtedness” means, as applied to any Person, without duplication:




(1) (a) any indebtedness for borrowed money and (b) all obligations evidenced by any
(i) bond, note, debenture or other similar instrument or (ii) letter of credit, or
reimbursement agreements in respect thereof, but only for any drawings that are not
reimbursed within five Business Days after the date of such drawings, which in each case the
Person has, directly or indirectly, created, incurred or assumed;




(2) any indebtedness for borrowed money and all obligations evidenced by any bond,
note, debenture or other similar instrument secured by any Lien in respect of property owned
by the Person, whether or not the Person has assumed or become liable for the payment of the
indebtedness; provided, that the amount of the indebtedness, if the Person has not assumed
the same or become liable therefor, shall in no event be deemed to be greater than the fair
market value from time to time, as determined in good faith by the Person of the property
subject to the Lien;




(3) any indebtedness, whether or not for borrowed money (excluding trade payables and
accrued expenses arising in the ordinary course of business) with respect to which the
Person has become directly or indirectly liable and which represents the deferred purchase
price, or a portion thereof, or has been incurred to finance the purchase price, or a
portion thereof, of any property or business acquired by, or service performed on behalf of,
the Person, whether by purchase, consolidation, merger or otherwise;




(4) the principal component of any obligations under Capital Leases to the extent the
obligations would, in accordance with GAAP, appear on the balance sheet of the Person;




(5) all Attributable Debt of the Person in respect of Sale and Leaseback Transactions
not involving a Capital Lease;


 


11









 






(6) any indebtedness of any other Person of the character referred to in the foregoing
clauses (1)-(5) of this definition with respect to which the Person whose indebtedness is
being determined has become liable by way of a guarantee; and




(7) all Redeemable Capital Stock of the Person valued at the greater of its voluntary
or involuntary maximum fixed repurchase price plus accrued dividends.



For purposes hereof, the “maximum fixed repurchase price” of any Redeemable Capital Stock
which does not have a fixed repurchase price shall be calculated in accordance with the terms of
the Redeemable Capital Stock as if it were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture and if the price is based upon, or measured
by, the fair market value of the Redeemable Capital Stock, the fair market value shall be
determined in good faith by the Board of Directors of the issuer of the Redeemable Capital Stock.
For purposes hereof, the term “Indebtedness” shall not include (x) accrual of interest, the
accretion of accreted value and the payment of interest or any other similar incurrence by the
Partnership or its Restricted Subsidiaries related to Indebtedness otherwise permitted in this
Indenture, (y) Indebtedness under any hedging arrangement which provides for the right or
obligation to purchase, sell or deliver any currency, commodity or security at a future date for a
specified price entered into to protect such Person from fluctuations in prices or rates, including
currencies, interest rates, commodity prices, and securities prices, including without limitation
indebtedness under any interest rate or commodity price swap agreement, interest rate cap
agreement, interest rate collar agreement or any forward sales arrangements, calls, options, swaps,
or other similar transactions or any combination thereof, including, or (z) any Accounts Receivable
Securitization.



“Indenture” means this Indenture, as amended or supplemented from time to time.



“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through
a Participant.



“Initial Notes” means the first $250,000,000 aggregate principal amount of Notes issued under
this Indenture on the date hereof.



“Initial Purchasers” means Credit Suisse First Boston LLC, Banc of America Securities LLC, ABN
AMRO Incorporated, Banc One Capital Markets, Inc., BNP Paribas Securities Corp., Piper Jaffray &
Co., SG Cowen Securities Corporation, and Wells Fargo Securities, LLC.



“Interim Capital Transactions” means (1) borrowings, refinancings or refundings of
Indebtedness and sales of debt securities (other than for working capital purposes and other than
for items purchased on open account in the ordinary course of business) by the Partnership, (2)
sales of Capital Stock of the Partnership by the Partnership and (3) sales or other voluntary or
involuntary dispositions of any assets of the Partnership (other than (x) sales or other
dispositions of inventory in the ordinary course of business, (y) sales or other dispositions of
other current assets including, without limitation, receivables and accounts and (z) sales or other
dispositions of assets as a part of normal retirements or replacements), in each case prior to the
commencement of the dissolution and liquidation of the Partnership.



 


12









 






“Investment” means as applied to any Person:




(1) any direct or indirect purchase or other acquisition by the Person of stock or
other securities of any other Person; or



(2) any direct or indirect loan, advance or capital contribution by the Person to any
other Person and any other item which would be classified as an “investment” on a balance
sheet
of the Person prepared in accordance with GAAP, including without limitation any direct
or indirect contribution by the Person of property or assets to a joint venture, partnership
or other business entity in which the Person retains an interest, it being understood that a
direct or indirect purchase or other acquisition by the Person of assets of any other
Person, other than stock or other securities, shall not constitute an “Investment” for
purposes of this Indenture.



The amount classified as Investments made during any period will be the aggregate cost to the
Partnership and its Restricted Subsidiaries of all the Investments made during the period,
determined in accordance with GAAP, but without regard to unrealized increases or decreases in
value, or write-ups, write-downs or write-offs, of the Investments and without regard to the
existence of any undistributed earnings or accrued interest with respect thereto accrued after the
respective dates on which the Investments were made, less any net return of capital realized during
the period upon the sale, repayment or other liquidation of the Investments, determined in
accordance with GAAP, but without regard to any amounts received during the period as earnings (in
the form of dividends not constituting a return of capital, interest or otherwise) on the
Investments or as loans from any Person in whom the Investments have been made.



“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York or at a place of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.



“Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge,
charge, security interest, hypothecation, assignment for security or other encumbrance of any kind
in respect of such asset. A Person shall be deemed to own subject to a Lien any asset which such
Person has acquired or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement.



“Net Amount of Unrestricted Investment” means, without duplication, the sum of:




(1) the aggregate amount of all Investments made after the date of this Indenture
pursuant to clause (3) of the definition of Permitted Investment hereto, computed as
provided in the last sentence of the definition of Investment herein; and




(2) the aggregate of all Designation Amounts in connection with the designation of
Unrestricted Subsidiaries, less all Designation Amounts in respect of Unrestricted
Subsidiaries which have been designated as Restricted Subsidiaries and otherwise reduced in
a manner consistent with the provisions of the last sentence of the definition of Investment
herein.



“Net Proceeds” means, with respect to any asset sale or sale of Capital Stock, the proceeds
therefrom in the form of cash or cash equivalents including payments in respect of deferred payment
obligations when received in the form of cash or cash equivalents, except to the extent that the
deferred payment obligations are financed or sold with recourse to the Partnership or any of its
Restricted Subsidiaries, net of:




(1) brokerage commissions and other fees and expenses related to the Asset Sale,
including, without limitation, fees and expenses of legal counsel and accountants and fees,
expenses, discounts or commissions of underwriters, placement agents and investment bankers;




(2) provisions for all taxes payable as a result of the Asset Sale;


 


13









 






(3) amounts required to be paid to any Person, other than the Partnership or any
Restricted Subsidiary of the Partnership, owning a beneficial interest in the assets subject
to the Asset Sale;




(4) appropriate amounts to be provided by the Partnership or any Restricted Subsidiary
of the Partnership, as the case may be, as a reserve required in accordance with GAAP
against any liabilities associated with the Asset Sale and retained by the Partnership or
any Restricted Subsidiary of the Partnership, as the case may be, after the Asset Sale,
including, without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any indemnification
obligations associated with the Asset Sale; and




(5) amounts applied to the repayment of Indebtedness in connection with the asset or
assets acquired in the Asset Sale, including any transaction costs and expenses associated
therewith and any make-whole or other premium owed in connection with such repayment.



“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes,
the Additional Notes and the Exchange Notes shall be treated as a single class for all purposes
under this Indenture, and unless the context otherwise requires, all references to the Notes shall
include the Initial Notes, any Additional Notes and the Exchange Notes.



“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.



“Officers’ Certificate” means a certificate signed on behalf of the Issuers by two Officers of
the Issuers, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Issuers, that meets the requirements of
Section 11.05 hereof.



“Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 11.05 hereof. The counsel may be an employee of or
counsel to the Issuers, any Subsidiary of the Issuers or the Trustee.



“Participant” means, with respect to the Depositary, a Person who has an account with the
Depositary.



“Partnership” means Ferrellgas, L.P., without its consolidated subsidiaries.



“Permitted Investments” means any of the following:




(1) Investments made or owned by the Partnership or any Restricted Subsidiary in:




(a) marketable obligations issued or unconditionally guaranteed by the United States,
or issued by any agency thereof and backed by the full faith and credit of the United
States, in each case maturing one year or less from the date of acquisition thereof;




(b) marketable direct obligations issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and having as at such date the highest
rating obtainable from either Standard & Poor’s Ratings Group (“S&P”) and its successors or
Moody’s Investors Service, Inc. (“Moody’s”) and its successors;


 


14









 






(c) commercial paper maturing no more than 270 days from the date of creation thereof
and having as at the date of acquisition thereof one of the two highest ratings obtainable
from either S&P or Moody’s;




(d) certificates of deposit maturing one year or less from the date of acquisition
thereof issued by commercial banks incorporated under the laws of the United States or any
state thereof or the District of Columbia or Canada;




(e) the commercial paper or other short term unsecured debt obligations of which are as
at such date rated either “A-2” or better (or comparably if the rating system is changed) by
S&P or “Prime-2” or better (or comparably if the rating system is changed) by Moody’s;




(f) the long-term debt obligations of which are, as at such date, rated either “A” or
better (or comparably if the rating system is changed) by either S&P or Moody’s (“Permitted
Banks”);




(g) eurodollar time deposits having a maturity of less than 270 days from the date of
acquisition thereof purchased directly from any Permitted Bank;




(h) bankers’ acceptances eligible for rediscount under requirements of the Board of
Governors of the Federal Reserve System and accepted by Permitted Banks; and




(i) obligations of the type described in clauses (a) through (e) above purchased from a
securities dealer designated as a “primary dealer” by the Federal Reserve Bank of New York
or from a Permitted Bank as counterparty to a written repurchase agreement obligating such
counterparty to repurchase such obligations not later than 14 days after the purchase
thereof and which provides that the obligations which are the subject thereof are held for
the benefit of the Partnership or a Restricted Subsidiary by a custodian which is a
Permitted Bank and which is not a counterparty to the repurchase agreement in question;




(2) the acquisition by the Partnership or any Restricted Subsidiary of Capital Stock or
other ownership interests, whether in a single transaction or in a series of related
transactions, of a Person located in the United States, Mexico or Canada and engaged in
substantially the same business as the Partnership such that, upon the completion of such
transaction or series of transactions, the Person becomes a Restricted Subsidiary;




(3) the making or ownership by the Partnership or any Restricted Subsidiary of
Investments (in addition to any other Permitted Investments) in any Person incorporated or
otherwise formed pursuant to the laws of the United States, Mexico or Canada or any state
thereof which is engaged in the United States, Mexico or Canada; provided, that the
aggregate amount of all such Investments made by the Partnership and its Restricted
Subsidiaries following the date of this Indenture and outstanding pursuant to this third
clause shall not at any date of determination exceed 7.5% of Total Assets;




 


15









 






(4) the making or ownership by the Partnership or any Restricted Subsidiary of
Investments:




(a) arising out of loans and advances to employees incurred in the ordinary course of
business;



(b) arising out of extensions of trade credit or advances to third parties in the
ordinary course of business; or




(c) acquired by reason of the exercise of customary creditors’ rights upon default or
pursuant to the bankruptcy, insolvency or reorganization of a debtor;




(5) the creation or incurrence of liability by the Partnership or any Restricted
Subsidiary, with respect to any guarantee constituting an obligation, warranty or indemnity,
not guaranteeing Indebtedness of any Person, which is undertaken or made in the ordinary
course of business;




(6) the creation or incurrence of liability by the Partnership or any Restricted
Subsidiary with respect to any hedging agreements or arrangements;




(7) the making by any Restricted Subsidiary of Investments in the Partnership or
another Restricted Subsidiary and the making by the Partnership of Investments in any
Restricted Subsidiary;




(8) the present value, determined on the basis of the implicit interest rate, of all
basic rental obligations under all synthetic leases of the Partnership or any Restricted
Subsidiary; and




(9) the creation or incurrence of liability by the Partnership or any Restricted
Subsidiary or the making or ownership by the Partnership or any Restricted Subsidiary of
Investments in any Person with respect to any Accounts Receivable Securitization.



“Permitted Liens” means any of the following:




(1) Liens for taxes, assessments or other governmental charges, the payment of which is
not yet due or the payment of which is being contested in good faith by appropriate
proceedings promptly initiated and diligently conducted and as to which reserves or other
appropriate provision, if any, as shall be required by GAAP, shall have been made therefor
and be adequate in the good faith judgment of the obligor;




(2) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics,
materialmen, repairmen and other like Liens incurred in the ordinary course of business for
sums not yet due or the payment of which is being contested in good faith by appropriate
proceedings promptly initiated and diligently conducted and as to which reserves or other
appropriate provisions, if any, as shall be required by GAAP, shall have been made therefor
and be adequate in the good faith judgment of the obligor, in each case:




(a) not incurred or made in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of property; or




(b) incurred in the ordinary course of business securing the unpaid purchase price of
property or services constituting current accounts payable;




 


16









 






(3) Liens, other than any Lien imposed by the Employee Retirement Income Security Act
of 1974, as may be amended from time to time, incurred or deposits made in the ordinary
course of business:




(a) in connection with workers’ compensation, unemployment insurance and other types of
social security; or



(b) to secure or to obtain letters of credit that secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, performance bonds, purchase,
construction or sales contracts and other similar obligations, in each case not incurred or
made in connection with the borrowing of money;




(4) other deposits made to secure liability to insurance carriers under insurance or
self-insurance arrangements;




(5) Liens securing reimbursement obligations under letters of credit, provided in each
case that such Liens cover only the title documents and related goods and any proceeds
thereof covered by the related letter of credit;




(6) any attachment or judgment Lien, unless the judgment it secures shall not, within
60 days after the entry thereof, have been discharged or execution thereof stayed pending
appeal or review, or shall not have been discharged within 60 days after expiration of any
such stay;




(7) leases or subleases granted to others, easements, rights-of-way, restrictions and
other similar charges or encumbrances, which, in each case either are granted, entered into
or created in the ordinary course of the business of the Partnership or any Restricted
Subsidiary or do not materially impair the value or intended use of the property covered
thereby;




(8) Liens on property or assets of any Restricted Subsidiary securing Indebtedness of
the Restricted Subsidiary owing to the Partnership or a Restricted Subsidiary;




(9) Liens on assets of the Partnership or any Restricted Subsidiary existing on the
date of this Indenture;




(10) Liens on personal property leased under leases entered into by the Partnership or
its Restricted Subsidiaries which are accounted for as operating leases in accordance with
GAAP;




(11) Liens securing Indebtedness arising under an Accounts Receivable Securitization
(including the filing of any related financing statements naming the Partnership or any
Restricted Subsidiary as the debtor thereunder in connection with the sale of accounts
receivable by the Partnership, Ferrellgas, L.P. or any Restricted Subsidiary to an SPE in
connection with any such permitted Accounts Receivable Securitization);




(12) Liens securing Indebtedness incurred in accordance with:




(a) clauses (3) and (6) of the definition of Permitted Indebtedness; and




(b) Indebtedness otherwise permitted to be incurred under Section 4.09 hereof to the
extent incurred:




(i) to finance the making of expenditures for the improvement or repair
(to the extent the improvements and repairs may be capitalized on the books
of the Partnership and the Restricted Subsidiaries in accordance with GAAP)
of, or additions including additions by way of acquisitions of businesses
and related assets to, the assets and property of the Partnership and its
Restricted Subsidiaries; or


 


17









 






(ii) by assumption in connection with additions including additions by
way of acquisition or capital contributions of businesses and related assets
to the property and assets of the Partnership and its Restricted
Subsidiaries;



provided, that, in the case of Indebtedness incurred in accordance with clauses (i) and (ii) above,
the principal amount of the Indebtedness does not exceed the lesser of the cost to the Partnership
and its Restricted Subsidiaries of the additional property or assets and the fair market value of
the additional property or assets at the time of the acquisition thereof, as determined in good
faith by an authorized financial officer of the General Partner;




(13) Liens existing on any property of any Person at the time it becomes a Subsidiary
of the Partnership, or existing at the time of acquisition upon any property acquired by the
Partnership or any Subsidiary through purchase, merger or consolidation or otherwise,
whether or not assumed by the Partnership or the Subsidiary, or created to secure
Indebtedness incurred to pay all or any part of the purchase price (a “Purchase Money Lien”)
of property including, without limitation, Capital Stock and other securities acquired by
the Partnership or a Restricted Subsidiary; provided, that:




(a) the Lien shall be confined solely to the item or items of property and, if required
by the terms of the instrument originally creating the Lien, other property which is an
improvement to or is acquired for use specifically in connection with the acquired property;




(b) in the case of a Purchase Money Lien, the principal amount of the Indebtedness
secured by the Purchase Money Lien shall at no time exceed an amount equal to the lesser of:




(A) the cost to the Partnership and the Restricted Subsidiaries of the
property; and




(B) the fair market value of the property at the time of the acquisition
thereof as determined in good faith by an authorized financial officer of the
General Partner;




(c) the Purchase Money Lien shall be created not later than 360 days after the
acquisition of the property; and




(d) the Lien, other than a Purchase Money Lien, shall not have been created or assumed
in contemplation of the Person’s becoming a Subsidiary of the Partnership or the acquisition
of property by the Partnership or any Subsidiary;




(14) easements, exceptions or reservations in any property of the Partnership or any
Restricted Subsidiary granted or reserved for the purpose of pipelines, roads, the removal
of oil, gas, coal or other minerals, and other like purposes, or for the joint or common use
of real property, facilities and equipment, which are incidental to, and do not materially
interfere with, the ordinary conduct of the business of the Partnership or any Restricted
Subsidiary;




(15) Liens arising from or constituting permitted encumbrances under the agreements and
instruments securing the obligations under the Existing Notes and the Credit Agreement; and




(16) any Lien renewing or extending any Lien permitted by clauses (9) through (13) and
(15) above; provided, that, the principal amount of the Indebtedness secured by any such
Lien shall not exceed the principal amount of the Indebtedness outstanding immediately prior
to
the renewal or extension of the Lien, and no assets encumbered by the Lien other than
the assets encumbered immediately prior to the renewal or extension shall be encumbered
thereby.


 


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“Permitted Refinancing Indebtedness” means Indebtedness incurred by the Partnership or any
Restricted Subsidiary to substantially and concurrently (excluding any notice period on
redemptions) repay, refund, renew, replace, extend or refinance, in whole or in part, any Permitted
Indebtedness of the Partnership or any Restricted Subsidiary or any other Indebtedness incurred by
the Partnership or any Restricted Subsidiary pursuant to Section 4.09, to the extent:




(1) the principal amount of the Permitted Refinancing Indebtedness does not exceed the
principal or accreted amount plus the amount of accrued and unpaid interest of the
Indebtedness so repaid, refunded, renewed, replaced, extended or refinanced (plus the amount
of all expenses and premiums incurred in connection therewith);




(2) with respect to the repayment, refunding, renewal, replacement, extension or
refinancing of the Issuers’ Indebtedness, the Permitted Refinancing Indebtedness ranks no
more favorably in right of payment with respect to the Notes than the Indebtedness so
repaid, refunded, renewed, replaced, extended or refinanced; and




(3) with respect to the repayment, refunding, renewal, replacement, extension or
refinancing of the Issuers’ Indebtedness, the Permitted Refinancing Indebtedness has a
Weighted Average Life to Stated Maturity and stated maturity equal to, or greater than, and
has no fixed mandatory redemption or sinking fund requirement in an amount greater than or
at a time prior to the amounts set forth in, the Indebtedness so repaid, refunded, renewed,
replaced, extended or refinanced;



provided, however, that Permitted Refinancing Indebtedness shall not include Indebtedness incurred
by a Restricted Subsidiary to repay, refund, renew, replace, extend or refinance Indebtedness of
the Partnership.



“Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.



“Preferred Stock,” as applied to the Capital Stock of any Person, means Capital Stock of any
class or classes (however designated), which is preferred as to the payment of distributions,
dividends, or upon any voluntary or involuntary liquidation or dissolution of such Person, over
shares or units of Capital Stock of any other class of such Person; provided, that any limited
partnership interest of the Partnership will not be considered Preferred Stock.



“Principal” means James E. Ferrell.



“Private Placement Legend” means the legend set forth in Section 2.06(g)(1) hereof to be
placed on all Notes issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.



“QIB” means a “qualified institutional buyer” as defined in Rule 144A.



“Redeemable Capital Stock” means any shares of any class or series of Capital Stock, that,
either by the terms thereof, by the terms of any security into which it is convertible or
exchangeable or by contract or otherwise, is or upon the happening of an event or passage of time
would be, required to be redeemed prior to the stated maturity of the principal of the Notes or is
redeemable at the option of the
holder thereof at any time prior to the stated maturity of the principal of the Notes, or is
convertible into or exchangeable for debt securities at any time prior to the stated maturity of
the principal of the Notes.


 


19









 





“Registration Rights Agreement” means the Registration Rights Agreement, dated as of April 20,
2004, among the Escrow LLC, Escrow Finance Corp. and the Initial Purchasers, and on and after the
Merger Date, Ferrellgas, L.P. and Finance Corp., as such agreement may be amended, modified or
supplemented from time to time.



“Regulation S” means Regulation S promulgated under the Securities Act.



“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S
Permanent Global Note, as appropriate.



“Regulation S Permanent Global Note” means a permanent Global Note in the form of Exhibit A1
hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on
behalf of and registered in the name of the Depositary or its nominee, issued in a denomination
equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration
of the Restricted Period.



“Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit A2
hereto deposited with or on behalf of and registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of the Notes initially sold in
reliance on Rule 903 of Regulation S.



“Related Party” means any of the following:




(1) any immediate family member or lineal descendant of the Principal;




(2) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of any one or more Principals and/or such other Persons referred
to in the immediately preceding clause (1);




(3) the Ferrell Companies, Inc. Employee Stock Ownership Trust (“FCI ESOT”);




(4) any participant in the FCI ESOT whose account has been allocated shares of Ferrell
Companies, Inc.;




(5) Ferrell Companies, Inc.; or




(6) any Subsidiary of Ferrell Companies, Inc.



“Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.



“Restricted Period” means the 40-day distribution compliance period as defined in Regulation
S.



“Restricted Subsidiary” means a Subsidiary of the Partnership, which, as of the date of
determination, is not an Unrestricted Subsidiary of the Partnership.


 


20









 





“Rule 144” means Rule 144 promulgated under the Securities Act.



“Rule 144A” means Rule 144A promulgated under the Securities Act.



“Rule 903” means Rule 903 promulgated under the Securities Act.



“Rule 904” means Rule 904 promulgated under the Securities Act.



“Sale and Leaseback Transaction” means any arrangement (other than between the Partnership and
a Restricted Subsidiary or between Restricted Subsidiaries) whereby property has been or will be
disposed of by a transferor to another entity with the intent of taking back a lease on the
property pursuant to which the rental payments are calculated to amortize the purchase price of the
property over its life.



“SEC” means the Securities and Exchange Commission.



“Securities Act” means the Securities Act of 1933, as amended.



“Shelf Registration Statement” means the Shelf Registration Statement as defined in the
Registration Rights Agreement.



“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1—02 of Regulation S—X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date of this Indenture.



“SPE” means any special purpose Unrestricted Subsidiary established in connection with any
Accounts Receivable Securitization.



“Subsidiary” means, with respect to any specified Person:




(1) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees of the
corporation, association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and




(2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination
thereof).



“Termination Capital Transactions” means any sale, transfer or other disposition of property
of the Partnership occurring upon or incident to the liquidation and winding up of the Partnership.



“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the
date on which this Indenture is qualified under the TIA.



“Total Assets” means, as of any date of determination, the consolidated total assets of the
Partnership and the Restricted Subsidiaries as would be shown on a consolidated balance sheet of
the Partnership and the Restricted Subsidiaries prepared in accordance with GAAP as of that date.



“Trustee” means the party named as such in the preamble to this Indenture until a successor
replaces it in accordance with the applicable provisions of this Indenture and thereafter means the
successor serving hereunder.


 


21









 





“Unrestricted Global Note” means a permanent global Note substantially in the form of Exhibit
A attached hereto that bears the Global Note Legend and that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary.



“Unrestricted Definitive Note” means one or more Definitive Notes.



“Unrestricted Subsidiary” means (a) Ferrellgas Receivables, LLC, (b) R-4 Technical Center —
North Carolina, LLC, (c) Uni-Asia, Ltd. and (d) any other Person (other than Finance Corp.) that is
designated as such by the General Partner; provided, that no portion of the Indebtedness of such
Person:




(1) is guaranteed by the Partnership or any Restricted Subsidiary;




(2) is recourse to or obligates the Partnership or any Restricted Subsidiary in any
way; or




(3) subjects any property or assets of the Partnership or any Restricted Subsidiary,
directly or indirectly, contingently or otherwise, to the satisfaction thereof.



Notwithstanding the foregoing, the Partnership or a Restricted Subsidiary may guarantee or
agree to provide funds for the payment or maintenance of, or otherwise become liable with respect
to Indebtedness of an Unrestricted Subsidiary, but only to the extent that the Partnership or a
Restricted Subsidiary would be permitted to:




(1) make an Investment in the Unrestricted Subsidiary pursuant to the third clause of
the definition of Permitted Investments; and




(2) incur the Indebtedness represented by the guarantee or agreement pursuant to
Section 4.09(a) hereto. The Board of Directors may designate an Unrestricted Subsidiary to
be a Restricted Subsidiary; provided, that immediately after giving effect to the
designation there exists no Event of Default or event which after notice or lapse or time or
both would become an Event of Default, and if the Unrestricted Subsidiary has, as of the
date of the designation, outstanding Indebtedness other than Permitted Indebtedness, the
Partnership could incur at least $1.00 of Indebtedness other than Permitted Indebtedness.



Notwithstanding the foregoing, no Subsidiary may be designated an Unrestricted Subsidiary if
the Subsidiary, directly or indirectly, holds Capital Stock of a Restricted Subsidiary.



“U.S. Person” means a U.S. Person as defined in Rule 902(o) under the Securities Act.



“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such Person.



 


22









 





“Weighted Average Life to Stated Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing:




(1) the sum of the products obtained by multiplying:




(a) the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in respect
thereof, by




(b) the number of years, calculated to the nearest one-twelfth, that will elapse
between such date and the making of such payment, by




(2) the then outstanding principal amount of such Indebtedness;



provided, however, that with respect to any revolving Indebtedness, the foregoing calculation of
Weighted Average Life to Stated Maturity shall be determined based upon the total available
commitments and the required reductions of commitments in lieu of the outstanding principal amount
and the required payments of principal, respectively.




 


23











 




Section 1.02 Other Definitions.




	 	 	 
	 	 	Defined in
	Term	 	Section
	 
	“Affiliate Transaction”
	 	4.11
	“Asset Sale Offer”
	 	3.10
	“Authentication Order”
	 	2.02
	“Blue Rhino LLC”
	 	Preamble
	“Change of Control Offer”
	 	4.14
	“Change of Control Payment”
	 	4.14
	“Change of Control Payment Date”
	 	4.14
	“Contribution Agreement”
	 	Preamble
	“Covenant Defeasance”
	 	8.03
	“DTC”
	 	2.03
	“Escrow and Security Agreement”
	 	Preamble
	“Event of Default”
	 	6.01
	“Excess Proceeds”
	 	4.10
	“incur”
	 	4.09
	“Issuers”
	 	Preamble
	“Legal Defeasance”
	 	8.02
	“Offer Amount”
	 	3.10
	“Offer Period”
	 	3.10
	“Paying Agent”
	 	2.03
	“Permitted Indebtedness”
	 	4.09
	“Purchase Date”
	 	3.10
	“Registrar”
	 	2.03
	“Restricted Payments”
	 	4.07






Section 1.03 Incorporation by Reference of Trust Indenture Act.




Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.



The following TIA terms used in this Indenture have the following meanings:



“indenture securities” means the Notes;



“indenture security Holder” means a Holder of a Note;



“indenture to be qualified” means this Indenture;



“indenture trustee” or “institutional trustee” means the Trustee; and



“obligor” on the Notes means the Issuers and any successor obligor upon the Notes.



All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.


 


24









 





Section 1.04 Rules of Construction.



Unless the context otherwise requires:




(1) a term has the meaning assigned to it;




(2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




(3) “or” is not exclusive;




(4) words in the singular include the plural, and in the plural include the singular;




(5) “will” shall be interpreted to express a command;




(6) provisions apply to successive events and transactions; and




(7) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time.



ARTICLE 2.

THE NOTES




Section 2.01 Form and Dating.




(a) General. The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The
Notes shall be in denominations of $1,000 and integral multiples thereof.



The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Issuers and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to
the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.



(b) Global Notes. Notes issued in global form will be substantially in the form of Exhibit A
attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Notes issued in definitive form will be
substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon
and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each
Global Note will represent such of the outstanding Notes as will be specified therein and each
shall provide that it represents the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in
the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee
or the Custodian, at the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.



Section 2.02 Execution and Authentication.




An Officer must sign the Notes for the Issuers by manual or facsimile signature.



If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note will nevertheless be valid.



 


25









 






A Note will not be valid until authenticated by the manual or facsimile signature of the
Trustee. The signature will be conclusive evidence that the Note has been authenticated under this
Indenture.



On the date of this Indenture, the Trustee shall, upon a written order of the Issuers signed
by an Officer (an “Authentication Order”), authenticate the Initial Notes for original issue up to
$250,000,000 in aggregate principal amount and, upon delivery of any Authentication Order at any
time and from time to time thereafter, the Trustee shall authenticate Additional Notes for original
issue in an aggregate principal amount specified in such Authentication Order.



The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of
the Issuers.



Section 2.03 Registrar and Paying Agent.




The Issuers will maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for
payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer
and exchange. The Issuers may appoint one or more co-registrars and one or more additional paying
agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any
additional paying agent. The Issuers may change any Paying Agent or Registrar without notice to
any Holder. The Issuers will notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Issuers fail to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Partnership or any of its
Subsidiaries may act as Paying Agent or Registrar.



The Issuers initially appoint The Depository Trust Company (“DTC”) to act as Depositary with
respect to the Global Notes.



The Issuers initially appoint the Trustee to act as the Registrar and Paying Agent and to act
as Custodian with respect to the Global Notes.



Section 2.04 Paying Agent to Hold Money in Trust.




The Issuers will require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium or interest on the Notes, and will notify the
Trustee of any default by the Issuers in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The
Issuers at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Issuers or a Subsidiary) will have
no further liability for the money. If the Partnership or a Subsidiary acts as Paying Agent, it
will segregate and hold in a separate trust fund for the benefit of the Holders all money held by
it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuers, the
Trustee will serve as Paying Agent for the Notes.



Section 2.05 Holder Lists.




The Trustee will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If
the Trustee is not the Registrar, the Issuers will furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the Trustee may request
in writing, a list in such form and as of such date as the Trustee may reasonably require of the
names and addresses of the Holders of Notes and the Issuers shall otherwise comply with TIA
§ 312(a).


 


26









 





Section 2.06 Transfer and Exchange.




(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a
whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Issuers for Definitive Notes if:




(1) the Issuers deliver to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Issuers within 120 days after the date of such notice from the Depositary;




(2) the Issuers in their sole discretion determine that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; provided that in no event shall the Regulation S Temporary Global
Note be exchanged by the Issuers for Definitive Notes prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant
to Rule 903(b)(3)(ii)(B) under the Securities Act; or




(3) there has occurred and is continuing a Default or Event of Default with respect to
the Notes.



Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a), however, beneficial interests in a
Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.



(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also will require compliance with either subparagraph (1) or (2)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:




(1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Temporary Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests
in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).


 


27









 






(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:




(A) both:




(i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged; and




(ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or




(B) both:




(i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged; and




(ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above;




provided that in no event shall Definitive Notes be issued upon the transfer
or exchange of beneficial interests in the Regulation S Temporary Global
Note prior to (A) the expiration of the Restricted Period and (B) the
receipt by the Registrar of any certificates required pursuant to Rule 903
under the Securities Act.



Upon consummation of an Exchange Offer by the Issuers in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of
such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.




(3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar
receives the following:




(A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof;


 


28









 






(B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Temporary Global Note or the Regulation S Permanent Global Note,
then the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and




(C) if the transferee will take delivery in the form of a beneficial interest
in the IAI Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.




(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(2) above and:




(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Issuers;




(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




(D) the Registrar receives the following:




(i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (1)(a) thereof; or




(ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.



If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate
one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate
principal amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.


 


29









 





Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.



(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.




(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:




(A) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;




(B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;




(C) if such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (2)
thereof;




(D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;




(E) if such beneficial interest is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if
applicable;




(F) if such beneficial interest is being transferred to the Issuers or any of
their Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or




(G) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,


 


30









 





the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Issuers shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized
denomination or denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall
be subject to all restrictions on transfer contained therein.




(2) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 2.06(c)(1)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred
to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.




(3) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:




(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144) of the Issuers;




(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




(D) the Registrar receives the following:




(i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or




(ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the
Private Placement Legend are no longer required in order to maintain compliance with
the Securities Act.


 


31









 






(4) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.
If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Issuers will execute and the Trustee will authenticate
and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) will be registered in such name or names and in
such authorized denomination or denominations as the holder of such beneficial interest
requests through instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(4) will not bear the Private
Placement Legend.



(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.




(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If
any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:




(A) if the Holder of such Restricted Definitive Note proposes to exchange such
Note for a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item (2)(b)
thereof;




(B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;




(C) if such Restricted Definitive Note is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;




(D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;




(E) if such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if
applicable;


 


32









 






(F) if such Restricted Definitive Note is being transferred to the Issuers or
any of their Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof; or




(G) if such Restricted Definitive Note is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,




the Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global
Note, in the case of clause (C) above, the Regulation S Global Note, and in all
other cases, the IAI Global Note.




(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:




(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Issuers;




(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




(D) the Registrar receives the following:




(i) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or




(ii) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.


 


33









 






Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Note.




(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.




If any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an
Unrestricted Global Note has not yet been issued, the Issuers will issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.



(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the
Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder must provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this Section
2.06(e).




(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:




(A) if the transfer will be made pursuant to Rule 144A, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;




(B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and




(C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.




(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:




(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Issuers;


 


34









 






(B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;




(C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or




(D) the Registrar receives the following:




(i) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or




(ii) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the Securities
Act.




(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such
a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.



(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Issuers will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will authenticate:




(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes accepted for
exchange in the Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Issuers; and




(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and
(C) they are not affiliates (as defined in Rule 144) of the Issuers.


 


35









 





Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Issuers will
execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.



(g) Legends. The following legends will appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions
of this Indenture.




(1) Private Placement Legend.




(A) Except as permitted by subparagraph (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:



“THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS NOTE
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.



THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF FERRELLGAS ESCROW LLC, FERRELLGAS FINANCE ESCROW
CORPORATION, FERRELLGAS, L.P. AND FERRELLGAS FINANCE CORP. THAT (A) THIS NOTE MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.”




(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or
(f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.




(2) Global Note Legend. Each Global Note will bear a legend in substantially the
following form:



“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND
(IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE ISSUERS.


 


36









 





UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUERS OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.”




(3) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Note
will bear a Legend in substantially the following form:



“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.”



(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be
returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note will be
increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.



(i) General Provisions Relating to Transfers and Exchanges.




(1) To permit registrations of transfers and exchanges, the Issuers will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.


 


37









 






(2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Issuers may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 3.10, 4.10, 4.15 and 9.05 hereof).




(3) The Registrar will not be required to register the transfer of or exchange of any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.




(4) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes will be the valid obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.




(5) Neither the Registrar nor the Issuers will be required:




(A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any selection
of Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection;




(B) to register the transfer of or to exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part; or




(C) to register the transfer of or to exchange a Note between a record date and
the next succeeding interest payment date.




(6) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Issuers may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Issuers shall be affected by notice to the contrary.




(7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.



All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by
facsimile.



Section 2.07 Replacement Notes.




If any mutilated Note is surrendered to the Trustee or the Issuers and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuers will issue
and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if
the Trustee’s requirements are met. If required by the Trustee or the Issuers, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuers to
protect the Issuers, the Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Issuers may charge for their expenses in replacing a
Note.


 


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Every replacement Note is an additional obligation of the Issuers and will be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.



Section 2.08 Outstanding Notes.




The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Issuers or an Affiliate of the Issuers holds the Note; however,
Notes held by the Issuers or a Subsidiary of the Issuers shall not be deemed to be outstanding for
purposes of Section 3.07(b) hereof.



If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.



If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to
be outstanding and interest on it ceases to accrue.



If the Paying Agent (other than the Issuers, a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date,
then on and after that date such Notes will be deemed to be no longer outstanding and will cease to
accrue interest.



Section 2.09 Treasury Notes.




In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Issuers, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Issuers, will be considered as though not outstanding, except that for the purposes of determining
whether the Trustee will be protected in relying on any such direction, waiver or consent, only
Notes that the Trustee knows are so owned will be so disregarded.



Section 2.10 Temporary Notes.




Until certificates representing Notes are ready for delivery, the Issuers may prepare and the
Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary
Notes will be substantially in the form of certificated Notes but may have variations that the
Issuers consider appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Issuers will prepare and the Trustee will authenticate
definitive Notes in exchange for temporary Notes.



Holders of temporary Notes will be entitled to all of the benefits of this Indenture.



Section 2.11 Cancellation.



The Issuers at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent will forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled
Notes (subject to the record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Notes will be delivered to the Issuers. The Issuers may not issue new
Notes to replace Notes that they have paid or that have been delivered to the Trustee for
cancellation.


 


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Section 2.12 Defaulted Interest.




If the Issuers default in a payment of interest on the Notes, they will pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Issuers will notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Issuers will fix or cause to be fixed each such special record date and
payment date, provided that no such special record date may be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Issuers (or, upon the written request of the Issuers, the Trustee in the name and at the
expense of the Issuers) will mail or cause to be mailed to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be paid.



ARTICLE 3.

REDEMPTION AND PREPAYMENT




Section 3.01 Notices to Trustee.




If the Issuers elect to redeem Notes pursuant to the optional redemption provisions of Section
3.07 hereof, they must furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officers’ Certificate setting forth:




(1) the clause of this Indenture pursuant to which the redemption shall occur;




(2) the redemption date;




(3) the principal amount of Notes to be redeemed; and




(4) the redemption price.



Section 3.02 Selection of Notes to Be Redeemed or Purchased.




If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Trustee will select Notes for redemption or purchase as follows:




(1) if the Notes are listed on any national securities exchange, in compliance with the
requirements of the principal national securities exchange on which the Notes are listed; or




(2) if the Notes are not listed on any national securities exchange, on a pro rata
basis, by lot or in accordance with a method which the Trustee shall deem fair and
appropriate.



In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or
purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption or purchase date by the Trustee from the outstanding Notes not
previously called for redemption or purchase.



The Trustee will promptly notify the Issuers in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase, the principal
amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in
amounts of $1,000 or whole multiples of $1,000; except that if all of the Notes of a Holder are to
be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a
multiple of $1,000, shall be redeemed or purchased. Except as provided in the preceding sentence,
provisions of this Indenture that
apply to Notes called for redemption or purchase also apply to portions of Notes called for
redemption or purchase.


 


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Section 3.03 Notice of Redemption.




Subject to the provisions of Sections 3.09 and 3.10 hereof, at least 10 days but not more than
60 days before a redemption date, the Issuers will mail or cause to be mailed, by first class mail,
a notice of redemption to each Holder whose Notes are to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 10 of this Indenture.



The notice will identify the Notes to be redeemed and will state:




(1) the redemption date;




(2) the redemption price;




(3) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;




(4) the name and address of the Paying Agent;




(5) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;




(6) that, unless the Issuers default in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;




(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and




(8) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.



At the Issuers’ request, the Trustee will give the notice of redemption in the Issuers’ name
and at their expense; provided, however, that the Issuers have delivered to the Trustee, at least
45 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice as provided in the
preceding paragraph.



Section 3.04 Effect of Notice of Redemption.




Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.



Section 3.05 Deposit of Redemption or Purchase Price.




One Business Day prior to or on the redemption or purchase price date, the Issuers will
deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of
and accrued interest on all Notes to be redeemed or purchased on that date. The Trustee or
the Paying Agent will promptly return to the Issuers any money deposited with the Trustee or the
Paying Agent by the Issuers in excess of the amounts necessary to pay the redemption or purchase
price of, and accrued interest on, all Notes to be redeemed or purchased.


 


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If the Issuers comply with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes
called for redemption or purchase. If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is not so paid upon
surrender for redemption or purchase because of the failure of the Issuers to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or
purchase date until such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.



Section 3.06 Notes Redeemed or Purchased in Part.




Upon surrender of a Note that is redeemed or purchased in part, the Issuers will issue and,
upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Issuers a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.



Section 3.07 Optional Redemption.




(a) At any time on or before May 1, 2007, the Partnership may on any one or more occasions
redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture at a
redemption price of 106.750% of the principal amount thereof, plus accrued and unpaid interest to
the applicable redemption date, with the net cash proceeds of one or more Equity Offerings
completed by the Partnership; provided that:




(1) at least 65% of the aggregate principal amount of Notes issued under this Indenture
(including any Additional Notes), are outstanding immediately following the redemption; and




(2) the redemption must occur within 90 days of the closing of such Equity Offering.



(b) Except pursuant to the preceding paragraph, the Notes are not redeemable at the Issuers’
option prior to May 1, 2009.



(c) On and after May 1, 2009, the Issuers may redeem the Notes, in whole or in part, upon not
less than 30 nor more than 60 days’ notice, at the redemption prices (expressed in percentages of
principal amount) listed in the table below, plus accrued and unpaid interest on the Notes to the
applicable redemption date, if redeemed during the twelve months beginning on May 1 of the years
indicated below:



	 	 	 	 	 
	Year	 	Percentage	 
	2009
	 	 	103.375	%
	2010
	 	 	102.250	%
	2011
	 	 	101.125	%
	2012 and thereafter
	 	 	100.000	%





(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Section 3.01 through 3.06 hereof.



 


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Section 3.08 Mandatory Redemption.




Except as described in Section 3.09, the Issuers are not required to make any mandatory
redemption or sinking fund payments with respect to the Notes. The Issuers may at any time and
from time to time purchase Notes in the open market or otherwise.



Section 3.09 Special Mandatory Redemption.




(a) The Escrow Property, in an aggregate amount of $254,921,875.00, representing the gross
proceeds from the issuance and sale of the Notes, after deducting discounts and commissions but
before other expenses, of $243,487,918.75 together with $11,433,956.25 deposited by the Issuers,
will be held by the Escrow Agent in the Escrow Account pursuant to the Escrow and Security
Agreement. The Escrow Property will be invested as provided in the Escrow and Security Agreement.



(b) Pursuant to the Escrow and Security Agreement, if (i) the conditions contained in Section
I.4(b) of the Escrow and Security Agreement have not been satisfied by August 5, 2004 or (ii) the
Contribution Agreement is terminated prior to August 5, 2004, the Issuers will cause a notice of
special mandatory redemption to be mailed not later than the next Business Day following August 5,
2004 or following the date the Contribution Agreement is terminated, as applicable, and will redeem
the Notes not later than five Business Days following the date of the notice of the special
mandatory redemption, at a redemption price equal to 100% of the principal amount of Notes, plus
accrued and unpaid interest, to, but not including the redemption date.



(c) Immediately upon receipt by the Paying Agent of the Escrow Property, the Trustee will
notify the Holders of the date fixed for special mandatory redemption pursuant to this Section
3.09.



(d) Other than as specifically provided in this Section 3.09, any redemption pursuant to this
Section 3.09 will be made pursuant to the provisions of Section 3.04 through 3.05 hereof.



Section 3.10 Offer to Purchase by Application of Excess Proceeds.




In the event that, pursuant to Section 4.10 hereof, the Issuers are required to commence an
offer to all Holders to purchase Notes (an “Asset Sale Offer”), they will follow the procedures
specified below.



The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that
is pari passu with the Notes containing provisions similar to those set forth in this Indenture
with respect to offers to purchase or redeem with the proceeds of sales and assets. The Asset Sale
Offer will remain open for a period of at least 20 Business Days following its commencement and not
more than 30 Business Days, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than three Business Days after the termination of the Offer Period
(the “Purchase Date”), the Issuers will apply all Excess Proceeds (the “Offer Amount”) to the
purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or,
if less than the Offer Amount has been tendered, all
Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased will be made in the same manner as interest payments are made.


 


43









 





If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a
Note is registered at the close of business on such record date, and no additional interest will be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.



Upon the commencement of an Asset Sale Offer, the Issuers will send, by first class mail, a
notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain
all instructions and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:




(1) that the Asset Sale Offer is being made pursuant to this Section 3.10 and Section
4.10 hereof and the length of time the Asset Sale Offer will remain open;




(2) the Offer Amount, the purchase price and the Purchase Date;




(3) that any Note not tendered or accepted for payment will continue to accrue
interest;




(4) that, unless the Issuers default in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase
Date;




(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in integral multiples of $1,000 only;




(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer
will be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the
Issuers, a Depositary, if appointed by the Issuers, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;




(7) that Holders will be entitled to withdraw their election if the Issuers, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note purchased;




(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered by Holders exceeds the Offer Amount, the Issuers will select the Notes and other
pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of
Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be
deemed appropriate by the Issuers so that only Notes in denominations of $1,000, or integral
multiples thereof, will be purchased); and




(9) that Holders whose Notes were purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).


 


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On or before the Purchase Date, the Issuers will, to the extent lawful, accept for payment, on
a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to
the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions
thereof were accepted for payment by the Issuers in accordance with the terms of this Section 3.10.
The Issuers, the Depositary or the Paying Agent, as the case may be, will promptly (but in any
case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuers
for purchase, and the Issuers will promptly issue a new Note, and the Trustee, upon written request
from the Issuers will authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers will publicly
announce the results of the Asset Sale Offer on the Purchase Date.



Other than as specifically provided in this Section 3.10, any purchase pursuant to this
Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.



ARTICLE 4.

COVENANTS




Section 4.01 Payment of Notes.




The Issuers will pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest will be considered paid on the date due if the Paying Agent, if other than the Issuers or
a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Issuers in immediately available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due.



The Issuers will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; they will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the extent lawful.



Section 4.02 Maintenance of Office or Agency.




The Issuers will maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Issuers in respect of the Notes and this Indenture may be
served. The Issuers will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Issuers fail to maintain any such
required office or agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee.



The Issuers may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or rescission will in any
manner relieve the Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Issuers will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



The Issuers hereby designate the Corporate Trust Office of the Trustee as one such office or
agency of the Issuers in accordance with Section 2.03 hereof.


 


45









 





Section 4.03 Reports.




(a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Issuers will furnish to the Holders of Notes, within the time periods specified in
the SEC’s rules and regulations:




(1) all quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuers were required to
file such forms, including a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and, with respect to the annual financial information only, a
report thereon by the Issuers’ certified independent accountants; and




(2) all current reports that would be required to be filed with the SEC on Form 8-K if
the Issuers were required to file such reports.



In addition, whether or not required by the rules and regulations of the SEC, the Issuers will
file a copy of all of the information and reports referred to in clauses (1) and (2) above with the
SEC for public availability within the time periods specified in the SEC’s rules and regulations
(unless the SEC will not accept such a filing) and make such information available to investors who
request it in writing. The Issuers will promptly furnish to Holders of Notes notices of (a) any
Payment Default under any instrument evidencing Indebtedness for borrowed money, and (b) any
acceleration of such Indebtedness prior to its express maturity. The Issuers will at all times
comply with TIA § 314(a).



Section 4.04 Compliance Certificate.




(a) The Issuers shall deliver to the Trustee, within 90 days after the end of each fiscal
year, an Officers’ Certificate stating that a review of the activities of the Issuers and their
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Issuers has kept, observed, performed and fulfilled
their obligations under this Indenture, and further stating, as to each such Officer signing such
certificate, that, to the best of his or her knowledge, the Issuers have kept, observed, performed
and fulfilled each and every covenant contained in this Indenture and are not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default has occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Issuers are taking or propose to take with
respect thereto) and that, to the best of his or her knowledge, no event has occurred and remains
in existence by reason of which payments on account of the principal of or interest, if any, on the
Notes is prohibited or if such event has occurred, a description of the event and what action the
Issuers are taking or propose to take with respect thereto.



(b) So long as not contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered pursuant to Section
4.03(a) above shall be accompanied by a written statement of the Issuers’ independent public
accountants (who shall be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to their attention that
would lead them to believe that the Issuers have violated any provisions of Article 4 or Article 5
hereof or, if any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.



(c) So long as any of the Notes are outstanding, the Issuers will deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate
specifying such Default or Event of Default and what action the Issuers are taking or propose
to take with respect thereto.


 


46









 





Section 4.05 Taxes.




The Issuers will pay, and will cause each of their Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.



Section 4.06 Stay, Extension and Usury Laws.




The Issuers covenant (to the extent that they may lawfully do so) that they will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Issuers (to the extent that they
may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant
that they will not, by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every such power as
though no such law has been enacted.



Section 4.07 Restricted Payments.




(a) The Partnership will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, (all such payments and other actions set forth in these clauses (1) through
(4) below being collectively referred to as a “Restricted Payment”):




(1) declare or pay any dividend or any other distribution or payment on or with respect
to Capital Stock of the Partnership or any of its Restricted Subsidiaries or any payment
made to the direct or indirect holders, in their capacities as such, of Capital Stock of the
Partnership or any of its Restricted Subsidiaries other than (a) dividends or distributions
payable solely in Capital Stock of the Partnership (excluding Redeemable Capital Stock), or
in options, warrants or other rights to purchase Capital Stock of the Partnership (excluding
Redeemable Capital Stock); (b) dividends or other distributions to the extent declared or
paid to the Partnership or any Restricted Subsidiary of the Partnership; or (c) dividends or
other distributions by any Restricted Subsidiary of the Partnership to all holders of
Capital Stock of that Restricted Subsidiary on a pro rata basis, including to the General
Partner of the Partnership;




(2) purchase, redeem, defease or otherwise acquire or retire for value any Capital
Stock of the Partnership or any of its Restricted Subsidiaries, other than any Capital Stock
owned the Partnership or a Restricted Subsidiary of the Partnership;




(3) make any principal payment on, or purchase, defease, repurchase, redeem or
otherwise acquire or retire for value, prior to any scheduled maturity, scheduled repayment,
scheduled sinking fund payment or other stated maturity, any subordinated Indebtedness,
other than any such Indebtedness owned by the Partnership or a Restricted Subsidiary of the
Partnership; or




(4) make any investment, other than a Permitted Investment, in any entity,



unless, at the time of and after giving effect to such Restricted Payment:




(1) no Default or Event of Default has occurred and is continuing; and


 


47









 






(2) the Restricted Payment, together with the aggregate of all other Restricted
Payments made by the Partnership and its Restricted Subsidiaries during the fiscal quarter
during which the Restricted Payment is made will not exceed:




(A) if the Consolidated Fixed Charge Coverage Ratio of the Partnership is
greater than 1.75 to 1.00, an amount equal to Available Cash for the immediately
preceding fiscal quarter; or




(B) if the Consolidated Fixed Charge Coverage Ratio of the Partnership is equal
to or less than 1.75 to 1.00, an amount equal to the sum of $50 million, less the
aggregate amount of all Restricted Payments made by the Partnership and its
Restricted Subsidiaries in accordance with this clause during the period ending on
the last day of the fiscal quarter of the Partnership immediately preceding the date
of the Restricted Payment and beginning on the first day of the sixteenth full
fiscal quarter immediately preceding the date of the Restricted Payment plus the
aggregate net cash proceeds of capital contributions to the Partnership from any
Person other than a Restricted Subsidiary of the Partnership, or issuance and sale
of shares of Capital Stock, other than Redeemable Capital Stock, of the Partnership
to any entity other than to a Restricted Subsidiary of the Partnership, in any case
made during the period ending on the last day of the fiscal quarter of the
Partnership immediately preceding the date of the Restricted Payment and beginning
on the first day of the sixteenth full fiscal quarter immediately preceding the date
of the Restricted Payment.



(b) The provisions of Section 4.07(a) will not prohibit:




(1) the payment of any dividend or distribution within 60 days after the date of its
declaration if, at the date of declaration, the payment would be permitted as stated above;




(2) the redemption, repurchase or other acquisition or retirement of any shares of any
class of Capital Stock of the Partnership or any Restricted Subsidiary of the Partnership in
exchange for, or out of the net cash proceeds of, a substantially concurrent capital
contribution to the Partnership from any entity other than a Restricted Subsidiary of the
Partnership; or issuance and sale of other Capital Stock, other than Redeemable Capital
Stock, of the Partnership to any entity other than to a Restricted Subsidiary of the
Partnership; provided, however, that the amount of any net cash proceeds that are utilized
for any redemption, repurchase or other acquisition or retirement will be excluded from the
calculation of Available Cash; or




(3) any redemption, repurchase or other acquisition or retirement of subordinated
Indebtedness in exchange for, or out of the net cash proceeds of, a substantially concurrent
capital contribution to the Partnership from any entity other than a Restricted Subsidiary
of the Partnership; or issuance and sale of Indebtedness of the Partnership issued to any
entity other than a Restricted Subsidiary or the Partnership, so long as the Indebtedness is
Permitted Refinancing Indebtedness; provided, however, that the amount of any net cash
proceeds that are utilized for any redemption, repurchase or other acquisition or retirement
will be excluded from the calculation of Available Cash.



In computing the amount of Restricted Payments in Section 4.07(a) above, the Restricted
Payments permitted by clause (1) of this paragraph (b) will be included and the Restricted Payments
permitted by clauses (2) and (3) of this paragraph (b) will not be included.



The amount of all Restricted Payments (other than cash) will be the fair market value on the
date of the Restricted Payment of the assets proposed to be transferred by the Partnership or such
Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of
any assets that are required to be valued by this Section 4.07 will be determined in good faith by
an authorized financial officer of the General Partner on the date of the Restricted Payment of the
assets proposed to be transferred.


 


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Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.




(a) The Partnership will not, and will not permit any of its Restricted Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary to:




(1) pay dividends, in cash or otherwise, or make any other distributions on or with
respect to its Capital Stock or any other interest or participation in, or measured by, its
profits;




(2) pay any Indebtedness owed to the Partnership or any other Restricted Subsidiary;




(3) make loans or advances to, or any investment in, the Partnership or any other
Restricted Subsidiary;




(4) transfer any of its properties or assets to the Partnership or any other Restricted
Subsidiary; or




(5) guarantee any Indebtedness of the Partnership or any other Restricted Subsidiary.



All such restrictions and other actions set forth in these clauses (1) through (5) above being
collectively referred to as “Payment Restrictions.”



(b) The provisions of Section 4.08(a) will not apply to (and therefore the following are
permitted) encumbrances or restrictions existing under or by reason of:




(1) applicable law;




(2) any agreement in effect at or entered into on the date of this Indenture or any
agreement relating to any Indebtedness permitted to be incurred under this Indenture
(including agreements or instruments evidencing Indebtedness incurred after the date of this
Indenture); provided, however, that the encumbrances and restrictions contained in the
agreements governing such permitted Indebtedness are no more restrictive with respect to the
Payment Restrictions than those set forth in the agreements governing the Partnership’s
existing Indebtedness as in effect on the date of this Indenture;




(3) customary non-assignment provisions of any contract or any lease governing a
leasehold interest of the Partnership or any Restricted Subsidiary;




(4) specific purchase money obligations or Capital Leases for property subject to such
obligations;




(5) any agreement of an entity (or any it its Restricted Subsidiaries) acquired by the
Partnership or any Restricted Subsidiary, in existence at the time of the acquisition but
not created in contemplation of the acquisition, which encumbrance or restriction is not
applicable to any third party other than the entity; or


 


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(6) provisions contained in instruments relating to Indebtedness which prohibit the
transfer of all or substantially all of the assets of the obligor of the Indebtedness unless
the transferee shall assume the obligations of the obligor under the agreement or
instrument.



Section 4.09 Incurrence of Indebtedness.




(a) The Partnership will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or in any manner become directly or
indirectly liable, contingently or otherwise, for the payment, in each case, to “incur,” any
Indebtedness, unless at the time of the incurrence and after giving pro forma effect to the receipt
and application of the proceeds of the Indebtedness, the Consolidated Fixed Charge Coverage Ratio
of the Partnership is greater than 2.00 to 1.00.



(b) The provisions of Section 4.09(a) will not prohibit the incurrence by the Partnership and
its Restricted Subsidiary of any of the following items of Indebtedness (collectively, “Permitted
Indebtedness”):




(1) Indebtedness outstanding as of the date of this Indenture;




(2) Indebtedness of the Partnership or a Restricted Subsidiary incurred for the making
of expenditures for the improvement or repair, to the extent the improvements or repairs may
be capitalized in accordance with GAAP, or additions, including by way of acquisitions of
businesses and related assets, to the property and assets of the Partnership and its
Restricted Subsidiaries, including, without limitation, the acquisition of assets subject to
operating leases, Indebtedness incurred under the Credit Facilities, or incurred by
assumption in connection with additions, including additions by way of acquisitions or
capital contributions of businesses and related assets, to the property and assets of the
Partnership and its Restricted Subsidiaries; provided, that the aggregate principal amount
of this Indebtedness outstanding at any time may not exceed $75 million;




(3) Indebtedness of the Partnership or a Restricted Subsidiary (a) incurred for any
purpose permitted under the Credit Facilities, or (b) owing in respect of any Accounts
Receivable Securitization, operating lease, or other off-balance sheet obligation existing
on the date of this Indenture that arises because, after the date of this Indenture, such
off-balance sheet obligations are refinanced with Indebtedness, provided, that the aggregate
principal amount of this Indebtedness outstanding under this clause at any time may not
exceed an amount equal to the sum of (x) $400 million plus (y) the amount, if any, by which
the Borrowing Base as of the date of calculation exceeds the amount of the Borrowing Base as
of December 31, 2003;




(4) Indebtedness of the Partnership owed to the General Partner or an Affiliate of the
General Partner that is unsecured and that is subordinated in right of payment to the Notes;
provided, that the aggregate principal amount of this Indebtedness outstanding at any time
under this clause may not exceed $50 million and this Indebtedness has a final maturity date
later than the final maturity date of the Notes;




(5) Indebtedness owed by the Partnership to any Restricted Subsidiary or owed by any
Restricted Subsidiary to the Partnership or to any other Restricted Subsidiary;




(6) Permitted Refinancing Indebtedness (including, for the avoidance of doubt,
Indebtedness incurred as permitted under the Consolidated Fixed Charge Coverage Ratio set
forth in Section 4.09(a) above);


 


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(7) the incurrence by the Partnership or a Restricted Subsidiary of Indebtedness owing
directly to its insurance carriers, without duplication, in connection with the
Partnership’s, its Subsidiaries’ or its Affiliates’ self-insurance programs or other similar
forms of retained insurable risks for their respective businesses, consisting of reinsurance
agreements and indemnification agreements, and guarantees of the foregoing, secured by
letters of credit; provided, that any Consolidated Fixed Charges associated with the
Indebtedness evidenced by the reinsurance agreements, indemnification agreements, guarantees
and letters of credit will be included, without duplication, in any determination of the
Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.09(a) above;




(8) Indebtedness of the Partnership and its Restricted Subsidiaries in respect of
Capital Leases, meaning, generally, any lease of any property which would be required to be
classified and accounted for as a capital lease on a balance sheet of the lessor; provided,
that the aggregate amount of this Indebtedness outstanding at any time may not exceed $15
million;




(9) Indebtedness of the Partnership and its Restricted Subsidiaries represented by
letters of credit supporting (a) obligations under workmen’s compensation laws, (b)
obligations to suppliers of propane or energy commodity derivative providers in the ordinary
course of business consistent with past practices not to exceed $10 million at any one time
outstanding and (c) the repayment of Indebtedness permitted to be incurred under this
Indenture;




(10) surety bonds and appeal bonds required in the ordinary course of business or in
connection with the enforcement of rights or claims of the Partnership or any of its
Subsidiaries or in connection with judgments that do not result in a Default or Event of
Default;




(11) Indebtedness of the Partnership or its Restricted Subsidiaries incurred in
connection with acquisitions of retail propane businesses in favor of the sellers of such
businesses in an aggregate principal amount not to exceed $15 million in any fiscal year and
not to exceed $60 million at any one time outstanding; provided, that the principal amount
of such Indebtedness incurred in connection with any such acquisition shall not exceed the
fair market value of the assets so acquired and, to the extent issued by the Partnership,
such Indebtedness is expressly subordinated to the Notes; and




(12) the Notes (other than Additional Notes) and the Exchange Notes.



For purposes of determining compliance with this Section 4.09, in the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness
described in clauses (1) through (12) above or is entitled to be incurred in compliance with the
Consolidated Fixed Charge Coverage Ratio pursuant to Section 4.09(a) above, the Partnership, may,
in its sole discretion, classify (or later reclassify) in whole or in part such items of
Indebtedness in any manner that complies with this Section 4.09, and such item of Indebtedness or a
portion thereof may be classified (or later reclassified) in whole or in part as having been
incurred under more than one of the applicable clauses of Permitted Indebtedness or in compliance
with the Consolidated Fixed Charge Coverage Ratio set forth in Section 4.09(a) above.



Section 4.10 Asset Sales.




The Partnership will not, and will not permit any of its Restricted Subsidiaries to, complete
an Asset Sale unless:




(1) the Partnership or its Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market value, as
determined
in good faith by an authorized financial officer of the General Partner, of the assets
sold or otherwise disposed of; and


 


51









 






(2) at least 75% of the consideration therefor received by the Partnership or such
Restricted Subsidiary is in the form of cash.



For purposes of determining the amount of cash received in an Asset Sale, each of the
following shall be deemed to be cash:




(1) the amount of any liabilities on the Partnership’s or any Restricted Subsidiary’s
balance sheet that are assumed by the transferee of the assets; and




(2) the amount of any notes or other obligations received by the Partnership or the
Restricted Subsidiary from the transferee that is converted within 180 days by the
Partnership or the Restricted Subsidiary into cash, to the extent of the cash received.



Furthermore, the 75% limitation will not apply to any Asset Sale in which the cash portion of
the consideration received is equal to or greater than the after-tax proceeds would have been had
the Asset Sale complied with the 75% limitation.



If the Partnership or any of its Restricted Subsidiaries receives Net Proceeds exceeding $10
million from one or more Asset Sales in any fiscal year, then within 340 days after the date the
aggregate amount of Net Proceeds exceeds $10 million, the Partnership must apply the amount of such
Net Proceeds either:




(1) to reduce Indebtedness of the Partnership or any of its Restricted Subsidiaries,
with a permanent reduction of availability in the case of revolving Indebtedness; or




(2) to make an investment in assets or capital expenditures useful to the Partnership’s
or any of its Subsidiaries’ business as in effect on the date of this Indenture or business
related or ancillary thereto.



Pending the final application of any such Net Proceeds, the Partnership or any Restricted
Subsidiary may temporarily reduce borrowings under the Credit Facilities or otherwise invest such
Net Proceeds in any manner that is not prohibited by this Indenture.



Any Net Proceeds from Asset Sales that are not applied or invested as provided above will be
considered “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $10 million,
within 15 days thereof, the Issuers will make an Asset Sale Offer to all Holders of Notes and all
holders of other Indebtedness outstanding that is pari passu with the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to purchase or redeem with the
proceeds of sales of assets in accordance with Section 3.10 hereof to purchase for cash the maximum
principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the
Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount
plus accrued and unpaid interest to the date of purchase. To the extent that the aggregate amount
of Notes tendered in response to the Issuers’ purchase offer is less than the Excess Proceeds, the
Partnership or any Restricted Subsidiary may use such deficiency for general business purposes. If
the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such
Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such
other pari passu Indebtedness to be purchased on pro rata basis in proportion to the aggregate
principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each
Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.


 


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The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
Sections 3.10 or 4.10 of this Indenture, the Issuers will comply with the applicable securities
laws and regulations and will not be deemed to have breached their obligations under those
provisions of this Indenture by virtue of such conflict.



Section 4.11 Transactions with Affiliates.




(a) The Partnership will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into or suffer to exist any transaction or series of related
transactions, including the sale, transfer, disposition, purchase, exchange or lease of assets,
property or services, other than as provided for in the partnership agreement or other
organizational documents, as applicable, and the other agreements entered into between the
Partnership and any of its Affiliates, with, or for the benefit of, any Affiliates of the
Partnership (each an “Affiliate Transaction”), unless:




(1) the transaction or series of related transactions are between the Partnership and
its Restricted Subsidiaries or between two Restricted Subsidiaries; or




(2) the transaction or series of related transactions are on terms that are no less
favorable to the Partnership or the Restricted Subsidiary, as the case may be, than those
which would have been obtained in a comparable transaction at such time from an entity that
is not an Affiliate of the Partnership or Restricted Subsidiary, and, with respect to
transaction(s) involving aggregate payments or value equal to or greater than $20 million,
the Partnership delivers an Officers’ Certificate to the Trustee certifying that the
transaction(s) is on terms that are no less favorable to the Partnership or the Restricted
Subsidiary than those which would have been obtained from an entity that is not an Affiliate
of the Partnership or Restricted Subsidiary and has been approved by a majority of the Board
of Directors of the General Partner, including a majority of the disinterested directors.



(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will
not be subject to the provisions of Section 4.11(a) or otherwise be restricted by this Indenture or
the Notes:




(1) any employment agreement, stock option agreement, restricted stock agreement,
employee stock ownership plan related agreements, or similar agreement and arrangements, in
the ordinary course of business;




(2) transactions permitted by Section 4.07 hereof;




(3) transactions in the ordinary course of business in connection with reinsuring the
self-insurance programs or other similar forms of retained insurable risks of the retail
propane business operated by the Partnership, its Subsidiaries and Affiliates;




(4) any Accounts Receivable Securitization;




(5) any affiliate trading transactions done in the ordinary course of business;




(6) any transaction that is a Flow-Through Acquisition;


 


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(7) transactions entered into in connection with the Escrow Mergers and the merger of
Blue Rhino LLC into the Partnership; and




(8) transactions contemplated by the Contribution Agreement.



Section 4.12 Liens.




The Partnership will not, and will not permit any of its Restricted Subsidiaries to incur any
Liens or other encumbrance, unless the Lien is a Permitted Lien or the Notes are directly secured
equally and ratably with the obligation or liability secured by such Lien.



Section 4.13 Corporate Existence.




Subject to Article 5 hereof, the Partnership shall do or cause to be done all things necessary
to preserve and keep in full force and effect:




(1) its partnership existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Partnership or any such
Restricted Subsidiary; and




(2) the rights (charter and statutory), licenses and franchises of the Partnership and
its Restricted Subsidiaries; provided, however, that the Partnership shall not be required
to preserve any such right, license or franchise, or the corporate, partnership or other
existence of any of its Restricted Subsidiaries, if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the business of the
Partnership and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders of the Notes.



Section 4.14 Offer to Repurchase Upon Change of Control.




(a) Upon the occurrence of a Change of Control, the Issuers will make an offer (a “Change of
Control Offer”) to each Holder to repurchase, in cash, all or any part (equal to $1,000 or an
integral multiple of $1,000) of that Holder’s Notes at a purchase price equal to 101% of the
aggregate principal amount of the Notes or portion of Notes validly tendered for payment thereof
plus accrued and unpaid interest on the Notes repurchased, if any, to the date of purchase (the
“Change of Control Payment”). Within 30 days following any Change of Control, the Issuers will mail
a notice to each Holder describing the transaction or transactions that constitute the Change of
Control and stating:




(1) that the Change of Control Offer is being made pursuant to this Section 4.14 and
that all Notes tendered will be accepted for payment;




(2) the purchase price and the purchase date, which shall be no later than 30 Business
Days from the date such notice is mailed (the “Change of Control Payment Date”);




(3) that any Note not tendered will continue to accrue interest;




(4) that, unless the Issuers defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue
interest after the Change of Control Payment Date;


 


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(5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date;




(6) that Holders will be entitled to withdraw any election to have their Notes
purchased if the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is withdrawing his election to have
the Notes purchased; and




(7) that Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an integral multiple
thereof.



The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change in Control. To
the extent that the provisions of any securities laws or regulations conflict with the provisions
of Sections 3.10 or 4.14 of this Indenture, the Issuers will comply with the applicable securities
laws and regulations and will not be deemed to have breached their obligations under Section 3.10
or this Section 4.14 by virtue of such conflict.



(b) On the Change of Control Payment Date, the Issuers will, to the extent lawful:




(1) accept for payment all Notes or portions thereof properly tendered in accordance
with the Change of Control Offer;




(2) deposit an amount equal to the Change of Control Payment for the Notes with the
Paying Agent in respect of all Notes or portions of Notes properly tendered; and




(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with
an Officers’ Certificate stating the aggregate principal amount of Notes or portions of
Notes being tendered to the Issuers.



The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of
Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each new Note will be in a principal amount
of $1,000 or an integral multiple thereof. The Issuers will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.



(c) Notwithstanding anything to the contrary in this Section 4.14, the Issuers will not be
required to make a Change of Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.14 and Section 3.10 hereof and purchases all Notes
properly tendered and not withdrawn under the Change of Control Offer.


 


55









 





Section 4.15 Limitation on Sale and Leaseback Transactions.



The Partnership will not, and will not permit any of its Restricted Subsidiaries to, enter
into any Sale and Leaseback Transaction with respect to their properties unless the Partnership or
the Restricted Subsidiary is permitted under this Indenture to incur Indebtedness secured by a Lien
on the property in an amount equal to the Attributable Debt with respect to the Sale and Leaseback
Transaction.



Section 4.16 Limitation on Finance Corp. and Escrow Finance Corp.




In addition to the restrictions set forth under Section 4.09 hereof, Finance Corp. and Escrow
Finance Corp. will not incur any Indebtedness unless:




(1) the Partnership is a co-obligor or guarantor of the Indebtedness; or




(2) the net proceeds of the Indebtedness are either lent to the Partnership, used to
acquire outstanding debt securities issued by the Partnership, or used, directly or
indirectly, to refinance or discharge Indebtedness permitted under the limitation of this
Section 4.16.



Finance Corp. and Escrow Finance Corp. will not engage in any business not related, directly
or indirectly, to obtaining money or arranging financing for the Partnership.



Section 4.17 Limitation on Other Activities.




Notwithstanding anything in this Indenture to the contrary, prior to the consummation of the
Escrow Mergers, Escrow LLC and Escrow Finance Corp. will not engage in any business operations or
other activities, other than those contemplated in connection with the Notes, the Escrow Mergers
and the Escrow and Security Agreement.



ARTICLE 5.

SUCCESSORS




Section 5.01 Merger, Consolidation, or Sale of Assets.




The Partnership shall not consolidate or merge with or into, or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or assets, in one or more
related transactions, to another entity unless:




(1) the Partnership is the surviving entity or the entity formed by or surviving the
transaction, if other than the Partnership, or the entity to which the sale was made is a
corporation or partnership organized or existing under the laws of the United States, any
state thereof or the District of Columbia;




(2) the entity formed by or surviving the transaction, if other than the Partnership,
or the entity to which the sale was made assumes all the obligations of the Partnership in
accordance with a supplemental indenture in a form reasonably satisfactory to the Trustee,
under the Notes and this Indenture;




(3) immediately after the transaction, no Default or Event of Default exists; and




(4) at the time of the transaction and after giving pro forma effect to it as if the
transaction had occurred at the beginning of the applicable four-quarter period, the
Partnership or such other entity or survivor is permitted to incur at least $1.00 of
additional Indebtedness in
accordance with the Consolidated Fixed Charge Coverage Ratio described in Section
4.09(a) hereof.


 


56









 





This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other
disposition of assets between or among the Partnership and any of its Restricted Subsidiaries.
Finance Corp. will not consolidate or merge with or into, whether or not it is the surviving
entity, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions to, another entity except under
conditions similar to those described in the paragraph above.



Notwithstanding the foregoing, clauses (3) and (4) of the first paragraph of this covenant
will not apply to the Escrow Mergers.



Section 5.02 Successor Corporation Substituted.




Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Partnership or Finance Corp. in
a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof,
the successor corporation formed by such consolidation or into or with which the Partnership or
Finance Corp., as applicable, is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the “Partnership” or “Finance Corp.,” as applicable,
shall refer instead to the successor corporation and not to Partnership or Finance Corp., as
applicable), and may exercise every right and power of the Partnership or Finance Corp., as
applicable, under this Indenture with the same effect as if such successor Person had been named as
the Partnership or Finance Corp., as applicable, herein; provided, however, that Partnership or
Finance Corp., as applicable, shall not be relieved from the obligation to pay the principal of and
interest on the Notes except in the case of a sale of all of assets of the Partnership or Finance
Corp., as applicable, in a transaction that is subject to, and that complies with the provisions
of, Section 5.01 hereof.



ARTICLE 6.

DEFAULTS AND REMEDIES




Section 6.01 Events of Default.




Each of the following is an “Event of Default”:




(1) default in the payment of the principal of or premium, if any, on any Note when the
same becomes due and payable, upon stated maturity, acceleration, optional redemption,
required purchase, scheduled principal payment or otherwise;




(2) default in the payment of an installment of interest on any of the Notes, when the
same becomes due and payable, which default continues for a period of 30 days;




(3) failure to perform or observe any other term, covenant or agreement contained in
the Notes or this Indenture, other than a default specified in either Section 6.01(1) or (2)
above, and the default continues for a period of 45 days after written notice of the default
requiring the Issuers to remedy the same will have been given to the Partnership by the
Trustee or to the Issuers and the Trustee by Holders of at least 25% in aggregate principal
amount of the Notes then outstanding;




(4) failure to perform or observe any material term, covenant or agreement contained in
the Escrow and Security Agreement;


 


57









 






(5) default or defaults under one or more agreements, instruments, mortgages, bonds,
debentures or other evidences of Indebtedness under which the Partnership or any Restricted
Subsidiary of the Partnership then has outstanding Indebtedness in excess of $10 million, if
the default:




(a) is caused by a failure to pay principal of or premium, if any, or interest on to
such Indebtedness within the applicable grace period, if any, provided with respect to such
Indebtedness; or




(b) results in the acceleration of such Indebtedness prior to its stated maturity;




(6) the Escrow and Security Agreement or any other security document or any Lien
purported to be granted thereby on the Escrow Account or the cash or escrow investments
therein is held in any judicial proceeding to be unenforceable or invalid, in whole or in
part, or ceases for any reason (other than pursuant to a release that is delivered or
becomes effective as set forth in the Escrow and Security Agreement or this Indenture) to be
fully enforceable and perfected;




(7) a final judgment or judgments, which is or are non-appealable and non-reviewable or
which has or have not been stayed pending appeal or review or as to which all rights to
appeal or review have expired or been exhausted, shall be rendered against the Partnership,
any Restricted Subsidiary, or the General Partner provided such judgment or judgments
requires or require the payment of money in excess of $10 million in the aggregate and is
not covered by insurance or discharged or stayed pending appeal or review within 60 days
after entry of such judgment; in the event of a stay, the judgment shall not be discharged
within 30 days after the stay expires; or




(8) the Issuers or any of their Significant Subsidiaries pursuant to or within the
meaning of Bankruptcy Law:




(A) commences a voluntary case,




(B) consents to the entry of an order for relief against it in an involuntary
case,




(C) consents to the appointment of a custodian of it or for all or
substantially all of its property,




(D) makes a general assignment for the benefit of its creditors, or




(E) generally is not paying its debts as they become due; or




(9) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




(A) is for relief against the Issuers or any of their Significant Subsidiaries
in an involuntary case;




(B) appoints a custodian of the Issuers or any of their Significant
Subsidiaries or for all or substantially all of the property of the Issuers or any
of their Significant Subsidiaries; or




(C) orders the liquidation of the Issuers or any of their Significant
Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive days.


 


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Section 6.02 Acceleration.



In the case of an Event of Default specified in clause (8) or (9) of Section 6.01 hereof, with
respect to the Partnership, Finance Corp. or any Significant Subsidiary, all outstanding Notes will
become due and payable immediately without further action or notice. If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the
applicable series of Notes then outstanding may declare all the Notes of that series to be due and
payable immediately.



Upon any such declaration, the Notes shall become due and payable immediately. The Holders of
a majority in aggregate principal amount of a series of Notes issued under this Indenture and then
outstanding by notice to the Trustee may on behalf of all of the Holders of that series rescind an
acceleration and its consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest or premium that has
become due solely because of the acceleration) have been cured or waived.



If an Event of Default by reason of any action (or inaction) taken (or not taken) by or on behalf
of the Issuers with the willful intention of avoiding payment of the premium that the Issuers would
have had to pay if the Issuers then had elected to redeem the Notes pursuant to Section 3.07
hereof, then, upon acceleration of the Notes, an equivalent premium shall also become and be
immediately due and payable, to the extent permitted by law, anything in this Indenture or in the
Notes to the contrary notwithstanding.



Section 6.03 Other Remedies.




If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.



The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.



Section 6.04 Waiver of Past Defaults.




Holders of not less than a majority in aggregate principal amount of a series of Notes issued
under this Indenture and then outstanding by notice to the Trustee for those Notes may on behalf of
the Holders of the Notes of that series waive any existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the payment of the
principal of, premium, if any, or interest on, the Notes; provided, however, that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration
and its consequences, including any related payment default that resulted from such acceleration.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.



Section 6.05 Control by Majority.




Holders of a majority in principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee of
that
series of Notes or exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Notes or that may subject
the Trustee to personal liability.


 


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Section 6.06 Limitation on Suits.




A Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if:




(1) the Holder of a Note gives to the Trustee written notice of a continuing Event of
Default;




(2) the Holders of at least 25% in principal amount of the then outstanding Notes make
a written request to the Trustee to pursue the remedy;




(3) such Holder of a Note or Holders of Notes offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or expense;




(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and




(5) during such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the request.



A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note.



Section 6.07 Rights of Holders of Notes to Receive Payment.




Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and interest on the Note, on or after the respective
due dates expressed in the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.



Section 6.08 Collection Suit by Trustee.




If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Issuers for the whole amount of principal of, premium, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.


 


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Section 6.09 Trustee May File Proofs of Claim.




The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuers
(or any other obligor upon the Notes), their creditors or their property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee,
and in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.



Section 6.10 Priorities.




If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in
the following order:




First: to the Trustee, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;




Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any and
interest, respectively; and




Third: to the Issuers or to such party as a court of competent jurisdiction shall
direct.



The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.



Section 6.11 Undertaking for Costs.




In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.



ARTICLE 7.

TRUSTEE




Section 7.01 Duties of Trustee.




(a) If an Event of Default has occurred and is continuing, the Trustee will exercise such of
the rights and powers vested in it by this Indenture, and, in the exercise of its power, use the
same degree of care and skill in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.


 


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(b) Except during the continuance of an Event of Default:




(1) the duties of the Trustee will be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and




(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee will examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.



(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:




(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;




(2) the Trustee will not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and




(3) the Trustee will not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.



(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.



(e) No provision of this Indenture will require the Trustee to expend or risk its own funds or
incur any liability. The Trustee will be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such Holder has offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or expense.



(f) The Trustee will not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Issuers. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.



Section 7.02 Rights of Trustee.




(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.



(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.


 


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(c) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent,
order, bond, debenture, note, other evidence of Indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.



(d) Except with respect to Section 4.01 hereof, the Trustee shall have no duty to inquire as
to the performance of the Issuers’ covenants in Article 4 hereof. In addition, the Trustee shall
not be deemed to have knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Sections 6.01(1), 6.01(2) and 4.01 hereof or (ii) any Default or Event of
Default of which the Trustee shall have received written notification in the manner set forth in
this Indenture or an Officer in the Corporate Trust Office of the Trustee shall have obtained
actual knowledge. Delivery of reports, information and documents to the Trustee under Section 4.03
is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Issuers’ compliance with any of their covenants thereunder (as to which the
Trustee is entitled to rely exclusively on an Officers’ Certificate.)



(e) The Trustee may act through its attorneys and agents and will not be responsible for the
misconduct or negligence of any agent appointed with due care.



(f) The Trustee will not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it by this Indenture.



(g) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Issuers will be sufficient if signed by an Officer of the Issuers.



(h) The Trustee will be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holders have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.



Section 7.03 Individual Rights of Trustee.




The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Issuers or any Affiliate of the Issuers with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Sections 7.10 and 7.11 hereof.



Section 7.04 Trustee’s Disclaimer.




The Trustee will not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Issuers’ use of the
proceeds from the Notes or any money paid to the Issuers or upon the Issuers’ direction under any
provision of this Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.


 


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Section 7.05 Notice of Defaults.



If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee will mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of principal
of, premium, if any, or interest on any Note, the Trustee may withhold the notice if the Trustee
determines in good faith determines that withholding the notice is in the interests of the Holders
of the Notes.



Section 7.06 Reports by Trustee to Holders of the Notes.




(a) Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee will mail to the Holders of the
Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also will comply with TIA § 313(b)(2). The Trustee
will also transmit by mail all reports as required by TIA § 313(c).



(b) A copy of each report at the time of its mailing to the Holders of Notes will be mailed by
the Trustee to the Issuers and filed by the Trustee with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA § 313(d). The Issuers will promptly notify the Trustee
when the Notes are listed on any stock exchange.



Section 7.07 Compensation and Indemnity.




(a) The Issuers will pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee’s compensation will not be
limited by any law on compensation of a trustee of an express trust. The Issuers will reimburse
the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses will include the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.



(b) The Issuers will indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or administration of its duties
under this Indenture, including the costs and expenses of enforcing this Indenture against the
Issuers (including this Section 7.07) and defending itself against any claim (whether asserted by
the Issuers or any Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence or bad faith. The Trustee will notify the Issuers
promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the
Issuers will not relieve the Issuers of their obligations hereunder. The Issuers will defend the
claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the
Issuers will pay the reasonable fees and expenses of such counsel. The Issuers need not pay for
any settlement made without its consent, which consent will not be unreasonably withheld.



(c) The obligations of the Issuers under this Section 7.07 will survive the satisfaction and
discharge of this Indenture.



(d) To secure the Issuers’ payment obligations in this Section 7.07, the Trustee will have a
claim prior to the Notes on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Notes. Such claim will survive the
satisfaction and discharge of this Indenture.


 


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(e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(6) or (7) hereof occurs, the expenses and the compensation for the services
(including the
fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.



(f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.



Section 7.08 Replacement of Trustee.




(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.08.



(b) The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Issuers. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuers in writing.
The Issuers may remove the Trustee if:




(1) the Trustee fails to comply with Section 7.10 hereof;




(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;




(3) a custodian or public officer takes charge of the Trustee or its property; or




(4) the Trustee becomes incapable of acting.



(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Issuers will promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Issuers.



(d) If a successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Issuers, or the Holders of at least 10% in
principal amount of the then outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.



(e) If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuers. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to
the claim provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Issuers’ obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.


 


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Section 7.09 Successor Trustee by Merger, etc.



If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act will be the successor Trustee.



Section 7.10 Eligibility; Disqualification.




There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50 million
as set forth in its most recent published annual report of condition.



This Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).



Section 7.11 Preferential Collection of Claims Against the Issuers.




The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA
§ 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the
extent indicated therein.



ARTICLE 8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




The Issuers may, at the option of the Board of Directors of the General Partner, on the
Issuers’ behalf, and the Board of Directors of Finance Corp., and at any time, elect to have
Section 8.02 hereof be applied to all outstanding Notes upon compliance with the conditions set
forth below in this Article 8. The Issuers may, at their option and at any time, elect to have
Section 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set
forth below in this Article 8.



Section 8.02 Legal Defeasance and Discharge.




Upon the Issuers’ exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Issuers will, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from their obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).
For this purpose, Legal Defeasance means that the Issuers will be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes, which will thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of
this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other
obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense
of the Issuers, shall execute proper instruments acknowledging the same), except for the following
provisions which will survive until otherwise terminated or discharged hereunder:




(1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, or interest or premium, if any, on such Notes when such payments are due from
the trust referred to in Section 8.04 hereof;




(2) the Issuers’ obligations with respect to the Notes concerning issuing temporary
Notes, registration of Notes or mutilated, destroyed, lost or stolen Notes under Article 2;


 


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(3) the Issuers’ obligation to maintain an office or agency for payment under Section
4.02 hereof and money for security payments held in trust;




(4) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Issuers’ obligations in connection therewith; and




(5) the legal defeasance and covenant defeasance provisions of this Article 8.



Subject to compliance with this Article 8, the Issuers may exercise their option under this
Section 8.02 notwithstanding the prior exercise of their option under Section 8.03 hereof.



Section 8.03 Covenant Defeasance.




Upon the Issuers’ exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Issuers will, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from each of their obligations under the covenants contained in Sections 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15 and 4.16 hereof and clause (4) of Section 5.01 hereof with
respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04
hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will thereafter be deemed
not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants, but will continue
to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes
will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance
means that, with respect to the outstanding Notes, the Issuers may omit to comply with and will
have no liability in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or in any other
document and such omission to comply will not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes
will be unaffected thereby. In addition, upon the Issuers’ exercise under Section 8.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(4) hereof will not constitute
Events of Default.



Section 8.04 Conditions to Legal or Covenant Defeasance.




In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02
or 8.03 hereof:




(1) the Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in United States dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of, premium, if any,
and interest on the outstanding Notes on the stated maturity date for payment thereof or on
the applicable redemption date, as the case may be;




(2) the Issuers will deliver to the Trustee an Opinion of Counsel stating that:




(a) after the 91st day following the deposit the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors’ rights generally, and all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance have been complied with and
confirming other matters;


 


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(b) in the case of an election under Section 8.02 hereof, that the Issuers have
received from, or there has been published by, the Internal Revenue Service a ruling, or
since the date of this Indenture, there shall have been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax purposes as
a result of such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred; and




(c) in the case of an election under Section 8.03 hereof, that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;




(3) the Issuers must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Issuers with the intent of preferring the Holders of Notes over
the other creditors of the Issuers or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Issuers;




(4) no Event of Default shall have occurred and be continuing on the date of such
deposit or insofar as Events of Default described in Section 6.01(6) or (7) hereof are
concerned, at any time in the period ending on the 91st day after the date of
deposit; and




(5) such Legal Defeasance or Covenant Defeasance will not result in a breach, violation
of, or constitute a default under, any material agreement or instrument (other than this
Indenture) to which the Issuers or any of their Restricted Subsidiaries is a party or by
which the Issuers or any of their Restricted Subsidiaries is bound.



Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.



Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Issuers or any of their Restricted Subsidiaries acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need not be segregated from
other funds except to the extent required by law.



The Issuers will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.



Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Issuers from time to time upon the request of the Issuers any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in
excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.


 


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Section 8.06 Repayment to the Issuers.




Any money deposited with the Trustee or any Paying Agent, or then held by the Issuers, in
trust for the payment of the principal of, premium, if any, or interest on any Note and remaining
unclaimed for two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Issuers on their request or (if then held by the Issuers) will be
discharged from such trust; and the Holder of such Note will thereafter be permitted to look only
to the Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuers as trustee thereof, will thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Issuers cause to be published once, in the New York Times
and The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Issuers.



Section 8.07 Reinstatement.




If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuers’ obligations under this Indenture and the Notes will
be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Issuers make
any payment of principal of, premium, if any, or interest on any Note following the reinstatement
of its obligations, the Issuers will be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.



ARTICLE 9.

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01 Without Consent of Holders of Notes.




Notwithstanding Section 9.02 of this Indenture, the Issuers and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder of a Note to:




(1) cure any ambiguity, defect or inconsistency;




(2) provide for uncertificated Notes in addition to or in place of certificated Notes;




(3) provide for the assumption of the Issuers’ obligations to Holders of Notes in the
case of a merger or consolidation;




(4) make any change that could provide any additional rights or benefits to the Holders
of Notes that does not adversely affect the legal rights under this Indenture of any such
Holder;




(5) comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA; or




(6) to provide security for or add guarantees with respect to the Notes.


 


69









 





Upon the request of the Partnership accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Issuers
in the execution of any amended or supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee will not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this Indenture or otherwise.



Section 9.02 With Consent of Holders of Notes.




Except as provided below in this Section 9.02, the Issuers and the Trustee may amend or
supplement this Indenture (including, without limitation, Sections 3.10, 4.10 and 4.14 hereof) and
the Notes with the consent of the Holders of at least a majority in principal amount of the Notes
then outstanding (including, without limitation, consents obtained in connection with a tender
offer or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing
Default or Event of Default (other than a continuing Default or Event of Default in the payment of
the principal of, premium, if any, or interest on the Notes, except a payment default resulting
from an acceleration that has been rescinded) may be waived for all Holders of Notes of a series
and its consequences under this Indenture with the consent of the Holders of a majority in
aggregate principal amount of that series of Notes (including Additional Notes, if any) issued
under this Indenture and then outstanding (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for the Notes), by notice to the Trustee. Section
2.08 hereof shall determine which Notes are considered to be “outstanding” for purposes of this
Section 9.02.



Upon the request of the Partnership accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee will join with the Issuers in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
will not be obligated to, enter into such amended or supplemental Indenture.



It is not be necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment or waiver, but it is sufficient if such
consent approves the substance thereof.



After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Issuers will mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Issuers to mail such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, with the consent of
the Holders of a majority in principal amount of the Notes (including, without limitation,
Additional Notes, if any) then outstanding (including consents obtained in connection with a tender
offer or exchange offer for Notes) may waive any existing default or compliance with any provision
of this Indenture or the Notes. However, without the consent of each Holder affected, an amendment
or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):




(1) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;


 


70









 






(2) reduce the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of the Notes other than as provided above with
respect to Sections 3.10, 4.10 and 4.14 hereof;




(3) reduce the rate of or change the time for payment of interest on any Note;




(4) waive a Default in the payment of principal or interest on the Notes;




(5) make any Note payable in money other than that stated in the Notes;




(6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal, premium, if
any, or interest on the Notes; or




(7) make any change in the foregoing amendment and waiver provisions.



Without the consent of the Holders of 90% of the principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or exchange offer for
Notes), an amendment or waiver may not:




(1) change the provisions applicable to the redemption of any Note as described
in Section 3.09; or




(2) make any change in the Escrow and Security Agreement that would adversely
affect the Holders.



Section 9.03 Compliance with Trust Indenture Act.




Every amendment or supplement to this Indenture or the Notes will be set forth in an amended
or supplemental Indenture that complies with the TIA as then in effect.



Section 9.04 Revocation and Effect of Consents.




Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.



Section 9.05 Notation on or Exchange of Notes.




The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Issuers in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.



Failure to make the appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.


 


71









 





Section 9.06 Trustee to Sign Amendments, etc.



The Trustee will sign any amended or supplemental Indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Partnership may not sign an amendment or supplemental Indenture
until the Board of Directors approves it. In executing any amended or supplemental indenture, the
Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in
relying upon, in addition to the documents required by Section 11.04 hereof, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
Indenture is authorized or permitted by this Indenture.



ARTICLE 10.

SATISFACTION AND DISCHARGE




Section 10.01 Satisfaction and Discharge.




This Indenture will be discharged and will cease to be of further effect as to all Notes
issued hereunder, when:




(1) either:




(a) all Notes that have been authenticated (except lost, stolen or destroyed Notes that
have been replaced or paid and Notes for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Issuers) have been delivered to the Trustee for
cancellation; or




(b) all Notes that have not been delivered to the Trustee for cancellation have become
due and payable by reason of the making of a notice of redemption or otherwise or will
become due and payable within one year and the Issuers has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient without consideration of any reinvestment of interest,
to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest to the date of maturity or
redemption;




(2) no Default or Event of Default has occurred and is continuing on the date of such
deposit or will occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to which the
Issuers are a party or by which the Issuers are bound;




(3) the Issuers have paid or caused to be paid all sums payable by them under this
Indenture; and




(4) the Issuers have delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or the
redemption date, as the case may be.



In addition, the Issuers must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.



Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section, the provisions of Section
10.02 and Section 8.06 will survive. In addition, nothing in this Section 10.01 will be deemed to
discharge
those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and
discharge of this Indenture.


 


72









 





Section 10.02 Application of Trust Money.




Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to
Section 10.01 shall be held in trust and applied by it, in accordance with the provisions of the
Notes and this Indenture, to the payment, either directly or through any Paying Agent (including
the Issuers acting as their own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other funds except to the
extent required by law.



If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 10.01 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuers’ obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 10.01; provided that if the
Issuers has made any payment of principal of, premium, if any, or interest on any Notes because of
the reinstatement of their obligations, the Issuers shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.



ARTICLE 11.

MISCELLANEOUS




Section 11.01 Trust Indenture Act Controls.




If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA §318(c), the imposed duties will control.



Section 11.02 Notices.




Any notice or communication by the Issuers or the Trustee to the others is duly given if in
writing and delivered in Person or mailed by first class mail (registered or certified, return
receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others’ address:




If to the Issuers:




Ferrellgas, L.P.

One Liberty Plaza

Liberty, MO 64068

Telecopier No.: (816) 792-6979

Attention: Kevin T. Kelly




With a copy to:




Bracewell & Patterson, LLP

711 Louisiana Street

South Tower Pennzoil Place, Suite 2900

Houston, TX 77002

Telecopier No.: (713) 221-2121

Attention: Dewey J. Gonsoulin, Jr., Esq.


 


73









 






If to the Trustee:




U.S. Bank National Association

Corporate Trust Services

60 Livingston Avenue

St. Paul, MN 55107-2292

Telecopier No.: (651) 495-8097

Attention: Frank Leslie



The Issuers or the Trustee, by notice to the others may designate additional or different
addresses for subsequent notices or communications.



All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.



Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with
respect to other Holders.



If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



If the Issuers mails a notice or communication to Holders, they will mail a copy to the
Trustee and each Agent at the same time.



Section 11.03 Communication by Holders of Notes with Other Holders of Notes.




Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Issuers, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).



Section 11.04 Certificate and Opinion as to Conditions Precedent.




Upon any request or application by the Issuers to the Trustee to take any action under this
Indenture, the Issuers shall furnish to the Trustee:




(1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 11.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 11.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.


 


74









 





Section 11.05 Statements Required in Certificate or Opinion.



Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply
with the provisions of TIA § 314(e) and must include:




(1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




(3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and




(4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.



Section 11.06 Rules by Trustee and Agents.




The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.



Section 11.07 Non-Recourse.




The obligations of the Issuers under this Indenture are non-recourse to Ferrellgas Partners
and its Affiliates, other than the Issuers and, after the Escrow Mergers, the General Partner, and
are payable only out of the Issuers’ cash flow and assets and, after the Escrow Mergers, the cash
flow and assets of the General Partner. The Trustee agrees, and each Holder of a Note, by accepting
a Note, agrees in this Indenture that Ferrellgas Partners and its other Affiliates will not be
liable for any of the Issuers’ obligations under this Indenture or the Notes.



Section 11.08 No Personal Liability of Directors, Officers, Employees and Stockholders.




No limited partner of the Partnership or director, officer, employee, incorporator or
stockholder of the General Partner, Finance Corp., Escrow LLC or Escrow Finance Corp., as such,
will have any liability for any obligations of the Issuers under the Notes or this Indenture or any
claim based on, in respect of, or by reason of, such obligations. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such waiver is against public
policy.



Section 11.09 Governing Law.




THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE
AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


75









 





Section 11.10 Successors.



All agreements of the Issuers in this Indenture and the Notes will bind their successors. All
agreements of the Trustee in this Indenture will bind its successors.



Section 11.11 Severability.




In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.



Section 11.12 Counterpart Originals.




The parties may sign any number of copies of this Indenture. Each signed copy will be an
original, but all of them together represent the same agreement.



Section 11.13 Table of Contents, Headings, etc.




The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and will in no way modify or restrict any of the terms or provisions hereof.



[Signatures on following page]





 


76












 




SIGNATURES




Dated as of April 20, 2004




	 	 	 	 	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Ferrellgas Escrow LLC
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Ferrellgas, L.P., its sole member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By: 	Ferrellgas, Inc., its general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By: 	/s/ Kevin T. Kelly	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	Name: 
	Kevin T. Kelly	 	 
	 

	 	 	 	 	Title: 
	Senior Vice President and Chief
Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Ferrellgas Finance Escrow Corporation
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Kevin T. Kelly	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name:	Kevin T. Kelly	 	 
	 	 	 	 	Title: 	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	On and after the Merger Date,
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Ferrellgas, L.P. 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Ferrellgas, Inc., its general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Kevin T. Kelly	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name:	Kevin T. Kelly	 	 
	 	 	 	 	Title:	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	On and after the Merger Date,
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Ferrellgas Finance Corp.
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Kevin T. Kelly	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name:	Kevin T. Kelly	 	 
	 	 	 	 	Title: 	Senior Vice President and Chief Financial Officer	 	 






	 	 	 	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION,

as Trustee
	 
	 	 	 	 	 	 
	By:	 	/s/ Frank P. Leslie III	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Frank P. Leslie III	 	 
	 

	 	Title:
	Vice President	 	 







 


77









 







EXHIBIT A1




[Face of Note]




CUSIP/CINS                     




63/4% Senior Notes due 2014




			
	 	 	 
	No. _____ 

	 	$                    






Ferrellgas Escrow LLC

Ferrellgas Finance Escrow Corporation




promises to pay to CEDE & CO.




or registered assigns,




the principal sum of                                                                 
                                    




Dollars on May 1, 2014.



Interest Payment Dates: May 1 and November 1




Record Dates: April 15 and October 15




Dated:                     



	 	 	 	 	 	 	 	 	 
	 	 	Ferrellgas Escrow LLC
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Ferrellgas, L.P., its sole member	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By: 
	Ferrellgas, Inc.,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	Kevin T. Kelly	 	 
	 

	 	 	 	Title:
	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Ferrellgas Finance Escrow Corporation
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	Kevin T. Kelly	 	 
	 

	 	 	 	Title:
	Senior Vice President and Chief Financial Officer	 	 






This is one of the Notes referred to

in the within-mentioned Indenture:



	 	 	 	 	 
	U.S. Bank National Association

as Trustee
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 





 


A1-1









 





[Back of Note]




63/4% Senior Notes due 2014




[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]




[Insert Private Placement Legend, if applicable pursuant to the provisions of the Indenture]




Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.




(1) Interest. Ferrellgas Escrow LLC, a Delaware limited liability company
(“Escrow LLC”), and Ferrellgas Finance Escrow Corporation, a Delaware corporation (“Escrow
Finance Corp.” and together with Escrow LLC, the “Issuers”), promise to pay interest on the
principal amount of this Note at 63/4% per annum from April 20, 2004 until maturity. The
Issuers will pay interest semi-annually in arrears on May 1 and November 1 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day (each, an
“Interest Payment Date”). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest, and if this Note
is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be November 1,
2004. The Issuers will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; they will pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace periods) from time
to time on demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.




(2) Method of Payment. The Issuers will pay interest on the Notes to the
Persons who are registered Holders of Notes at the close of business on the April 15 or
October 15 next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as provided in Section
2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium, if any, and interest at the office or agency of the Issuers maintained
for such purpose within the City and State of New York, or, at the option of the Issuers,
payment of interest may be made by check mailed to the Holders at their addresses set forth
in the register of Holders; provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium on, all Global
Notes the Holders of which will have provided wire transfer instructions to the Issuers or
the Paying Agent. Such payment will be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts.




(3) Paying Agent and Registrar. Initially, U.S. Bank National Association,
the Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuers may
change any Paying Agent or Registrar without notice to any Holder. The Issuers or any of
their Subsidiaries may act in any such capacity.


 


A1-2









 






(4) Indenture. The Issuers issued the Notes under an Indenture dated as of
April 20, 2004 (the “Indenture”) among the Issuers and the Trustee. The terms of the Notes
include
those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are
subject to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. Except to the extent provided in the Escrow and Security Agreement dated as of
the date of the Indenture (the “Escrow and Security Agreement”), among Escrow LLC, Escrow
Finance Corp., the Trustee and LaSalle Bank National Association, as escrow agent, the Notes
are unsecured obligations of the Issuers.




(5) Optional Redemption.




(a) Except as set forth in subparagraph (b) of this Paragraph 5, the Issuers will not
have the option to redeem the Notes prior to May 1, 2009. Thereafter, the Issuers will have
the option to redeem the Notes, in whole or in part, upon not less than 30 nor more than 60
days’ notice, at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest thereon to the applicable redemption date, if
redeemed during the twelve months beginning on May 1 of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage	 
	2009
	 	 	103.375	%
	2010
	 	 	102.250	%
	2011
	 	 	101.125	%
	2012 and thereafter
	 	 	100.000	%







(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time
on or prior to May 1, 2007, the Issuers may redeem Notes with the net proceeds of one or
more Equity Offerings at a redemption price equal to 106.750% of the aggregate principal
amount thereof, plus accrued and unpaid interest to the applicable redemption date; provided
that at least 65% in aggregate principal amount of the Notes already issued, together with
the Notes and any Additional Notes sold under the Indenture, remain outstanding immediately
after the occurrence of such redemption and that such redemption occurs within 90 days of
the date of the closing of such Equity Offering.




(6) Mandatory Redemption.



Except as described below, the Issuers will not be required to make mandatory redemption
payments with respect to the Notes.



If (i) the conditions contained in Section I.4(b) of the Escrow and Security Agreement have
not been satisfied by August 5, 2004 or (ii) the Contribution Agreement is terminated prior to
August 5, 2004, the Issuers will cause a notice of special mandatory redemption to be mailed not
later than the next Business Day following August 5, 2004 or following the date the Contribution
Agreement is terminated, as applicable, and will redeem the Notes not later than five Business Days
following the date of the notice of the special mandatory redemption, at a redemption price equal
to 100% of the principal amount of Notes, plus accrued and unpaid interest, to, but not including
the redemption date. Immediately upon receipt by the Paying Agent of the Escrow Property (as
defined in the Escrow and Security Agreement), the Trustee will notify the Holders of the date
fixed for special mandatory redemption.


 


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(7) Repurchase at Option of Holder.




(a) If there is a Change of Control, the Issuers will be required to make an offer (a
“Change of Control Offer”) to repurchase, in cash, all or any part (equal to $1,000 or an
integral multiple thereof) of each Holder’s Notes at a purchase price equal to 101% of
the aggregate principal amount thereof plus accrued and unpaid interest thereon, if any, to
the date of purchase ( the “Change of Control Payment”). Within 30 days following any
Change of Control, the Issuers will mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.




(b) If the Partnership or any of its Restricted Subsidiary consummates any Asset Sales,
within 15 days of each date on which the aggregate amount of Excess Proceeds exceeds $10
million, the Issuers will commence an offer to all Holders of Notes and all holders of other
Indebtedness that are pari passu with the Notes containing provisions similar to those set
forth in this Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets (an “Asset Sale Offer”) pursuant to Section 3.10 of the Indenture to
purchase the maximum principal amount of Notes and other pari passu Indebtedness that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date
fixed for the closing of such offer, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and other pari passu
Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Partnership or any Restricted Subsidiary may use such deficiency for general business
purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis.
Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Issuers prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Notes.




(8) Notice of Redemption. Notice of redemption will be mailed at least 10
days but not more than 60 days before the redemption date to each Holder whose Notes are to
be redeemed at its registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a
Holder are to be redeemed. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.




(9) Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer
of Notes may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Issuers may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Issuers need not exchange or
register the transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Issuers need not
exchange or register the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the corresponding
Interest Payment Date.




(10) Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.




(11) Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes (including, consents
obtained in connection with a tender offer or exchange offer for Notes), and any existing
default or compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes (including,
consents obtained in connection with a tender offer or exchange offer for Notes).
Without the consent of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for the assumption of the
Issuers’ obligations to Holders of the Notes in case of a merger or consolidation, to make
any change that could provide any additional rights or benefits to the Holders of the Notes
that does not adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the SEC in order to effect or maintain the qualification of
the Indenture under the Trust Indenture Act, or to provide for security for or add
guarantees with respect to the Notes.


 


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(12) Defaults and Remedies. Events of Default include: Each of the following
is an “Event of Default”: (i) default in the payment of the principal of or premium, if any,
on any Note when the same becomes due and payable, upon stated maturity, acceleration,
optional redemption, required purchase, scheduled principal payment or otherwise; (ii)
default in the payment of an installment of interest on any of the Notes, when the same
becomes due and payable, which default continues for a period of 30 days; (iii) failure of
the Issuers to perform or observe any other term, covenant or agreement contained in the
Notes or the Indenture, other than a default specified in either (i) or (ii) above, and the
default continues for a period of 45 days after written notice of the default requiring the
Issuers to remedy the same has been given to the Partnership by the Trustee or to the
Issuers and the Trustee by Holders of at least 25% in aggregate principal amount of the
Notes then outstanding; (iv) failure of the Issuers to perform or observe any material term,
covenant or agreement contained in the Escrow and Security Agreement; (v) default or
defaults under certain other agreements, instruments, mortgages, bonds, debentures or other
evidences of Indebtedness under which the Partnership or any Restricted Subsidiary of the
Partnership has outstanding Indebtedness in excess of $10 million if the default (x) is
caused by a failure to pay principal of or premium, if any, or interest on to such
Indebtedness within the applicable grace period, if any, provided with respect to such
Indebtedness or (y) results in the acceleration of such Indebtedness prior to its stated
maturity; (vi) the Escrow and Security Agreement or any other security document or any Lien
purported to be granted thereby on the Escrow Account or the case or escrow investments
therein is held in any judicial proceeding to be unenforceable or invalid, in whole or in
part, or ceases for any reason (other than pursuant to a release that is delivered or
becomes effective as set forth in the Escrow and Security Agreement or Indenture) to be
fully enforceable and perfected; (vii) certain final judgment or judgments, which is or are
non-appealable and non-reviewable or which has or have not been stayed pending appeal or
review or as to which all rights to appeal or review have expired or been exhausted, shall
have been rendered against the Partnership, any Restricted Subsidiary or the General Partner
provided such judgment or judgments requires or require the payment of money in excess of
$10 million in the aggregate and is not covered by insurance or discharged or stayed pending
appeal or review within 60 days after entry of such judgment or in the event of a stay,
within 30 days after the stay expires; or (viii) specified events of bankruptcy, insolvency,
or reorganization with respect to the Issuers or any of their Significant Subsidiaries as
more fully set forth in the Indenture. If any Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the applicable series of
Notes then outstanding Notes may declare all the Notes of that series to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from certain
events of bankruptcy or insolvency, with respect to the Partnership, Finance Corp. or any
Significant Subsidiary, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as provided in
the Indenture. Subject to certain limitations, Holders of a majority in principal amount of
a series of then outstanding Notes may direct the Trustee of that series of Notes in its
exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines in good faith that withholding notice
is in their interest. The Holders of a majority in
aggregate principal amount of a series of Notes then outstanding by notice to the
Trustee for those Notes may on behalf of all Holders of Notes of that series waive any
existing Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of interest on, or the principal of,
the Notes. The Issuers are required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Issuers are required upon becoming aware of
any Default or Event of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.


 


A1-5









 






(13) Trustee Dealings with Issuers. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services for the
Issuers or their Affiliates, and may otherwise deal with the Issuers or their Affiliates, as
if it were not the Trustee.




(14) No Recourse Against Others. A limited partner of the Partnership or
director, officer, employee, incorporator or stockholder of the General Partner, Finance
Corp., Escrow LLC or Escrow Finance Corp., as such, will not have any liability for any
obligations of the Issuers under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for the
issuance of the Notes.




(15) Authentication. This Note will not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.




(16) Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




(17) Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all
the rights set forth in the Registration Rights Agreement dated as of April 20, 2004, among
the Issuers, and on and after the Merger Date (as defined therein), Ferrellgas, L.P. and
Ferrellgas Finance Corp. and the other parties named on the signature pages thereof or, in
the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive
Notes will have the rights set forth in one or more registration rights agreements, if any,
among the Issuers, and on and after the Merger Date (as defined therein), Ferrellgas, L.P.
and Ferrellgas Finance Corp. and the other parties thereto, relating to rights given by the
Issuers to the purchasers of any Additional Notes (collectively, the “Registration Rights
Agreement”).




(18) CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.


 


A1-6









 






(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND
BE USED TO CONSTRUE THE INDENTURE AND THIS NOTE WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.



The Issuers will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:



	 	 	 	 	 
	 

	 	Ferrellgas, L.P.
	 	 
	 

	 	One Liberty Plaza	 	 
	 

	 	Liberty, Missouri 64068	 	 
	 

	 	Attention: Investor Relations	 	 
	 

	 	(816) 792-0203	 	 






 


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Assignment Form




To assign this Note, fill in the form below:



	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)
	 
	 	 
	 
	(Insert assignee’s soc. sec. or tax I.D. no.)

	 
	 	 
	 
	 
	 	 
	 
	 
	 	 
	 
	 
	 	 
	 
	(Print or type assignee’s name, address and zip code)







and irrevocably appoint                                                                
                 
to transfer this Note on the books of the Issuers. The agent may substitute another to act for
him.



Date:                     




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 	 	 	 	(Sign exactly as your name appears on the face of this Note)







Signature Guarantee*:                                         






	 	 	 
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




 


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Option of Holder to Elect Purchase




If you want to elect to have this Note purchased by the Issuers pursuant to Section 4.10 or
4.14 of the Indenture, check the appropriate box below:



	 	 	 
	Ø Section 4.10
	 	Ø Section 4.14






If you want to elect to have only part of the Note purchased by the Issuers pursuant to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:



$                    




Date:                     




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 
	 	 	 	(Sign exactly as your name appears on the face of this Note)

	 
	 	 	 	 
	 

	 	Tax Identification No.: 	 
	 

	 	 	 	 






Signature Guarantee*:                                         






	 	 	 
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




 


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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*




The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal Amount	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	of this Global Note	 	 	Signature of	 
	 	 	Amount of decrease	 	 	Amount of increase	 	 	following such	 	 	authorized officer	 
	 	 	in Principal Amount of	 	 	in Principal Amount of	 	 	decrease	 	 	of Trustee or	 
	Date of Exchange	 	this Global Note	 	 	this Global Note	 	 	(or increase)	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 








	 	 	 
	*	 	This schedule should be included only if the Note is issued in global form.




 


A1-10









 









EXHIBIT A2




[Face of Regulation S Temporary Global Note]




CUSIP/CINS                     




63/4% Senior Notes due 2014




			
	 	 	 
	No.
 _____ 

	 	$                    






Ferrellgas Escrow LLC

Ferrellgas Finance Escrow Corporation




promises to pay to CEDE & CO..



or registered assigns,




the principal sum of                                                      
                            DOLLARS on May 1,
2014.



Interest Payment Dates: May 1 and November 1




Record Dates: April 15 and October 15




Dated:                     



	 	 	 	 	 	 	 	 	 
	 	 	Ferrellgas Escrow LLC
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Ferrellgas, L.P., its sole member	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By: Ferrellgas, Inc.,
	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Kevin T. Kelly	 	 
	 

	 	 	 	Title:
	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Ferrellgas Finance Escrow Corporation
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	Kevin T. Kelly	 	 
	 

	 	 	 	Title:
	Senior Vice President and Chief Financial Officer	 	 






This is one of the Notes referred to

in the within-mentioned Indenture:



	 	 	 	 	 
	U.S. Bank National Association

as Trustee
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 





 


A2-1









 





[Back of Regulation S Temporary Global Note]

63/4% Senior Notes due 2014




THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.



THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUERS OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS NOTE
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.


 


A2-2









 





THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF FERRELLGAS ESCROW LLC, FERRELLGAS FINANCE ESCROW
CORPORATION, FERRELLGAS, L.P. AND FERRELLGAS FINANCE CORP. THAT (A) THIS NOTE MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE



Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.




(1) Interest. Ferrellgas Escrow LLC, a Delaware limited liability company
(“Escrow LLC”), and Ferrellgas Finance Escrow Corporation, a Delaware corporation (“Escrow
Finance Corp.” and together with Escrow LLC, the “Issuers”), promise to pay interest on the
principal amount of this Note at 63/4% per annum from April 20, 2004 until maturity. The
Issuers will pay interest semi-annually in arrears on May 1 and November 1 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day (each, an
“Interest Payment Date”). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest, and if this Note
is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be November 1,
2004. The Issuers will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; they will pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace periods) from time
to time on demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.



Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S Permanent
Global Notes, the Holder hereof shall not be entitled to receive payments of interest hereon; until
so exchanged in full, this Regulation S Temporary Global Note shall in all other respects be
entitled to the same benefits as other Notes under the Indenture.




(2) Method of Payment. The Issuers will pay interest on the Notes to the
Persons who are registered Holders of Notes at the close of business on the April 15 or
October 15 next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as provided in Section
2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium, if any, and interest at the office or agency of the Issuers maintained
for such purpose within the City and State of New York, or, at the option of the Issuers,
payment of interest may be made by check mailed to the Holders at their addresses set forth
in the register of Holders; provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium on, all Global
Notes the Holders of which will have provided wire transfer instructions to the Issuers or
the Paying Agent. Such payment will be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts.


 


A2-3









 






(3) Paying Agent and Registrar. Initially, U.S. Bank National Association,
the Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuers may
change any Paying Agent or Registrar without notice to any Holder. The Issuers or any of
their Subsidiaries may act in any such capacity.




(4) Indenture. The Issuers issued the Notes under an Indenture dated as of
April 20, 2004 (the “Indenture”) among the Issuers and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are
subject to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. Except to the extent provided in the Escrow and Security Agreement dated as of
the date of the Indenture (the “Escrow and Security Agreement”), among Escrow LLC, Escrow
Finance Corp., the Trustee and LaSalle Bank National Association, as escrow agent, the Notes
are unsecured obligations of the Issuers.




(5) Optional Redemption.




(a) Except as set forth in subparagraph (b) of this Paragraph 5, the Issuers will not
have the option to redeem the Notes prior to May 1, 2009. Thereafter, the Issuers will have
the option to redeem the Notes, in whole or in part, upon not less than 30 nor more than 60
days’ notice, at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest thereon to the applicable redemption date, if
redeemed during the twelve months beginning on May 1 of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage	 
	2009
	 	 	103.375	%
	2010
	 	 	102.250	%
	2011
	 	 	101.125	%
	2012 and thereafter
	 	 	100.000	%







(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time
on or prior to May 1, 2007, the Issuers may redeem Notes with the net proceeds of one or
more Equity Offerings at a redemption price equal to 106.750% of the aggregate principal
amount thereof, plus accrued and unpaid interest to the applicable redemption date; provided
that at least 65% in aggregate principal amount of the Notes already issued, together with
the Notes and any Additional Notes sold under the Indenture, remain outstanding immediately
after the occurrence of such redemption and that such redemption occurs within 90 days of
the date of the closing of such Equity Offering.




(6) Mandatory Redemption.



Except as described below, the Issuers will not be required to make mandatory redemption
payments with respect to the Notes.



If (i) the conditions contained in Section I.4(b) of the Escrow and Security Agreement have
not been satisfied by August 5, 2004 or (ii) the Contribution Agreement is terminated prior to
August 5, 2004, the Issuers will cause a notice of special mandatory redemption to be mailed not
later than the next Business Day following August 5, 2004 or following the date the Contribution
Agreement is terminated, as applicable, and will redeem the Notes not later than five Business Days
following the date of the notice
of the special mandatory redemption, at a redemption price equal to 100% of the principal
amount of Notes, plus accrued and unpaid interest, to, but not including the redemption date.
Immediately upon receipt by the Paying Agent of the Escrow Property (as defined in the Escrow and
Security Agreement), the Trustee will notify the Holders of the date fixed for special mandatory
redemption.


 


A2-4









 






(7) Repurchase at Option of Holder.




(a) If there is a Change of Control, the Issuers will be required to make an offer (a
“Change of Control Offer”) to repurchase, in cash, all or any part (equal to $1,000 or an
integral multiple thereof) of each Holder’s Notes at a purchase price equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest thereon, if any, to the
date of purchase ( the “Change of Control Payment”). Within 30 days following any Change of
Control, the Issuers will mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.




(b) If the Partnership or any of its Restricted Subsidiary consummates any Asset Sales,
within 15 days of each date on which the aggregate amount of Excess Proceeds exceeds $10
million, the Issuers will commence an offer to all Holders of Notes and all holders of other
Indebtedness that are pari passu with the Notes containing provisions similar to those set
forth in this Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets (an “Asset Sale Offer”) pursuant to Section 3.10 of the Indenture to
purchase the maximum principal amount of Notes and other pari passu Indebtedness that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date
fixed for the closing of such offer, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and other pari passu
Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Partnership or any Restricted Subsidiary may use such deficiency for general business
purposes. If the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis.
Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Issuers prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Notes.




(8) Notice of Redemption. Notice of redemption will be mailed at least 10
days but not more than 60 days before the redemption date to each Holder whose Notes are to
be redeemed at its registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a
Holder are to be redeemed. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.




(9) Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer
of Notes may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Issuers may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Issuers need not exchange or
register the transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Issuers need not
exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding Interest Payment
Date.


 


A2-5









 






(10) Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.




(11) Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes (including, consents
obtained in connection with a tender offer or exchange offer for Notes), and any existing
default or compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes (including, consents obtained in connection with a tender offer or
exchange offer for Notes). Without the consent of any Holder of a Note, the Indenture or
the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Issuers’ obligations to Holders of the Notes in case of a
merger or consolidation, to make any change that could provide any additional rights or
benefits to the Holders of the Notes that does not adversely affect the legal rights under
the Indenture of any such Holder, to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the Trust Indenture Act, or to
provide for security for or add guarantees with respect to the Notes.




(12) Defaults and Remedies. Events of Default include: Each of the following
is an “Event of Default”: (i) default in the payment of the principal of or premium, if any,
on any Note when the same becomes due and payable, upon stated maturity, acceleration,
optional redemption, required purchase, scheduled principal payment or otherwise; (ii)
default in the payment of an installment of interest on any of the Notes, when the same
becomes due and payable, which default continues for a period of 30 days; (iii) failure of
the Issuers to perform or observe any other term, covenant or agreement contained in the
Notes or the Indenture, other than a default specified in either (i) or (ii) above, and the
default continues for a period of 45 days after written notice of the default requiring the
Issuers to remedy the same has been given to the Partnership by the Trustee or to the
Issuers and the Trustee by Holders of at least 25% in aggregate principal amount of the
Notes then outstanding; (iv) failure of the Issuers to perform or observe any material term,
covenant or agreement contained in the Escrow and Security Agreement; (v) default or
defaults under certain other agreements, instruments, mortgages, bonds, debentures or other
evidences of Indebtedness under which the Partnership or any Restricted Subsidiary of the
Partnership has outstanding Indebtedness in excess of $10 million if the default (x) is
caused by a failure to pay principal of or premium, if any, or interest on to such
Indebtedness within the applicable grace period, if any, provided with respect to such
Indebtedness or (y) results in the acceleration of such Indebtedness prior to its stated
maturity; (vi) the Escrow and Security Agreement or any other security document or any Lien
purported to be granted thereby on the Escrow Account or the case or escrow investments
therein is held in any judicial proceeding to be unenforceable or invalid, in whole or in
part, or ceases for any reason (other than pursuant to a release that is delivered or
becomes effective as set forth in the Escrow and Security Agreement or Indenture) to be
fully enforceable and perfected; (vii) certain final judgment or judgments, which is or are
non-appealable and non-reviewable or which has or have not been stayed pending appeal or
review or as to which all rights to appeal or review have expired or been exhausted, shall
have been rendered against the Partnership, any Restricted Subsidiary or the General Partner
provided such judgment or judgments requires or require the payment of money in excess of
$10 million in the aggregate and is not covered by insurance or discharged or stayed pending
appeal or

 


A2-6









 






 review within 60 days after entry of such judgment or in the event of a stay, within 30 days after the stay expires; or (viii) specified events
of bankruptcy, insolvency, or reorganization with respect to the Issuers or any of their
Significant Subsidiaries as more fully set forth in the Indenture. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of
the applicable series of Notes then outstanding Notes may declare all the Notes of that
series to be due and payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, with respect to the
Partnership, Finance Corp. or any Significant Subsidiary, all outstanding Notes will become
due and payable without further action or notice. Holders may not enforce the Indenture or
the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of a series of then outstanding Notes may direct the Trustee of
that series of Notes in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest) if it determines in
good faith that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of a series of Notes then outstanding by notice to the Trustee
for those Notes may on behalf of all Holders of Notes of that series waive any existing
Default or Event of Default and its consequences under the Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of, the Notes.
The Issuers are required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Issuers are required upon becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such Default or Event of
Default.




(13) Trustee Dealings with Issuers. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services for the
Issuers or their Affiliates, and may otherwise deal with the Issuers or their Affiliates, as
if it were not the Trustee.




(14) No Recourse Against Others. A limited partner of the Partnership or
director, officer, employee, incorporator or stockholder of the General Partner, Finance
Corp., Escrow LLC or Escrow Finance Corp., as such, will not have any liability for any
obligations of the Issuers under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for the
issuance of the Notes.




(15) Authentication. This Note will not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.




(16) Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




(17) Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all
the rights set forth in the Registration Rights Agreement dated as of April 20, 2004, among
the Issuers, and on and after the Merger Date (as defined therein), Ferrellgas, L.P. and
Ferrellgas Finance Corp. and the other parties named on the signature pages thereof or, in
the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive
Notes will have the rights set forth in one or more registration rights agreements, if any,
among the Issuers, and on and after the Merger Date (as defined therein), Ferrellgas, L.P.
and Ferrellgas Finance Corp. and the other parties thereto,
relating to rights given by the Issuers to the purchasers of any Additional Notes
(collectively, the “Registration Rights Agreement”).


 


A2-7









 






(18) CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.




(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND
BE USED TO CONSTRUE THE INDENTURE AND THIS NOTE WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.



The Issuers will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:



	 	 	 	 	 
	 

	 	Ferrellgas, L.P.
	 	 
	 

	 	One Liberty Plaza	 	 
	 

	 	Liberty, Missouri 64068	 	 
	 

	 	Attention: Investor Relations	 	 
	 

	 	(816) 792-0203	 	 






 


A2-8









 





Assignment Form




To assign this Note, fill in the form below:



	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)
	 
	 	 
	 
	(Insert assignee’s soc. sec. or tax I.D. no.)

	 
	 	 
	 
	 
	 	 
	 
	 
	 	 
	 
	 
	 	 
	 
	(Print or type assignee’s name, address and zip code)







and irrevocably appoint      
                                                               
             
to transfer this Note on the books of the Issuers. The agent may substitute another to act for
him.



Date:                     




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 	 	 	 	(Sign exactly as your name appears on the face of this Note)







Signature Guarantee*:                                         






	 	 	 
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




 


A2-9









 









Option of Holder to Elect Purchase




If you want to elect to have this Note purchased by the Issuers pursuant to Section 4.10 or
4.14 of the Indenture, check the appropriate box below:



	 	 	 
	ØSection 4.10
	 	ØSection 4.14






If you want to elect to have only part of the Note purchased by the Issuers pursuant to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:



$                    




Date:                     




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 
	 	 	 	(Sign exactly as your name appears on the face of this Note)

	 
	 	 	 	 
	 

	 	Tax Identification No.: 	 
	 

	 	 	 	 






Signature Guarantee*:                                         






	 	 	 
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




 


A2-10









 









Schedule of Exchanges of Interests in the Regulation S Temporary Global Note




The following exchanges of a part of this Regulation S Temporary Global Note for an interest
in another Global Note, or exchanges of a part of another other Restricted Global Note for an
interest in this Regulation S Temporary Global Note, have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal Amount	 	 	 	 
	 	 	Amount of decrease	 	 	Amount of increase	 	 	of this Global Note	 	 	Signature of	 
	 	 	in Principal Amount	 	 	in Principal Amount	 	 	following such	 	 	authorized officer	 
	 	 	of	 	 	of	 	 	decrease	 	 	of Trustee or	 
	Date of Exchange	 	this Global Note	 	 	this Global Note	 	 	(or increase)	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 


A2-11









 







EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Ferrellgas, L.P.

One Liberty Plaza

Liberty, Missouri 64068

Attention: Investor Relations




U.S. Bank National Association

Corporate Trust Services

60 Livingston Avenue

St. Paul, MN 55107-2292




Re: 63/4% Senior Notes due 2014



Reference is hereby made to the Indenture, dated as of April 20, 2004 (the “Indenture”), among
Ferrellgas Escrow LLC and Ferrellgas Escrow Finance Corporation (together, the “Issuers”), as
Issuers, and on and after the Merger Date (as defined therein), Ferrellgas, L.P. and Ferrellgas
Finance Corp. and U.S. Bank National Association, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.



                                        , (the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $                     in such
Note[s] or interests (the “Transfer”), to                                                              (the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:



[CHECK ALL THAT APPLY]




1. o Check if Transferee will take delivery of a beneficial interest in the 144A
Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended
(the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.



2. o Check if Transferee will take delivery of a beneficial interest in the
Regulation S Temporary Global Note, the Regulation S Permanent Global Note or a Restricted
Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a Person in the United States
and (x) at the time the buy order was originated, the Transferee was outside the United States or
such Transferor and any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in the United States,
(ii) no directed selling efforts have been made in contravention


 


B-1









 






of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of
a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed
on the Regulation S Permanent Global Note, the Regulation S Temporary Global Note and/or the
Restricted Definitive Note and in the Indenture and the Securities Act.



3. o Check and complete if Transferee will take delivery of a beneficial interest
in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities
Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with
the transfer restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):




(a) o such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;



or





(b) o such Transfer is being effected to the Issuers or a subsidiary thereof;



or





(c) o such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act;



or





(d) o such Transfer is being effected to an Institutional Accredited Investor
and pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the
time of transfer of less than $250,000, an Opinion of Counsel provided by the Transferor
or the Transferee (a copy of which the Transferor has attached to this certification), to
the effect that such Transfer is in compliance with the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note and/or the
Restricted Definitive Notes and in the Indenture and the Securities Act.


 


B-2









 





4. o Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.



(a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.



(b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.



(c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.



This certificate and the statements contained herein are made for your benefit and the benefit
of the Issuers.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Insert Name of Transferor]
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






Dated:                     




 


B-3









 







ANNEX A TO CERTIFICATE OF TRANSFER





	 	1.	 	The Transferor owns and proposes to transfer the following:






[CHECK ONE OF (a) OR (b)]





	 	(a)	 	o a beneficial interest in the:







	 	(i)	 	o 144A Global Note (CUSIP                     ), or

	 
	 	(ii)	 	o Regulation S Global Note (CUSIP                     ), or

	 
	 	(iii)	 	o IAI Global Note (CUSIP                     ); or







	 	(b)	 	o a Restricted Definitive Note.







	 	2.	 	After the Transfer the Transferee will hold:






[CHECK ONE]





	 	(a)	 	o a beneficial interest in the:







	 	(i)	 	o 144A Global Note (CUSIP                     ), or

	 
	 	(ii)	 	o Regulation S Global Note (CUSIP                     ), or

	 
	 	(iii)	 	o IAI Global Note (CUSIP                     ); or

	 
	 	(iv)	 	o Unrestricted Global Note (CUSIP                     ); or







	 	(b)	 	o a Restricted Definitive Note; or

	 
	 	(c)	 	o an Unrestricted Definitive Note,







in accordance with the terms of the Indenture.




 


B-4









 







EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Ferrellgas, L.P.

One Liberty Plaza

Liberty, Missouri 64068

Attention: Investor Relations




U.S. Bank National Association

Corporate Trust Services

60 Livingston Avenue

St. Paul, MN 55107-2292




Re: 63/4% Senior Notes due 2014



Reference is hereby made to the Indenture, dated as of April 20, 2004 (the “Indenture”), among
Ferrellgas Escrow LLC and Ferrellgas Escrow Finance Corporation (together, the “Issuers”), as
Issuers, and on and after the Merger Date (as defined therein), Ferrellgas, L.P. and Ferrellgas
Finance Corp. and U.S. Bank National Association, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.



                                        , (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $                     in such Note[s]
or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:



1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note



(a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.



(b) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


C-1









 





(c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state of the United States.



(d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes



(a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in
a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.



(b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE] o 144A Global Note, o Regulation S Global
Note, o IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.



This certificate and the statements contained herein are made for your benefit and the benefit
of the Issuers.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Insert Name of Transferor]
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






Dated:                                         





 


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EXHIBIT D




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




Ferrellgas, L.P.

One Liberty Plaza

Liberty, Missouri 64068

Attention: Investor Relations




U.S. Bank National Association

Corporate Trust Services

60 Livingston Avenue

St. Paul, MN 55107-2292




Re: 63/4% Senior Notes due 2014



Reference is hereby made to the Indenture, dated as of April 20, 2004 (the “Indenture”), among
Ferrellgas Escrow LLC and Ferrellgas Escrow Finance Corporation (together, the “Issuers”), as
Issuers, and on and after the Merger Date (as defined therein), Ferrellgas, L.P. and Ferrellgas
Finance Corp. and U.S. Bank National Association, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.



In connection with our proposed purchase of $                     aggregate principal amount of:



(a) o a beneficial interest in a Global Note, or



(b) o a Definitive Note,



we confirm that:



1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).



2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (A) to the Issuers or any subsidiary thereof, (B) in accordance with
Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C)
to an institutional “accredited investor” (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Issuers a
signed letter substantially in the form of this letter and, if such transfer is in respect of a
principal amount of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel in
form reasonably acceptable to the Issuers to the effect that such transfer is in compliance with
the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under
the Securities Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we further agree to
provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from
us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser
that resales thereof are restricted as stated herein.


 


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3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Issuers such certifications, legal opinions and other
information as you and the Issuers may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.



4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.



5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.



You and the Issuers are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Insert Name of Accredited Investor]
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






Dated:                                         




 


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