Promissory Note


 Exhibit 10.5 
 PROMISSORY NOTE 
 (the “Note”) 

 

			
	 $255,000,000.00
	  	Date: December 21, 2011

 FOR VALUE RECEIVED, INERGY, L.P. (the “Borrower”), HEREBY PROMISES TO
PAY to the order of JPMORGAN CHASE BANK, N.A. (the “Bank”), at its offices located at 10 South Dearborn Street, Chicago, Illinois 60603 or at such other place as the Bank or any holder hereof may from time to time
designate, the principal sum of TWO HUNDRED FIFTY-FIVE MILLION AND 00/100 DOLLARS ($255,000,000.00), or such lesser amount as may constitute the outstanding balance hereof (the “Loan”), in lawful money of the United States,
on the Maturity Date (as hereinafter defined) set forth on the Bank’s books and records, which may be electronic in nature (or earlier as hereinafter referred to), and to pay interest in like money at such office or place from the date hereof
on the unpaid principal balance of the Loan made hereunder at a rate equal to the Interest Rate (as hereinafter defined and computed on the basis of the actual number of days elapsed on the basis of a 360-day year) for the Loan, which shall be
payable on the Maturity Date. Interest on any past due amount, whether at the due date thereof or by acceleration or upon default, shall be payable at a rate three percent (3%) per annum above the Interest Rate being charged on the Loan, which
rate shall be computed for actual number of days elapsed on the basis of a 360-day year and shall be adjusted as of the date of each such change, but in no event higher than the maximum permitted under applicable law. The Bank is authorized (but not
obligated) to debit any deposit account of the Borrower now or hereafter maintained by the Borrower with the Bank (a “Deposit Account”) for any amounts not paid when due hereunder. 

Interest 
 The Bank is authorized to enter on its books and records, which may be electronic in nature, (i) the amount of the Loan made from time to time hereunder, (ii) the date on which the Loan is made,
(iii) the Maturity Date, it being understood and agreed that the Loan shall be due and payable no later than 5:00 p.m. (Chicago time) on the date hereof (the “Maturity Date”), (iv) the interest rate agreed between the
Borrower and the Bank as the interest rate to be paid to the Bank on the Loan (such rate, the “Interest Rate”), which rate shall be the Prime Rate plus five percent (5%), (v) the amount of each payment made hereunder, and
(vi) the outstanding principal balance of the Loan hereunder from time to time. The date, amount, rate of interest and maturity date of the Loan and payment(s) (if any) of principal, the Loan to which such payment(s) will be applied (which
shall be at the discretion of the Bank) and the outstanding principal balance of Loan shall be recorded by the Bank on its books and records (which may be electronic in nature) and at any time and from time to time may be, and shall be prior to any
transfer by the Bank and delivery of this Note, entered by the Bank on a schedule to be attached to this Note by the Bank (at the discretion of the Bank). Any such entries shall be conclusive in the absence of manifest error. The failure by the Bank
to make any or all such entries shall not relieve the Borrower from its obligation to pay any and all amounts due hereunder. 

Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to the Loan, together with all fees, charges
and other amounts which are treated as interest on the Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken,
received or reserved by the Bank in accordance with applicable law, the rate of interest payable in respect of the Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate. 






 Prepayment 

The Borrower shall have the right to prepay the Loan prior to the Maturity Date without premium or penalty. 

Additional Costs 
 If (a) any applicable domestic or foreign law, treaty, government rule or regulation now or later in effect (whether or not it now applies to the Bank), (b) the interpretation, application or
administration thereof by a governmental authority charged with such interpretation, application or administration or (c) compliance by the Bank with any guideline, request, rules, requirement or directive of such an authority (whether or not
having the force of law), including, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued
in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or
similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted, issued or implemented, shall (A) affect the basis of taxation of payments to the Bank of any
amounts payable by the Borrower under this Note (other than taxes imposed on the overall net income of the Bank by the jurisdiction or by any political subdivision or taxing authority of the jurisdiction in which the Bank has its principal office),
or (B) impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, Federal Deposit Insurance Corporation deposit insurance premiums or assessments) against assets of, deposits with or
for the account of, or credit extended by the Bank, or (C) impose any other condition with respect to this Note and the result of any of the foregoing is to increase the cost to the Bank of extending, maintaining or funding the Loan or to
reduce the amount of any sum receivable by the Bank on the Loan, or (D) affect the amount of capital required or expected to be maintained by the Bank (or any corporation controlling the Bank) and the Bank determines that the amount of such
capital is increased by or based upon the existence of the Bank’s obligations under this Note and the increase has the effect of reducing the rate of return on the Bank’s (or its controlling corporation’s) capital as a consequence of
the obligations under this Note to a level below that which the Bank (or its controlling corporation) could have achieved but for such circumstances (taking into consideration its policies with respect to capital adequacy) by an amount deemed by the
Bank to be material, then the Borrower shall pay to the Bank, from time to time, upon request by the Bank, additional amounts sufficient to compensate the Bank for the increased cost or reduced sum receivable. Whenever the Bank shall learn of
circumstances described in this section which are likely to result in additional costs to the Borrower, the Bank shall give prompt written notice to the Borrower of the basis for and the estimated amount of any such anticipated additional costs. A
statement as to the amount of the increased cost or reduced sum receivable, prepared in good faith and in reasonable detail by the Bank and submitted by the Bank to the Borrower, shall be conclusive and binding for all purposes absent manifest error
in computation. 
 Indemnity 
 The Borrower shall indemnify the Bank, and the Bank’s affiliates and the respective directors, officers, employees, agents and advisors of such person and such person’s affiliates (each such
person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, incremental taxes, liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee 






 
arising out of, in connection with, or as a result of (i) the execution or delivery of this Note, the performance by the parties hereto of their respective obligations thereunder or the
consummation of other transactions contemplated hereby, (ii) the Loan or the use of the proceeds therefrom or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities
or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. 

Events of Default 
 In the event of: default in the prompt payment of this Note and all other liabilities and obligations now or hereafter owed by Borrower to the Bank hereunder (collectively,
“Liabilities”); complete or partial liquidation or suspension of any business of the undersigned; dissolution, merger, consolidation or reorganization of the undersigned; general assignment for the benefit of creditors or insolvency
of the undersigned; appointment of a receiver, conservator, rehabilitator or similar officer for the undersigned, or for any property of the undersigned; the taking of possession of, or assumption of control over, all or any substantial part of the
property of the undersigned by the United States government, or any state or political subdivision thereof, foreign government (de facto or de jure) or any agency of any thereof; calling of a meeting of creditors, assignment for the benefit of
creditors or bulk sale or notice thereof; then and in any such event, in addition to all rights and remedies of the Bank under applicable law and otherwise, all such rights and remedies cumulative, not exclusive and enforceable
alternatively, successively and concurrently, the Bank may, at its option, declare any and all of the amounts owing under this Note to be due and payable, whereupon the maturity of the then unpaid balance hereof shall be accelerated and the same,
together with all interest accrued hereon, shall forthwith become due and payable provided, however, that if a bankruptcy event specified above shall have occurred, all amounts owing under this Note shall be immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which are expressly waived by the Borrower. Further, acceptance of any payments shall not waive or affect any prior demand or acceleration of amounts due hereunder, and each
such payment made shall be applied first to the payment of accrued interest, then to the aggregate unpaid principal or otherwise as determined by the Bank in its sole discretion. 

Definitions 
 Business Day 
 A “Business Day” shall mean a day other than
Saturday, Sunday or any other day in which national banking associations are authorized to be closed. 
 Prime Rate

 “Prime Rate” shall mean the rate of interest as is publicly announced by the Bank from time to time as its
Prime Rate. The Prime Rate is a variable rate and each change in the Prime Rate is effective from and including the date this change is announced as being effective. THE PRIME RATE IS A REFERENCE RATE AND MAY NOT BE THE BANK’S LOWEST
RATE. 






 Set-Off 

The Borrower hereby gives to the Bank a right of set-off against all moneys, securities and other property of the Borrower and the
proceeds thereof, now or hereafter delivered to, remaining with or in transit in any manner to the Bank, its correspondents, affiliates (including J.P. Morgan Securities LLC) or its agents from or for the Borrower, whether for safekeeping, custody,
pledge, transmission, collection or otherwise or coming into possession, control or custody of the Bank in any way, and also in addition to set-off rights, a lien on and security interest in any balance of any Deposit Accounts and credits of the
Borrower with, and any and all claims of the Borrower against the Bank at any time existing, hereby authorizing the Bank at any time or times, without prior notice, to apply such balances, credits or claims, or any part thereof, to the obligations
of the Borrower under this Note in such amounts as it may select, whether contingent, unmatured or otherwise. 

Assignment 
 The Borrower may assign or otherwise transfer its rights or obligations hereunder pursuant to the Assignment and Assumption Agreement attached hereto as Exhibit A. 

Miscellaneous 
 The Borrower hereby waives diligence, demand, presentment, protest and notice of any kind, and assents to extensions of the time of payment, release, surrender or substitution of security, or forbearance
or other indulgence, without notice. 
 All payments under this Note shall be made without set-off or counterclaim in lawful
money of the United States of America and in immediately available funds for the Bank’s account at such place as shall be designated by the Bank for such purpose. 
 Should any payment of principal or interest become due and payable on any day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day and interest shall
continue to accrue at the applicable rate until such payment is made. 
 This Note may not be changed, modified or terminated
orally, but only by an agreement in writing signed by the party to be charged and consented to in writing by the party hereof. 

The Bank reserves the right to assign or sell participations in the Loan or the Note to any entity (including to any Federal Reserve Bank
in accordance with applicable law) and to provide any assignee or participant or prospective assignee or participant with information of the Borrower previously received by the Bank, subject to confidentiality requirements. The Borrower’s
consent to such assignment or participation is hereby deemed granted. 
 The Borrower hereby authorizes the Bank and any other
holder of an interest in this Note (a “Holder”) to disclose confidential information relating to the financial condition or operations of the Borrower (i) to any director, officer, employee or affiliate of the Bank or any
Holder, (ii) to any purchaser or prospective purchaser of an interest in the Loan, (iii) to legal counsel, accountants, and other professional advisors to the Bank or any Holder, (iv) to regulatory officials, (v) as requested or
required by law, regulation, or legal process or (vi) in connection with any legal proceeding to which the Bank or any other Holder is a party. 
 The Borrower shall reimburse the Bank on demand for all costs, expenses and charges (including, without limitation, fees and charges of external legal counsel for the Bank and costs allocated by its
internal legal department) in connection with the preparation, performance or enforcement of this Note. In the event the Bank or any holder hereof shall refer this Note to an attorney for collection, the Borrower agrees to pay, in addition to unpaid
principal and interest, all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney’s fees of internal or outside counsel, whether or not suit is instituted. 






 In the event of any litigation with respect to this Note, THE BORROWER WAIVES THE RIGHT
TO A TRIAL BY JURY and all rights of setoff and rights to interpose counter-claims and cross-claims. The Borrower hereby irrevocably consents to the jurisdiction of the courts of the State of New York and of any Federal court located in such
State in connection with any action or proceeding arising out of or relating to this Note. The execution and delivery of this Note has been authorized by the board of directors of the Borrower. The Borrower hereby authorizes the Bank to complete
this Note in any particulars according to the terms of the Loan. This Note shall be governed by and construed in accordance with the laws of the State of New York applicable to contract made and to be performed in such State, and shall be binding
upon the successors and assigns of the Borrower and inure to the benefit of the Bank, its successors, endorsees and assigns. 

[Signature Page Follows] 






 If any term or provision of this Note shall be held invalid, illegal or unenforceable the
validity of all other terms and provisions hereof shall in no way be affected thereby. 
  

			
	INERGY, L.P., as the Borrower
	
	 By: INERGY GP, LLC,

its managing general partner

		
	By	 	/s/ R. Brooks Sherman, Jr.
		 	Name: R. Brooks Sherman, Jr.
		 	Title: Executive Vice President, Chief Financial Officer