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SUPPLEMENTAL INDENTURE
Dated as of September 24, 2002
to
INDENTURE
Dated as of April 26, 1996
among
FERRELLGAS PARTNERS, L.P.
FERRELLGAS PARTNERS FINANCE CORP.
Obligors
FERRELLGAS, L.P.
Guarantor
and
U.S. BANK, N.A.
Trustee
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SUPPLEMENTAL INDENTURE dated as of September 24, 2002 (this "Supplemental
Indenture") to the Indenture dated as of April 26, 1996 (the "Indenture") among
Ferrellgas Partners, L.P., a Delaware limited partnership (the "Partnership"),
Ferrellgas Partners Finance Corp., a Delaware corporation ("Finance Corp." and,
together with the Partnership, the "Issuers"), Ferrellgas, L.P., a Delaware
limited partnership (the "Operating Partnership"), and U.S. Bank, N.A. (formerly
American Bank National Association), as trustee (the "Trustee"). Capitalized
terms used in this Supplemental Indenture, but not defined herein, shall have
the respective meanings given to such terms in the Indenture.
WITNESSETH:
WHEREAS, Section 9.02 of the Indenture provides, among other things, that
the Issuers, the Guarantor and the Trustee may amend or supplement the Indenture
or the Senior Notes with the written consent of the Holders of at least a
majority in principal amount of the Senior Notes then outstanding (including
consents obtained in connection with a tender offer or exchange offer for the
Senior Notes); and
WHEREAS, the Issuers have solicited the written consent of the Holders to
certain amendments to the Indenture and the Senior Notes described in the Offer
to Purchase and Consent Solicitation Statement dated July 1, 2002 (the "Offer to
Purchase") and which have been reflected herein (the "Amendments"); and
WHEREAS, the Issuers have received and filed with the Trustee, in the
manner contemplated by the Indenture, evidence of the written consent of the
Holders of at least a majority of the outstanding Senior Notes, consenting to
the Amendments to be effected in the form of this Supplemental Indenture; and
WHEREAS, the Issuers have commenced a tender offer to purchase for cash any
and all outstanding Senior Notes pursuant to the terms of the Offer to Purchase.
NOW, THEREFORE, in consideration of the mutual agreements herein set forth,
the parties hereto agree as follows:
1. Amendments to the Indenture.
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The following amendments are made to the Indenture effective as of the date
specified in Section 3 below:
(a) Section 1.01 is amended by the deletion therefrom of the
definitions of the following terms: "Acquired Debt," "Attributable Debt,"
"Available Cash," "Change of Control," "Consolidated Cash Flow,"
"Consolidated Net Income," "Consolidated Net Worth," "Disqualified
Interests," "Existing Indebtedness," "Fixed Charge Coverage Ratio," "Fixed
Charges," "Flow-Through Acquisition," "Investments," "Net Income," "Net
Proceeds," "Permitted Investments," "Permitted Liens," "Permitted
Refinancing Indebtedness" and "Weighted Average Life to Maturity."
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(b) Section 1.02 is amended by the deletion of the following terms and
their corresponding section references from the listing of definitions in
such section: "Affiliate Transaction," "Asset Sale," "Asset Sale Offer,"
"Change of Control Offer," "Change of Control Payment," "Change of Control
Payment Date," "Commencement Date," "Covenant Defeasance," "Excess
Proceeds," "incur," "Incurrence Date," "Offer Amount," "Offer Period,"
"Purchase Date" and "Restricted Payments."
(c) Section 2.06(i)(ii) is amended by the deletion of ", 4.10, 4.14"
therefrom.
(d) The first paragraph of Section 3.01 is amended by the deletion of
the number "30" and the insertion of the number "3" in place thereof.
(e) The second paragraph of Section 3.01 is deleted in its entirety.
(f) The third paragraph of Section 3.02 is deleted in its entirety.
(g) The fifth paragraph of Section 3.02 is deleted in its entirety.
(h) The first paragraph of Section 3.03 is amended by the deletion of
the number "30" and the insertion of the number "3" in place thereof.
(i) The final paragraph of Section 3.03 is amended by the deletion of
the number "45" and the insertion of the number "3" in place thereof.
(j) Section 3.08 is amended by the deletion of "Except as set forth in
Sections 4.10 and 4.14 hereof," therefrom, and by the replacement of the
word "the" following such deletion with "The."
(k) Sections 3.09 is amended to read in its entirety as follows:
"Section 3.09. [Reserved]."
(l) Section 4.03 is amended to read in its entirety as follows:
"Section 4.03. [Reserved]."
(m) Section 4.04 is amended to read in its entirety as follows:
"Section 4.04. [Reserved]."
(n) Section 4.05 is amended to read in its entirety as follows:
"Section 4.05. [Reserved]."
(o) Section 4.07 is amended to read in its entirety as follows:
"Section 4.07. [Reserved]."
(p) Section 4.08 is amended to read in its entirety as follows:
"Section 4.08. [Reserved]."
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(q) Section 4.09 is amended to read in its entirety as follows:
"Section 4.09. [Reserved]."
(r) Section 4.10 is amended to read in its entirety as follows:
"Section 4.10. [Reserved]."
(s) Section 4.11 is amended to read in its entirety as follows:
"Section 4.11. [Reserved]."
(t) Section 4.12 is amended to read in its entirety as follows:
"Section 4.12. [Reserved]."
(u) Section 4.13 is amended to read in its entirety as follows:
"Section 4.13. [Reserved]."
(v) Section 4.14 is amended to read in its entirety as follows:
"Section 4.14. [Reserved]."
(w) Section 4.15 is amended to read in its entirety as follows:
"Section 4.15. [Reserved]."
(x) Section 4.16 is amended to read in its entirety as follows:
"Section 4.16. [Reserved]."
(y) Section 4.17 is amended to read in its entirety as follows:
"Section 4.17. [Reserved]."
(z) Section 4.18 is amended to read in its entirety as follows:
"Section 4.18. [Reserved]."
(aa) Article 5 is amended to read in its entirety as follows:
"ARTICLE 5
[RESERVED]"
(bb) Section 6.01(c) is amended to read in its entirety as follows:
"(c) [Reserved];".
(cc) Section 6.01(e) is amended to read in its entirety as follows:
"(e) [Reserved];".
(dd) Section 6.01(f) is amended to read in its entirety as follows"(f)
[Reserved];".
(ee) Section 6.07 is amended by the deletion of "(including in
connection with an Asset Sale Offer or a Change of Control Offer)"
therefrom.
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(ff) Section 7.02(g) is amended by the deletion of "and 4.04"
therefrom and by the deletion of "6.01(1), 6.01(2) or 6.01(3)" and the
insertion of "6.01(a) or 6.01(b)" in place thereof.
(gg) The heading of Article 8 is amended by the deletion of "AND
COVENANT DEFEASANCE" therefrom.
(hh) The heading of Section 8.01 is amended by the deletion of "or
Covenant Defeasance" therefrom.
(ii) Section 8.01 is amended by the deletion of "or 8.03" therefrom.
(jj) Section 8.02 is amended by the deletion therefrom of the last
sentence of such Section.
(kk) Section 8.03 is amended to read in its entirety as follows:
"Section 8.03 [Reserved]."
(ll) The heading of Section 8.04 is amended by the deletion of "or
Covenant Defeasance" therefrom.
(mm) Section 8.04 is amended by the deletion of "or 8.03" from the
first sentence of such Section and by the deletion of "or Covenant
Defeasance" from the clause immediately preceding paragraph (a) of such
Section.
(nn) Paragraph (c) of Section 8.04 is amended to read in its entirety
as follows: "(c) [Reserved];".
(oo) Paragraph (e) of Section 8.04 is amended by the deletion of "or
Covenant Defeasance" therefrom.
(pp) Paragraph (h) of Section 8.04 is amended by the deletion of "or
the Covenant Defeasance" therefrom.
(qq) Section 8.07 is amended by the deletion of "or 8.03" therefrom in
each of the three places it appears.
(rr) Section 9.02(b) is amended by the deletion of "(other than
provisions of Section 4.10 and Section 4.14 hereof)" therefrom.
(ss) Section 9.02(g) is amended by the deletion of "(other than a
payment required by Section 4.10 or Section 4.14 hereof)" therefrom.
(tt) Section 12.03 is amended to read in its entirety as follows:
"Section 12.03 [Reserved]."
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(uu) Section 12.04 is amended by the deletion of "; provided that the
Net Proceeds of such sale or other disposition are applied in accordance
with Section 4.10 hereof" and by the deletion of "including without
limitation Section 4.10," therefrom.
2. Amendments to Senior Notes.
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The following amendments are made effective as of the date specified in
Section 3 below to the form of Senior Note attached as Exhibit A to the
Indenture and to all Senior Notes that remain outstanding after such amendments
become effective:
(a) Section 4 of the back of the Senior Notes is amended by inserting
", as amended and supplemented from time to time," immediately after "April
26, 1996."
(b) Section 5 of the back of the Senior Notes is amended by the
deletion of the number "30" and the insertion of the number "3" in place
thereof.
(c) Section 7 of the back of the Senior Notes is amended to read in
its entirety as follows: "7. [Reserved]."
(d) Section 8 of the back of the Senior Notes is amended by the
deletion of the number "30" and the insertion of the number "3" in place
thereof.
(e) Section 12 of the back of the Senior Notes is amended by the
deletion therefrom of "failure for 20 days by the Issuers to comply with
Sections 4.07, 4.09, 4.10, 4.14 or 5.01 of the Indenture;" and by the
deletion therefrom of "default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Partnership or any of
its Subsidiaries (or the payment of which is guaranteed by the Partnership
or any of its Subsidiaries), whether such Indebtedness or Guarantee now
exists, or is created after the date of the Indenture, which default (a) is
caused by a failure to pay principal of or premium, if any, or interest on
such Indebtedness prior to the expiration of the grace period provided in
such Indebtedness (a "Payment Default") or (b) results in the acceleration
of such Indebtedness prior to its express maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $10
million or more; failure by the Partnership or any of its Subsidiaries to
pay final judgments aggregating in excess of $10 million, which judgments
are not paid, discharged or stayed for a period of 60 days;".
(f) The Senior Notes are amended by the deletion therefrom of the form
entitled "Option of Holder to Elect Purchase."
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3. Effectiveness of Amendments.
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The Amendments shall become effective on the Acceptance Date (as defined in
the Offer to Purchase).
4. Ratification of Indenture.
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The Indenture, as supplemented and amended by this Supplemental Indenture,
is in all respects ratified and confirmed, and this Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
5. Trustee Not Responsible for Recitals.
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The recitals herein contained are made by the Issuers and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
6. Governing Law.
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THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN THIS SUPPLEMENTAL
INDENTURE.
7. Separability.
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In case any one or more of the provisions contained in this Supplemental
Indenture shall for any reason be held to be invalid, illegal or unenforceable
in any respect, then, to the extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Supplemental Indenture, but this Supplemental Indenture shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein.
8. Counterparts.
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This Supplemental Indenture may be executed in any number of counterparts
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
FERRELLGAS PARTNERS, L.P.
By: Ferrellgas, Inc.
General Partner
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Senior Vice President and
Chief Financial Officer
FERRELLGAS PARTNERS FINANCE CORP.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Senior Vice President and
Chief Financial Officer
FERRELLGAS, L.P.
By: Ferrellgas, Inc.
General Partner
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Senior Vice President and
Chief Financial Officer
U.S. BANK, N.A., TRUSTEE
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Vice President
