AMENDMENT NO. 1 TO AMENDED AND RESTATED RECEIVABLE INTEREST SALE AGREEMENT AND SUBORDINATED NOTE
Exhibit 10.11
AMENDMENT NO. 1 TO AMENDED AND RESTATED RECEIVABLE INTEREST
SALE AGREEMENT AND SUBORDINATED NOTE
SALE AGREEMENT AND SUBORDINATED NOTE
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED RECEIVABLE INTEREST SALE AGREEMENT, dated as of
June 6, 2006 (this “Amendment”), is entered into by Ferrellgas, L.P., a Delaware limited
partnership (“Originator”), and Ferrellgas Receivables, LLC, a Delaware limited liability company
(“Buyer”), and pertains to (a) the Amended and Restated Receivables Interest Sale Agreement dated
as of June 7, 2005 between Originator and Buyer (as heretofore amended, the “Existing Agreement”)
and (b) the Subordinated Note dated June 7, 2005 executed by Buyer in favor of Originator (the
“Existing Note”). The Existing Agreement, as amended hereby, is hereinafter referred to as the
“Agreement,” and the Existing Note, as amended hereby, is hereinafter referred to as the
“Subordinated Note”). Unless defined elsewhere herein, capitalized terms used in this Amendment
shall have the meanings assigned to such terms in Exhibit I to the Existing Agreement.
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Existing Agreement and Existing Note
as hereinafter set forth; and
WHEREAS, the Agent, on behalf of the Purchasers, is willing to consent to such
amendments;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements herein
contained and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendments.
(a) Recital E of the Existing Agreement is hereby amended and restated in its entirety to read
as follows:
E. From time to time after the date hereof, Buyer will sell undivided interests in the
Receivable Interest and the Contributed Interest pursuant to that certain Second Amended and
Restated Receivables Purchase Agreement dated as of June 6, 2006 (as the same may from time
to time hereafter be amended, supplemented, restated or otherwise modified, the “Purchase
Agreement”) among Buyer, as seller, Originator, as initial Servicer, JPMorgan Chase Bank,
N.A. (“JPMorgan Chase”) and the other financial institutions from time to time party thereto
as “Financial Institutions,” Jupiter Securitization Corporation (“Jupiter”), Fifth Third
Bank (together with Jupiter and the Financial Institutions, the “Purchasers”), and JPMorgan
Chase Bank, N.A., as agent for the Purchasers or any successor agent appointed pursuant to
the terms of the Purchase Agreement, as agent for the Purchasers (in such capacity, the
“Agent”).
(b) Section 9.4 of the Existing Agreement is hereby amended and restated in its entirety to
read as follows:
Section 9.4. Confidentiality.
(a) Originator shall maintain and shall cause each of its employees and officers to
maintain the confidentiality of the Fee Letters and the other confidential or proprietary
information with respect to the Agent and any Conduit and their respective businesses
obtained by it or them in connection with the structuring, negotiating and execution of the
transactions contemplated herein, except that Originator and its officers and employees may
disclose such information to Originator’s external accountants and attorneys and as required
by any applicable law or order of any judicial or administrative proceeding.
(b) Originator hereby consents to the disclosure of any nonpublic information with
respect to it (i) to Buyer, the Agent or the Purchasers, (ii) to any prospective or actual
assignee or participant of any of the Persons described in clause (i), (iii) to any rating
agency, Commercial Paper dealer or provider of a surety, guaranty or credit or liquidity
enhancement to either Conduit or any entity organized for the purpose of purchasing, or
making loans secured by, financial assets for which JPMorgan Chase or Fifth Third acts as
the administrative agent and (iv) to any officers, directors, employees, outside accountants
and attorneys of any of the foregoing, provided each such Person is informed of the
confidential nature of such information and, in the case of a Person described in clause
(ii), agrees in writing to keep such information confidential. In addition, the Purchasers
and the Agent may disclose any such nonpublic information pursuant to any law, rule,
regulation, direction, request or order of any judicial, administrative or regulatory
authority or proceedings (whether or not having the force or effect of law).
(c) Buyer shall maintain and shall cause each of its employees and officers to maintain
the confidentiality of the confidential or proprietary information with respect to
Originator, the Obligors and their respective businesses obtained by it in connection with
the due diligence evaluations, structuring, negotiating and execution of the Transaction
Documents, and the consummation of the transactions contemplated herein and any other
activities of Buyer arising from or related to the transactions contemplated herein
provided, however, that each of Buyer and its employees and officers shall be permitted to
disclose such confidential or proprietary information: (i) to the Persons described in
clause (b) above, and (ii) to the extent required pursuant to any applicable law, rule,
regulation, direction, request or order of any judicial, administrative or regulatory
authority or proceedings with competent jurisdiction (whether or not having the force or
effect of law) so long as such required disclosure is made under seal to the extent
permitted by applicable law or by rule of court or other applicable body.
(c) The two references in Section 9.5(a) of the Existing Agreement to “Conduit” with “a
Conduit” and “such Conduit”, respectively.
(d) Section 9.6 of the Existing Agreement is hereby amended to replace each reference to
“Conduit” with “either Conduit.”
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(e) The definitions of the following terms in Exhibit I to the Existing Agreement are hereby
amended and restated in their entirety to read, respectively, as follows:
“Conduit” has the meaning specified in the Purchase Agreement.
“Pool Receivables” means, collectively, all Eligible Receivables existing on the
Initial Computation Date and all Eligible Receivables arising after the Initial Computation
Date through and including the Termination Date, and “Pool Receivable” means any such
Eligible Receivable individually. For the avoidance of doubt, a Receivable shall cease to
be a Pool Receivable if on any day prior to the Termination Date, such Receivable ceases to
be an Eligible Receivable, but shall continue to be a Pool Receivable if it ceases to be an
Eligible Receivable on or after the Termination Date. For purposes of calculating the
amount of all “Pool Receivables” at any time, such amount shall be the Outstanding Balance
of all such Pool Receivables minus (a) $9,000,000 during the months of May, June, July,
August, September, October and November, or (b) $1,000,000, at any other time.
(f) Numbered paragraph 4 of Exhibit V to the Existing Agreement and of the Existing Note is
hereby amended and restated and restated in its entirety to read as follows:
4. Subordination. Seller shall have the right to receive, and Buyer shall
have the right to make, any and all payments and prepayments relating to the loans made
under this Subordinated Note; provided that after giving effect to any such payment or
prepayment, the Receivable Interest plus the Contributed Interest equals or exceeds the
Minimum Receivables Percentage. Seller hereby agrees that at any time during which the
conditions set forth in the proviso of the immediately preceding sentence shall not be
satisfied, Seller shall be subordinate in right of payment to the prior payment of any
indebtedness or obligation of Buyer owing to the Agent or any Purchaser (each, as defined
below) under that certain Second Amended and Restated Receivables Purchase Agreement, dated
as of June 6, 2006, by and among Buyer, Seller, as Servicer, various “Purchasers” from time
to time party thereto, and JPMorgan Chase Bank, N.A., as the “Agent” (as amended, restated,
supplemented or otherwise modified from time to time, the “Receivables Purchase Agreement”).
The subordination provisions contained herein are for the direct benefit of, and may be
enforced by, the Agent and the Purchasers and/or any of their respective assignees
(collectively, the “Senior Claimants”) under the Receivables Purchase Agreement. Until the
date on which the “Aggregate Capital” outstanding under the Receivables Purchase Agreement
has been repaid in full and all obligations of Buyer and/or the Servicer thereunder and
under the “Fee Letters” referenced therein (all such obligations, collectively, the “Senior
Claim”) have been indefeasibly paid and satisfied in full, Seller shall not institute
against Buyer any proceeding of the type described in Section 7.1(f) or (g) of the
Receivable Interest Sale Agreement unless and until the Collection Date has occurred.
Should any payment, distribution or security or proceeds thereof be received by Seller in
violation of this Section 4, Seller agrees that such payment shall be segregated, received
and held in trust for the benefit of, and deemed to be the property of, and shall be
immediately paid over and delivered to the Agent for the benefit of the Senior Claimants.
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2. Representations and Warranties. In order to induce the other parties hereto to
enter into this Amendment, each of the Buyer and the Originator hereby represents and warrants to
each of the other parties hereto as follows:
(a) The execution and delivery by such party of this Amendment, and the performance of
its obligations under the Agreement and the Subordinated Note, are within such party’s
organizational powers and authority and have been duly authorized by all necessary
organizational action on its part;
(b) This Amendment has been duly executed and delivered by such party, and the
Agreement and, in the case of the Buyer, the Subordinated Note, constitute such party’s
legal, valid and binding obligations, enforceable against such party in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors’ rights generally and
by general principles of equity (regardless of whether enforcement is sought in a proceeding
in equity or at law), and
(c) As of the date hereof, no event has occurred and is continuing that will constitute
a Termination Event or a Potential Termination Event.
3. Conditions Precedent. This Amendment shall become effective as of the date first
above written upon execution by the Originator, the Buyer and the Agent of counterparts hereof and
delivery of such executed counterparts to the Agent.
4. Miscellaneous.
(a) CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF TEXAS.
(b) Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and the same agreement.
(c) Ratification of Agreement. Except as expressly amended hereby, the Agreement and
the Subordinated Note remain unaltered and in full force and effect and is hereby ratified and
confirmed.
<Signature pages follow>
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their duly authorized officers as of the date hereof.
FERRELLGAS, L.P.
| By: Ferrellgas, Inc., its General Partner | ||||||
By: |
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| Name: | ||||||
| Title: | ||||||
| FERRELLGAS RECEIVABLES, LLC | ||||||
By: |
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| Name: | ||||||
| Title: | ||||||
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By its signature below, the Agent, on behalf of the Purchasers, hereby consents to the foregoing
Amendment as of the date first above written:
| JPMORGAN CHASE BANK, N.A., as Agent | ||||||
By: |
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| Name: | ||||||
| Title: | ||||||
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