FIRST AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of November 7, 1997, is entered into by and among
FERRELLGAS, L.P., a Delaware limited partnership (the "Borrower"), STRATTON
INSURANCE COMPANY, INC., a Vermont corporation and a wholly-owned subsidiary of
Borrower ("Stratton"), FERRELLGAS, INC., a Delaware corporation and the sole
general partner of Borrower (the "General Partner"), each of the financial
institutions that is a signatory to this Amendment (collectively, the "Banks")
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for the
Banks (in such capacity, the "Agent"), and amends that certain Amended and
Restated Credit Agreement dated as of July 31, 1996 (as the same is in effect
immediately prior to the effectiveness of this Amendment, the "Existing Credit
Agreement" and as the same may be amended, supplemented or modified and in
effect from time to time, the "Credit Agreement"), by and among the Borrower,
Xxxxxxxx, the General Partner, the Agent and the Banks from time to time party
to the Credit Agreement. Capitalized terms used and not otherwise defined in
this Amendment shall have the same meanings in this Amendment as set forth in
the Credit Agreement, and the rules of interpretation set forth in Section 1.02
of the Credit Agreement shall be applicable to this Amendment.
RECITAL
The Borrower has requested that the Banks amend Section
8.12(d) under the Existing Credit Agreement, and the Banks are willing to agree
to so amend the Existing Credit Agreement on the terms and subject to the
conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. Amendment. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth below in
Section 2, Section 8.12(d) of the Existing Credit Agreement is amended in its
entirety as follows:
"(d) such Restricted Payment (other than (x) Restricted Payments described
in clause (i) of the first paragraph of this Section 8.12 made during the fiscal
quarter ending January 31, 1997 that do not exceed $26,000,000 in the aggregate
or (y) any Restricted Payments described in clauses (iii) or (iv) of the first
paragraph of this Section 8.12), the amount of which, if made other than with
cash, to be determined in accordance with clause (c) of this Section 8.12, shall
not exceed an amount equal to the excess of (A) Consolidated Cash Flow of the
Borrower and its Subsidiaries for the period from and after October 31, 1996
through and including the last day of the fiscal quarter ending immediately
preceding the date of the proposed Restricted Payment (the "Determination
Period") over (B) the sum of Consolidated Interest Expense of the Borrower and
its Subsidiaries for the Determination Period plus all capital expenditures
(other than Growth-Related Capital Expenditures) made by the Borrower and its
Subsidiaries during the Determination Period plus the aggregate of all other
Restricted Payments (other than (x) Restricted Payments described in clause (i)
of the first paragraph of this Section 8.12 made during the fiscal quarter
ending January 31, 1997 that do not exceed $26,000,000 in the aggregate or (y)
any Restricted Payments described in clauses (iii) or (iv) of the first
paragraph of this Section 8.12) made by the Borrower and its Subsidiaries during
the period from and after October 31, 1996 through and including the date of the
proposed Restricted Payment plus (C) $30,000,000; and"
SECTION 2. Conditions to Effectiveness. The amendment set
forth in Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent on or prior to
November 7, 1997 (the date of satisfaction of all such conditions being referred
to as the "Amendment Effective Date"):
(a) On or before the Amendment Effective Date, the Borrower shall deliver
to the Agent, on behalf of the Banks, this Amendment, duly executed and
delivered by the Borrower, the General Partner, Xxxxxxxx, Ferrellgas Finance
Corp. ("Finance Corp."), the Banks and the Agent.
(b) On or before the Amendment Effective Date, all corporate, partnership
and other proceedings taken or to be taken in connection with the transactions
contemplated by this Amendment, and all documents incidental thereto, shall be
reasonably satisfactory in form and substance to the Agent and its counsel, and
the Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as they may reasonably request.
(c) All governmental actions or filings necessary for the execution,
delivery and performance of this Amendment shall have been made, taken or
obtained, and no order, statutory rule, regulation, executive order, decree,
judgment or minjunction shall have been enacted, e ntered, issued, promulgated
or enforced by any court or other governmental entity which prohibits or
restricts the transactions contemplated by thi Amendment nor shall any action
have been commenced or threatened seeking any injunction or any restraining or
other order to prohibit, restrain, invalidate or set aside the transactions
contemplated by this Amendment.
(d) The representations and warranties set forth in this Amendment shall be
true and correct as of the Amendment Effective Date.
SECTION 3. Representations and Warranties. In order to induce
the Banks to enter into this Amendment and to amend the Existing Credit
Agreement in the manner provided in this Amendment, the Borrower, the General
Partner, Finance Corp. and Xxxxxxxx represent and warrant to each Bank as of the
Amendment Effective Date as follows:
(a) Power and Authority. The Borrower, the General Partner, Xxxxxxxx and
Finance Corp. have all requisite corporate or partnership power and authority to
enter into this Amendment and to carry out the transactions contemplated by, and
perform their respective obligations under, the Existing Credit Agreement as
amended by this Amendment (hereafter referred to as the "Amended Credit
Agreement").
(b) Authorization of Agreements. The execution and delivery of this
Amendment by the Borrower, the General Partner, Xxxxxxxx and Finance Corp. and
the performance of the Amended Credit Agreement by the Borrower, the General
Partner, Xxxxxxxx and Finance Corp. have been duly authorized by all necessary
action, and this Amendment has been duly executed and delivered by the Borrower,
the General Partner, Xxxxxxxx
and Finance Corp.
(c) Enforceability. The Amended Credit Agreement constitutes the legal,
valid and binding obligation of the Borrower, the General Partner, Xxxxxxxx and
Finance Corp. enforceable against the Borrower, the General Partner, Xxxxxxxx
and Finance Corp. in accordance with its terms, except as may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights in general. The enforceability of the obligations of the
Borrower, the General Partner, Xxxxxxxx and Finance Corp. hereunder is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(d) No Conflict. The execution and delivery by the Borrower, the General
Partner, Xxxxxxxx and Finance Corp. of this Amendment and the performance by the
Borrower, the General Partner, Xxxxxxxx and Finance Corp. of the Amended Credit
Agreement do not and will not (i) contravene, in any material respect, any
provision of any law, regulation, decree, ruling, judgment or order that is
applicable to the Borrower, the General Partner, Xxxxxxxx or Finance Corp., as
the case may be, or their respective properties or other assets, (ii) result in
a breach of or constitute a default under the charter, bylaws or other
organizational documents of the Borrower, the General Partner, Xxxxxxxx, or
Finance Corp., as the case may be, or any material agreement, indenture, lease
or instrument binding upon the Borrower, the General Partner, Xxxxxxxx, or
Finance Corp., or their respective properties or other assets or (iii) result in
the creation or imposition of any Liens on their respective properties other
than as permitted under the Credit Agreement.
(e) Governmental Consents. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the Borrower, the
General Partner, Xxxxxxxx or Finance Corp. of this Amendment.
(f) Representations and Warranties in the Credit Agreement. The Borrower,
the General Partner and Xxxxxxxx confirm that as of the Amendment Effective Date
the representations and warranties contained in Article VI of the Credit
Agreement are (before and after giving effect to this Amendment) true and
correct in all material respects (except to the extent any such representation
and warranty is expressly stated to have been made as of a specific date, in
which case it shall be true and correct as of such specific date) and that no
Default has occurred and is continuing.
(g) Subsidiaries. As of the Amendment Effective Date, the Borrower has no
Subsidiaries other than Finance Corp and Xxxxxxxx.
SECTION 4. Miscellaneous.
(a) Reference to and Effect on the Existing Credit Agreement and the Other
Basic Documents.
(i) Except as specifically amended by this Amendment and the documents
executed and delivered in connection herewith, the Existing Credit Agreement and
the other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(ii) The execution and delivery of this Amendment and performance of the
Amended Credit Agreement shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver of any right,
power or remedy of the Banks under, the Existing Credit Agreement or any of the
other Loan Documents.
(iii) Upon the conditions precedent set forth herein being satisfied, this
Amendment shall be construed as one with the Existing Credit Agreement, and the
Existing Credit Agreement shall, where the context requires, be read and
construed throughout so as to incorporate this Amendment.
(b) Fees and Expenses. The Borrower, the General Partner and Xxxxxxxx
acknowledge that all costs, fees and expenses incurred in connection with this
Amendment will be paid in accordance with Section 11.04 of the Existing Credit
Agreement.
(c) Headings. Section and subsection headings in this Amendment are
included for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose or be given any substantive effect.
(d) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(e) Governing Law. This Amendment shall be governed by and construed
according to the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
FERRELLGAS, L.P., a Delaware limited partnership
By: FERRELLGAS, INC.
Its: General Partner
By:
Name:
Title:
FERRELLGAS, INC.
By:
Name:
Title:
XXXXXXXX INSURANCE COMPANY, INC.
By:
Name:
Title:
AGENT
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Agent
By:
Name:
Title:
BANKS
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
By:
Name:
Title:
NATIONSBANK OF TEXAS, N.A.
By:
Name:
Title:
XXXXX FARGO BANK, N.A.
By:
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
BANKBOSTON, N.A. (FORMERLY KNOWN AS
THE FIRST NATIONAL BANK OF BOSTON)
By:
Name:
Title:
BANQUE PARIBAS
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
Name:
Title:
The undersigned hereby acknowledges and consents to the foregoing First
Amendment to Amended and Restated Credit Agreement, makes the representations
and warranties set forth in the foregoing First Amendment to Amended and
Restated Credit Agreement, reaffirms the terms of its Amended and Restated
Continuing Guaranty with Bank of America National Trust and Savings Association,
as Agent and acknowledges that such Amended and Restated Continuing Guaranty
remains in full force and effect in accordance with its terms.
FERRELLGAS FINANCE CORP.
By:
Name:
Title:
