FIRST AMENDMENT
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment"), dated as of December 28, 2000, is entered into by
and among FERRELLGAS, L.P., a Delaware limited partnership (the "Borrower"),
FERRELLGAS, INC., a Delaware corporation and the sole general partner of the
Borrower (the "General Partner"), each of the financial institutions referred to
as Banks in the Existing Credit Agreement referred to below (collectively, the
"Banks") and BANK OF AMERICA, N.A., as administrative agent (in such capacity,
the "Administrative Agent"), and as documentation agent, and amends that certain
Third Amended and Restated Credit Agreement, dated as of April 18, 2000 (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, the General Partner, the Administrative 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 the Existing
Credit Agreement in the respects set forth below in this Amendment, 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. Amendments. On the terms of this Amendment and subject to the
satisfaction of the conditions precedent set forth below in Section 2,
(a) The definition of "Permitted Investments" in Section 1.01 of the Existing
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Permitted Investments" means (a) any Investments in
Cash Equivalents; (b) any Investments in the Borrower or
(subject to the provisions of Section 8.21) in a Restricted
Subsidiary of the Borrower that is a Guarantor; (c)
Investments by the Borrower or any Restricted Subsidiary of
the Borrower in a Person in compliance with the other
provisions of this Agreement, if as a result of such
Investment (i) such Person becomes a Restricted Subsidiary of
the Borrower and a Guarantor or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated
into, the Borrower or a Restricted Subsidiary of the Borrower
that is a Guarantor; (d) Investments by the Borrower or any
Restricted Subsidiary in Unrestricted Subsidiaries and Joint
Ventures; provided that the amount of cash or property
contributed, loaned or otherwise advanced by the Borrower or
such Restricted Subsidiaries in respect of such Investments
may not exceed at any time an aggregate amount equal to the
greater of (i) $15,000,000 and (ii) 10% of Consolidated Cash
Flow for the most recently ended four fiscal quarters of the
Borrower; and (e) contributions of accounts receivable made by
the Borrower or any Restricted Subsidiary to SPE's in
connection with Accounts Receivable Securitizations permitted
by Section 8.05; provided that the aggregate amount of
accounts receivable so contributed (net of cash dividends made
by such SPE's to the Borrower or the Restricted Subsidiaries
within one Business Day of any such contribution) shall not
exceed $30,000,000 at any one time outstanding.
(b) Clause (z) of the second proviso of Section 8.05 of the Existing Credit
Agreement is hereby amended and restated to read in its entirety as follows:
(z) the aggregate amount of Indebtedness of the Borrower and
its Subsidiaries through one or more SPEs in connection with
Accounts Receivable Securitizations at any one time
outstanding shall not exceed (i) during the period from
December 28, 2000 through and including April 30, 2001,
$100,000,000 and (ii) at any other time, $60,000,000.
SECTION 2. Conditions to Effectiveness. The amendments set forth in Section 1 of
this Amendment shall become effective only upon the satisfaction of all of the
following conditions precedent (the date of satisfaction of all such conditions
being referred to as the "Amendment Effective Date"):
(a) The Administrative Agent shall have received, on behalf of the Banks, this
Amendment, duly executed and delivered by the Borrower, the General Partner, the
Majority Banks and the Administrative Agent.
(b) 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 Administrative
Agent and the Banks to enter into this Amendment and to amend the Existing
Credit Agreement in the manner provided in this Amendment, the Borrower and the
General Partner represent and warrant to the Administrative Agent and each Bank
as of the Amendment Effective Date as follows:
(a) Power and Authority. The Borrower and the General Partner 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 and the General Partner and the performance of the Amended Credit
Agreement by the Borrower and the General Partner have been duly authorized by
all necessary action, and this Amendment has been duly executed and delivered by
the Borrower and the General Partner.
(c) Enforceability. Each of this Amendment and the Amended Credit Agreement
constitutes the legal, valid and binding obligation of the Borrower and the
General Partner enforceable against the Borrower and the General Partner 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 and the General Partner
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 and the General
Partner of this Amendment and the performance by the Borrower and the General
Partner of each of this Amendment and 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
or the General Partner, 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 or the General
Partner, as the case may be, or any material agreement, indenture, lease or
instrument binding upon the Borrower or the General Partner 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
or the General Partner of this Amendment.
(f) Representations and Warranties in the Credit Agreement. The Borrower and the
General Partner 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.
SECTION 4. Miscellaneous.
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(a) Reference to and Effect on the Existing Credit Agreement and the other
Loan 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) Expenses. The Borrower and the General Partner acknowledge that all costs
and expenses of the Administrative Agent 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. Transmission by telecopier of an
executed counterpart of this Amendment shall be deemed to constitute due and
sufficient delivery of such counterpart.
(e) Governing Law. This Amendment shall be governed by and construed
according to the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
BORROWER
FERRELLGAS, L.P., a Delaware limited partnership
By: Ferrellgas, Inc.
Its: General Partner
By:
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Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
GENERAL PARTNER
FERRELLGAS, INC.
By:
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Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A., as Administrative Agent
By:
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Name:
Title:
BANKS
BANK OF AMERICA, N.A., as a Bank
By:
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Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
XXXXX FARGO BANK (TEXAS), N.A.
By:
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Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
BANK ONE, NA (CHICAGO OFFICE)
By:
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Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
FIRSTAR BANK N.A.
By:
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Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
LASALLE BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
BNP PARIBAS
By:
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Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
BANK OF OKLAHOMA, N.A.
By:
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Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
THE FUJI BANK, LIMITED
By:
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Name:
Title:
The undersigned hereby acknowledges and consents to the foregoing First
Amendment to Third Amended and Restated Credit Agreement, reaffirms the terms of
its Continuing Guaranty in favor of the Administrative Agent and acknowledges
that such Continuing Guaranty remains in full force and effect in accordance
with its terms.
Dated as of December 28, 2000 XXXXXXXX.XXX, INC.
By:
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Name:
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Title:
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