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AMENDMENT AGREEMENT NO. 3
Dated as of December 28, 2000
in respect of
THERMOGAS TRUST NO. 1999-A
PARTICIPATION AGREEMENT
Dated as of December 15, 1999
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. AMENDMENT OF PARTICIPATION AGREEMENT...................................................2
Section 1.1. Amendment to Section 5.21..............................................................2
Section 1.2. Amendment to Appendix I................................................................2
SECTION 2. REPRESENTATIONS OF THE LESSEE..........................................................3
SECTION 3. AUTHORIZATION AND DIRECTION............................................................3
SECTION 4. EFFECTIVENESS..........................................................................3
SECTION 5. FEES AND EXPENSES......................................................................3
SECTION 6. MISCELLANEOUS..........................................................................3
Section 6.1. Construction...........................................................................3
Section 6.2. References.............................................................................4
Section 6.3. Headings and Table of Contents.........................................................4
Section 6.4. Counterparts...........................................................................4
Section 6.5. Governing Law..........................................................................4
AMENDMENT AGREEMENT NO. 3
THIS AMENDMENT AGREEMENT NO. 3 dated as of December 28, 2000 (this
"Amendment") is among FERRELLGAS, LP, a Delaware limited partnership (as
successor in interest to Thermogas L.L.C., a Delaware limited liability company
("Thermogas"), pursuant to the hereinafter defined Assumption Agreement (the
"Lessee"), FERRELLGAS, INC., a Delaware corporation (the "General Partner"),
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, in
its individual capacity and in its capacity as certificate trustee under the
Trust Agreement referred to below (the "Certificate Trustee"), FIRST SECURITY
TRUST COMPANY OF NEVADA, a Nevada banking corporation (the "Agent"), the Persons
named on Schedule I hereto who are signatories hereto, as Certificate Purchasers
(the "Certificate Purchasers") and the Persons named on Schedule II hereto who
are signatories hereto, as Lenders (the "Lenders").
RECITALS:
A. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Participation Agreement (as
hereinafter defined and as amended hereby).
B. Thermogas, The Williams Companies, Inc., a Delaware corporation, the
Certificate Trustee, the Agent, Banc of America Leasing & Capital, LLC, as the
original Certificate Purchaser and the original Lender, have heretofore entered
into that certain Participation Agreement dated as of December 15, 1999, as
amended by that certain Omnibus Amendment Agreement dated as of February 4, 2000
("Amendment No. 1") and that certain Omnibus Amendment Agreement No. 2 dated as
of April 18, 2000 ("Amendment No. 2") (as so amended by Amendment No. 1 and
Amendment No. 2, the "Participation Agreement").
C. Pursuant to that certain Assumption Agreement dated as of December
15, 1999 (the "Assumption Agreement"), the Lessee has assumed all of the
obligations of Thermogas under the Operative Documents.
D. The Lessee, the General Partner, the Certificate Trustee, the
Agent, the Certificate Purchasers and the Lenders now desire to amend the
Participation Agreement in the respects, but only in the respects, hereinafter
set forth.
NOW, THEREFORE, the Lessee, the General Partner, the Certificate
Trustee, the Agent, the Certificate Purchasers and the Lenders, in consideration
of good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENT OF PARTICIPATION AGREEMENT.
Section 1.1. Amendment to Section 5.21. Clause (z) of the second proviso of
Section 5.21 of the Participation Agreement shall be and is hereby amended and
restated in its entirety to read as follows:
"(z) the aggregate amount of Indebtedness of Lessee
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 1.2. Amendment to Appendix I. The definition of the term "Permitted
Lessee Investments" set forth in Appendix I to the Participation Agreement shall
be and is hereby amended and restated in its entirety to read as follows:
"Permitted Lessee Investments" means (a) any
Investments in Cash Equivalents; (b) any Investments in Lessee
or (subject to the provisions of Section 5.37) in a Restricted
Subsidiary of Lessee that is a Guarantor; (c) Investments by
Lessee or any Restricted Subsidiary of Lessee 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 Lessee 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, Lessee or a Restricted Subsidiary of Lessee
that is a Guarantor; (d) Investments by Lessee or any
Restricted Subsidiary in Unrestricted Subsidiaries and Joint
Ventures; provided that the amount of cash or property
contributed, loaned or otherwise advanced by Lessee 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 Lessee and (e)
contributions of accounts receivable made by Lessee or any
Restricted Subsidiary to SPEs in connection with Accounts
Receivable Securitizations permitted by Section 5.21; provided
that the aggregate amount of accounts receivable so
contributed, (net of cash dividends made by such SPEs to
Lessee or the Restricted Subsidiaries within one Business Day
of any such contribution) shall not exceed $30,000,000 at any
time outstanding.
SECTION 2. REPRESENTATIONS OF THE LESSEE.
As of the date hereof, Lessee represents and warrants as follows:
(a) all representations and warranties set forth in the Participation
Agreement, as amended by this Amendment, are true and correct as of the date
hereof and are incorporated herein by reference with the same force and effect
as though herein set forth in full; and
(b) no Lease Default or Lease Event of Default exists.
SECTION 3. AUTHORIZATION AND DIRECTION.
The Certificate Purchaser, by its execution hereof, authorizes the
Certificate Trustee to execute and deliver this Amendment.
SECTION 4. EFFECTIVENESS.
This Amendment shall not become effective until, and shall become
effective when, each and every one of the following conditions shall have been
satisfied:
(a) The Lessee, the General Partner, the Certificate Trustee, the Agent
and the Required Participants shall have executed this Amendment;
(b) The reasonable fees and expenses of the Certificate Purchasers
(including the fees and expenses of their special counsel) shall have been paid
in accordance with Section 5 hereof; and
(c) All proceedings taken in connection with this Amendment and any
documents relating thereto shall be reasonably satisfactory to Agent,
Certificate Trustee and the Required Participants and their respective counsel,
and each such Person shall have received copies of such documents as they may
reasonably request in connection therewith, all in form and substance reasonably
satisfactory to each such Person.
SECTION 5. FEES AND EXPENSES.
Lessee agrees to pay all the reasonable fees and expenses of the
Certificate Purchasers in connection with the negotiation, preparation,
approval, execution and delivery of this Amendment (including the fees and
expenses of their special counsel).
SECTION 6. MISCELLANEOUS.
Section 6.1. Construction. This Amendment shall be construed in connection
with and as part of the Participation Agreement, and except as modified and
expressly amended by this Amendment, all terms, conditions and covenants
contained in the Participation Agreement are hereby ratified and shall be and
remain in full force and effect.
Section 6.2. References. Any and all notices, requests, certificates and
other instruments executed and delivered after the execution and delivery of
this Amendment may refer to the Participation Agreement without making specific
reference to this Amendment but nevertheless all such references shall be deemed
to include this Amendment unless the context otherwise requires.
Section 6.3. Headings and Table of Contents. The headings of the
Sections of this Amendment and the Table of Contents are inserted for purposes
of convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof and any reference to numbered
Sections, unless otherwise indicated, are to Sections of this Amendment.
Section 6.4. Counterparts. This Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together only one Amendment.
SECTION 6.5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE).
Thermogas Trust No. 1999-A Amendment Agreement No. 3
IN WITNESS WHEREOF, the Lessee, the General Partner, the Certificate
Trustee, the Agent, the Certificate Purchasers and the Lenders have caused this
instrument to be executed, all as of the day and year first above written.
Lessee: FERRELLGAS, LP, as Lessee
By Ferrellgas, Inc., its General Partner
By:
Name: Kenneth A. Heinz
Title: Assistant Treasurer
General Partner: FERRELLGAS, INC.
By:
Name: Kenneth A. Heinz
Title: Assistant Treasurer
Certificate Trustee: FIRST SECURITY BANK, NATIONAL ASSOCIATION, in its
individual capacity and as Certificate Trustee
By:
Name:
Title:
Agent: FIRST SECURITY TRUST COMPANY OF NEVADA, not in its
individual capacity except as expressly stated
herein, but solely as Agent
By:
Name:
Title:
Certificate Purchaser: TRANSAMERICA EQUIPMENT FINANCIAL SERVICES CORPORATION,
as Certificate Purchaser
By:
Name:
Title:
Certificate Purchaser: HELLER FINANCIAL LEASING, INC., as Certificate Purchaser
By:
Name:
Title:
Lender: BANC OF AMERICA LEASING & CAPITAL, LLC, as Lender
By:
Name:
Title:
Lender: TRANSAMERICA EQUIPMENT FINANCIAL SERVICES CORPORATION,
as Lender
By:
Name:
Title:
Lender: PARIBAS, as Lender
By:
Name:
Title:
By:
Name:
Title:
Lender: HELLER FINANCIAL LEASING, INC., as Lender
By:
Name:
Title:
Lender: DIME COMMERCIAL CORP., as Lender
By:
Name:
Title:
Lender: BANK ONE, N.A. (Chicago Office), as Lender
By:
Name:
Title:
Lender: THE FUJI BANK, LIMITED, as Lender
By:
Name:
Title:
Lender: LASALLE BANK NATIONAL ASSOCIATION, as Lender
By:
Name:
Title:
Lender: FIRSTAR BANK, N.A., as Lender
By:
Name:
Title:
Syndication Agent: BANK ONE, N.A. (Chicago Office), as Syndication Agent
By:
Name:
Title:
Documentation Agent: BANC OF AMERICA LEASING & CAPITAL, LLC, as
Documentation Agent
By:
Name:
Title:
-1-
SCHEDULE I
[CERTIFICATE PURCHASERS]
SCHEDULE II
[LENDERS]