Exhibit 10.28
SECOND AMENDMENT
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of July 16, 2001, 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 and
amended by the First Amendment to Third Amended and Restated Credit Agreement
dated as of December 28, 2000 (as so amended, 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. Amendment. On the terms of this Amendment and subject to the
satisfaction of the conditions precedent set forth below in Section 2, the
definition of "L/C Commitment" in Section 1.01 of the Existing Credit Agreement
is hereby amended and restated to read in its entirety as follows:
"L/C Commitment" means the commitment of the Issuing Banks to Issue,
and the commitment of the Banks severally to participate in, Letters of
Credit from time to time Issued or outstanding under Article III, in an
aggregate amount not to exceed on any date the lesser of $80,000,000 and
the aggregate Facility B Commitment, as such amount may be reduced as a
result of a reduction in the L/C Commitment pursuant to Section 2.05;
provided that the L/C Commitment is a part of the aggregate Facility B
Commitment, rather than a separate, independent commitment.
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, and the confirmation
at the end of this Amendment shall have been executed and delivered by each
Guarantor.
(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.
(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: /s/ Kenneth A. Heinz
Name: Kenneth A. Heinz
Title: Treasurer
GENERAL PARTNER
FERRELLGAS, INC.
By: /s/ Kenneth A. Heinz
Name: Kenneth A. Heinz
Title: Treasurer
ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A., as Administrative Agent
By:
Name:
Title:
BANKS
BANK OF AMERICA, N.A., as a Bank
By:
Name:
Title:
WELLS FARGO BANK (TEXAS), N.A.
By:
Name:
Title:
BANK ONE, NA (CHICAGO OFFICE)
By:
Name:
Title:
FIRSTAR BANK N.A.
By:
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
By:
Name:
Title:
BNP PARIBAS
By:
Name:
Title:
BANK OF OKLAHOMA, N.A.
By:
Name:
Title:
THE FUJI BANK, LIMITED
By:
Name:
Title:
The undersigned hereby acknowledges and consents to the foregoing Second
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 July 16, 2001 BLUEBUZZ.COM, INC.
By: /s/ Kenneth A. Heinz
Name: Kenneth A. Heinz
Title: Secretary