Exhibit 10.11
AMENDMENT NO. 3 TO RECEIVABLES PURCHASE AGREEMENT
This AMENDMENT NO. 3 TO ReceivableS PURCHASE Agreement, dated as of
September 24, 2002 (this "Amendment"), is entered into by Ferrellgas
Receivables, LLC, a Delaware limited liability company ("Seller"), Ferrellgas,
L.P., a Delaware limited partnership, as "Servicer," Jupiter Securitization
Corporation ("Conduit"), and Bank One, NA (Main Office Chicago), individually as
a Financial Institution and as Agent for the Purchasers (as heretofore amended,
the "Existing Agreement"). The Existing Agreement, as amended hereby, is
hereinafter referred to as the "Agreement." 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 as
hereinafter set forth;
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. ----------
1.1. The definition of "Liquidity Termination Date" in the
Existing Agreement is hereby amended and restated in its entirety to
read as follows:
"Liquidity Termination Date" means September 23, 2003.
1.2. Section 9.1(k) is hereby amended and restated in its
entirety to read as follows:
(k) (i) As of the last day of any Measurement Period ending in
June through and including November, the average of the three
Measurement Periods then most recently ended for the Outstanding
Balance of all Receivables included in the Purchaser Interests
(regardless of whether they are Eligible Receivables on the date of
determination) as to which any payment, or part thereof, remains
unpaid for 91 days or more from the original due date for such payment
shall exceed 22% of the Outstanding Balance of all Receivables, or
(ii) as of the last day of any Measurement Period ending in December
through and including May, the average of the three Measurement
Periods then most recently ended for the Outstanding Balance of all
Receivables included in the Purchaser Interests (regardless of whether
they are Eligible Receivables on the date of determination) as to
which any payment, or part thereof, remains unpaid for 91 days or more
from the original due date for such payment shall exceed 16.5% of the
Outstanding Balance of all Receivables
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 as amended
hereby, 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, as amended hereby, constitutes such
party's legal, valid and binding obligation, 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 NEW YORK.
(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 remains unaltered and in full force and effect
and is hereby ratified and confirmed.
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: /s/ Kevin T. Kelly
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Name: Kevin T. Kelly
Title: Chief Financial Officer
FERRELLGAS RECEIVABLES, LLC
By: /s/ Kevin T. Kelly
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Name: Kevin T. Kelly
Title: Chief Financial Officer
BANK ONE, NA [MAIN OFFICE CHICAGO],
INDIVIDUALLY AND AS AGENT
By: /s/ Leo V. Loughead
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Name: Leo V. Loughead
Title: Authorized Signatory
JUPITER SECURITIZATION CORPORATION
By: /s/ Leo V. Loughead
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Name: Leo V. Loughead
Title: Authorized Signatory