Exhibit 10.8
AMENDMENT NO. 4 TO RECEIVABLES PURCHASE AGREEMENT
This AMENDMENT NO. 4 TO ReceivableS PURCHASE Agreement, dated
as of September 23, 2003 (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.
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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 21, 2004.
1.2. Section 9.1(f)(iii) is hereby amended and restated in its
entirety to read as follows:
(iii) the average of the Dilution Trigger Ratios for the three
most recently ended Measurement Periods shall exceed (A) 2.75% for the three
Measurement Periods ending in July, August, September or October of any year, or
(B) 2.40% for the three Measurement Periods ending in November, December,
January, February, March, April, May or June of any year.
1.3. The following new subsection (c) is hereby added to the
end of Section 14.5 of the Existing Agreement:
(c) Notwithstanding any other express or implied agreement to
the contrary, the parties hereto agree that each of them and each of their
employees, representatives, and other agents may disclose to any and all
Persons, without limitation of any kind, the tax treatment and tax structure of
the transaction and all materials of any kind (including opinions or other tax
analyses) that are provided to any of them relating to such tax treatment and
tax structure, except where confidentiality is reasonably necessary to comply
with U.S. federal or state securities laws. For purposes of this paragraph, the
terms "tax treatment" and "tax structure" have the meanings specified in
Treasury Regulation section 1.6011-4(c).
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.
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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
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BANK ONE, NA [MAIN OFFICE CHICAGO],
INDIVIDUALLY AND AS AGENT
By: /s/ Leo V. Loughead
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Name: Leo V. Loughead
Title: Director, Capital Markets
JUPITER SECURITIZATION CORPORATION
By: /s/ Leo V. Loughead
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Name: Leo V. Loughead
Title: Authorized Signatory
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