Exhibit 99.3
FIRST AMENDMENT TO FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
(herein called this "Amendment") dated as of March 9, 2004, by and among
FERRELLGAS, L.P., a Delaware limited partnership (the "Borrower"), FERRELLGAS,
INC., a Delaware corporation and sole general partner of the Borrower (the
"General Partner"), BANK OF AMERICA, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer, and the Lenders party to the Original Agreement defined
below (collectively, the "Lenders" and individually, a "Lender").
W I T N E S S E T H:
WHEREAS, the Borrower, the General Partner, Administrative Agent and
the Lenders entered into that certain Fourth Amended and Restated Credit
Agreement dated as of December 10, 2002 (as amended, supplemented, or restated
to the date hereof, the "Original Agreement"), for the purpose and consideration
therein expressed, whereby the Lenders became obligated to make loans to the
Borrower as therein provided; and
WHEREAS, the Borrower, the General Partner, Administrative Agent and the
Lenders desire to amend the Original Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans that may hereafter be made by the Lenders to the Borrower, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1 Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
Section 1.2 Other Defined Terms. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this Section 1.2.
"Amendment" means this First Amendment to Fourth Amended and Restated
Credit Agreement.
"Credit Agreement" means the Original Agreement as amended hereby.
ARTICLE II.
Amendments to Original Agreement
Section 2.1 Definition of Blue Rhino Acquisition. The following definition
of "Blue Rhino Acquisition" is hereby added to Section 1.01 of the Original
Agreement immediately following the definition of "Base Rate Loan":
"Blue Rhino Acquisition" means the Borrower's acquisition of Blue Rhino
Corporation ("Blue Rhino") under the terms of the Agreement and Plan of Merger
dated as of February 8, 2004 among FCI Trading Corp., Diesel Acquisition LLC,
Ferrell Companies, Inc., and Blue Rhino.
Section 2.2 Definition of Consolidated Net Income. Clause (b) of the
definition of "Consolidated Net Income" in Section 1.01 of the Original
Agreement is hereby amended in its entirety to read as follows:
"(b) the Net Income of any Person that is a Restricted Subsidiary
(other than a Wholly-Owned Subsidiary) shall be excluded to the extent that
dividends and distributions of that net income are not at the date of
determination permitted by the terms of its charter or any judgment,
decree, order, statute, rule, contract or other prohibition,"
Section 2.3 Definition of Permitted Investment. Clause (d)(i) of the
definition of "Permitted Investment" in Section 1.01 of the Original Agreement
is amended by replacing "$15,000,000" with "$25,000,000".
Section 2.4 Other General Partner Obligations. Paragraph (c) of Section
6.14 of the Original Agreement is hereby amended in its entirety to read as
follows:
"(c) The General Partner, for so long as it is the general partner of
the Borrower, shall not enter into or conduct any business or incur any
debts or liabilities except in connection with or incidental to its
performance of the activities on behalf of the MLP or the Partnership as
required or authorized by the partnership agreement of the MLP or the
Partnership Agreement."
Section 2.5 Designations With Respect to Subsidiaries. Paragraph (d) of
Section 6.16 of the Original Agreement is hereby amended in its entirety to read
as follows:
"(d) In the case of (i) the designation of any Unrestricted Subsidiary
as a Restricted Subsidiary or (ii) the acquisition or formation of a
Restricted Subsidiary, such new Restricted Subsidiary shall be deemed to
have made or acquired all Investments owned by it and incurred all
Indebtedness and other obligations owing by it and all Liens to which it or
any of its properties are subject, on the date of such designation,
acquisition, or formation."
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Section 2.6 Asset Sales. Clause (i) of paragraph (a) of Section 7.02 of the
Original Agreement is hereby amended to substitute the phrase "sales, licenses
or leases of inventory" for the phrase "sales of inventory".
Section 2.7 Acquisitions. The last sentence of Section 7.04 of the Original
Agreement is hereby amended in its entirety to read as follows:
"Nothing in this Section 7.04 or in Section 7.21 shall prohibit (x)
the making by the Borrower of a Permitted Acquisition indirectly through
the General Partner, the MLP or any of its or their Affiliates in a series
of substantially contemporaneous transactions in which the Borrower or any
Restricted Subsidiary (within the limits of Section 7.20) shall ultimately
own the assets that are the subject of such Permitted Acquisition or (y)
the assumption of Acquired Debt in connection therewith to the extent such
Acquired Debt is (if not otherwise permitted to be incurred by the Borrower
pursuant to this Agreement) upon such assumption immediately repaid (with
the proceeds of Committed Loans or otherwise)."
Section 2.8 Use of Proceeds. Section 7.07 of the Original Agreement is
hereby amended in its entirety to read as follows:
"(a) The Borrower shall not use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally
incurred for such purpose; provided that the Borrower may use the proceeds
of a Credit Extension to purchase or carry margin stock, so long as the
purchase is made in compliance with Regulation U and Regulation X of the
FRB and the Borrower has delivered to the Administrative Agent all forms,
if any, required to be filed under such regulations.
(b) The Borrower shall not use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to acquire any security in any transaction that is subject to
Section 13 or 14 of the Exchange Act, other than the Blue Rhino
Acquisition."
Section 2.9 Joint Ventures. Section 7.10 of the Original Agreement is
hereby amended to delete "(a)" from the beginning thereof.
Section 2.10 Lease Obligations. Clause (a) of Section 7.11 of the Original
Agreement is hereby amended to replace "$40,000,000" with "$60,000,000".
Section 2.11 Change in Business. Section 7.l5 of the Original Agreement is
amended to replace the phrase "on the date of this Agreement" with the phrase
"on the date of the Blue Rhino Acquisition".
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Section 2.12 Operations through Restricted Subsidiaries. Paragraphs (c),
(d), (e), and (f) of Section 7.20 of the Original Agreement are hereby amended
in their entirety to read as follows:
"(c) the Consolidated Cash Flow of such Restricted Subsidiary and all
other Restricted Subsidiaries for any fiscal year (but including only that
portion of the Consolidated Cash Flow derived from the Restricted
Subsidiaries acquired in connection with the Blue Rhino Acquisition that is
greater than $5,000,000 per fiscal year) shall not exceed 20% of the
Consolidated Cash Flow of the Borrower and the Restricted Subsidiaries for
such fiscal year;"
"(d) the value of the assets of such Restricted Subsidiary and all
other Restricted Subsidiaries for any fiscal year (but including only that
portion of the book value of the assets of the Restricted Subsidiaries
acquired in connection with the Blue Rhino Acquisition that is greater than
$50,000,000) shall not exceed 20% of the consolidated value of the assets
of the Borrower and the Restricted Subsidiaries for such fiscal year, as
determined in accordance with GAAP;"
"(e) such Restricted Subsidiary is organized under the laws of (i) the
United States or any State thereof, (ii) the Republic of Mexico or a
political subdivision thereof, or (iii) Canada or a political subdivision
thereof; and"
"(f) such Restricted Subsidiary maintains substantially all of its
assets and conducts substantially all of its business within the United
States; provided that (i) Restricted Subsidiaries organized under the laws
of the Republic of Mexico or a political subdivision of the Republic of
Mexico may maintain assets and conduct business in the Republic of Mexico
and (ii) Restricted Subsidiaries organized under the laws of Canada or a
political subdivision of Canada may maintain assets and conduct business in
Canada."
ARTICLE III.
Conditions of Effectiveness
This Amendment shall become effective as of the date first above written
when and only when Administrative Agent shall have received this Amendment duly
executed and delivered by the Borrower, the General Partner, and the Required
Lenders, provided, however, that the amendments provided for in Section 2.3 and
Section 2.10 hereof shall become effective concurrently with the closing of the
Blue Rhino Acquisition.
ARTICLE IV.
Confirmation; Representations and Warranties
Section 4.1 Blue Rhino Subsidiaries to Guarantee. The Borrower confirms its
obligation, pursuant to Section 7.20(a) of the Credit Agreement, to cause each
Restricted Subsidiary acquired in connection with the Blue Rhino Acquisition to
execute a Guaranty guaranteeing payment of the Obligations and to deliver an
opinion of counsel to such Restricted Subsidiary addressed to Administrative
Agent and the Lenders opining as to the due authorization, execution, delivery
and enforceability of such Guaranty in form and substance acceptable to
Administrative Agent.
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Section 4.2 Representations and Warranties of the Borrower. In order to
induce each Lender to enter into this Amendment, the Borrower represents and
warrants to each Lender that:
(a) The representations and warranties of the Borrower contained in the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof, except to the extent that the facts on which such
representations and warranties are based have been changed by the extensions of
credit under the Credit Agreement or that such representations and warranties
specifically refer to an earlier date in which case they shall be true and
correct as of such earlier date.
(b) The Borrower and the General Partner are duly authorized to execute and
deliver this Amendment and have duly taken all corporate action necessary to
authorize the execution and delivery of this Amendment and to authorize the
performance of the obligations of the Borrower and the General Partner
hereunder.
(c) The execution and delivery by the Borrower and the General Partner of
this Amendment, the performance by the Borrower and the General Partner of their
obligations hereunder and the consummation of the transactions contemplated
hereby do not and will not conflict with any provision of law, statute, rule or
regulation or of the Organizational Documents of the Borrower or the General
Partner, or of any material agreement, judgment, license, order or permit
applicable to or binding upon the Borrower or the General Partner, or result in
the creation of any lien, charge or encumbrance upon any assets or properties of
the Borrower or the General Partner. Except for those which have been obtained,
no consent, approval, authorization or order of any court or governmental
authority or third party is required in connection with the execution and
delivery by the Borrower and the General Partner of this Amendment or to
consummate the transactions contemplated hereby.
(d) When duly executed and delivered, each of this Amendment and the Credit
Agreement will be a legal and binding obligation of the Borrower and the General
Partner, enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or similar laws of general application relating to the
enforcement of creditors' rights and by equitable principles of general
application.
ARTICLE V.
Miscellaneous
Section 5.1 Ratification of Agreements. The Original Agreement as hereby
amended is hereby ratified and confirmed in all respects. The Loan Documents, as
they may be amended or affected by this Amendment, are hereby ratified and
confirmed in all respects. Any reference to the Credit Agreement in any Loan
Document shall be deemed to be a reference to the Original Agreement as hereby
amended. The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Lenders under the Credit Agreement, the Notes, or any other Loan
Document nor constitute a waiver of any provision of the Credit Agreement, the
Notes or any other Loan Document.
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Section 5.2 Survival of Agreements. All representations, warranties,
covenants and agreements of the Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loans, and shall further survive until
all of the Obligations are paid in full.
Section 5.3 Loan Documents. This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto.
Section 5.4 Governing Law. This Amendment shall be governed by and
construed in accordance the laws of the State of New York and any applicable
laws of the United States of America in all respects, including construction,
validity and performance.
Section 5.5 Counterparts; Fax. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment. This Amendment may be validly executed by facsimile or other
electronic transmission.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
FERRELLGAS, L.P.
By: Ferrellgas, Inc., as its General Partner
By:/s/ Kevin T. Kelly
-----------------------------------------
Kevin T. Kelly, Senior Vice President and
Chief Financial Officer
FERRELLGAS, L.P.
By: /s/ Kevin T. Kelly
-----------------------------------------
Kevin T. Kelly, Senior Vice President and
Chief Financial Officer
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BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Claire M. Liu
-------------------------------------------
Name: Claire M. Liu
Title: Managing Director
BANK OF AMERICA, N.A., as a Lender, L/C Issuer
and Swing Line Lender
By: /s/ Claire M. Liu
-------------------------------------------
Name: Claire M. Liu
Title: Managing Director
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BNP PARIBAS, as a Lender and L/C Issuer
By: /s/ Richard J. Wernli
------------------------------------
Name: Richard J. Wernli
Title: Director
By: /s/ Edward K. Chin
------------------------------------
Name: Edward K. Chin
Title: Managing Director
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BANK ONE, NA (MAIN OFFICE CHICAGO), as a Lender
By: /s/ Jane Bek Keil
--------------------------------------------
Name: Jane Bek Keil
Title: Director
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WELLS FARGO BANK TEXAS, N.A., as a Lender
By: /s/ J. Alan Alexander
--------------------------------------
Name: J. Alan Alexander
Title: Vice President
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LASALLE BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ James C. Binz
-------------------------------------------
Name: James C. Binz
Title: First Vice President
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BANK OF OKLAHOMA, NATIONAL ASSOCIATION, as a Lender
By: /s/ T. Coy Gallatin
------------------------------------------------
Name: T. Coy Gallatin
Title: Senior Vice President
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HIBERNIA NATIONAL BANK, as a Lender
By: /s/ Connie Disbrow
--------------------------------
Name: Connie Disbrow
Title: Relationship Manager
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SOCIETE GENERALE, as a Lender
By: /s/ Emmanuel Chesneau
--------------------------------
Name: Emmanual Chesneau
Title: Director
By: /s/ Barbara Paulsen
--------------------------------
Name: Barbara Paulsen
Title: Director
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U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ John P. Mills
----------------------------------------
Name: John P. Mills
Title: Vice President
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CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN
ISLANDS BRANCH, as a Lender
By: /s/ James Moran
--------------------------------------------------
Name: James Moran
Title: Director
By: /s/ Denise Alvarez
--------------------------------------------------
Name: Denise Alvarez
Title: Associate
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