FIRST AMENDMENT
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment"), dated as of October 9, 1998, 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 that is a
signatory to this Amendment (collectively, the "Banks") and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for the Banks (in such
capacity, the "Agent"), and amends that certain Second Amended and Restated
Credit Agreement, dated as of July 2, 1998 (as the same is in effect immediately
prior to the effectiveness of this Amendment, 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 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 Section
8.12(d) under the Existing Credit Agreement, 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, Section 8.12(d) of the Existing Credit Agreement is hereby amended to
read in its entirety as follows:
(d) such Restricted Payment (other than (x) Restricted Payments described
in clause (i) of the first paragraph of this Section 8.12 made during the fiscal
quarter ending January 31, 1997 that do not exceed $26,000,000 in the aggregate
or (y) any Restricted Payments described in clauses (iii) or (iv) of the first
paragraph of this Section 8.12) the amount of which, if made other than with
cash, to be determined in accordance with clause (c) of this Section 8.12, shall
not exceed an amount equal to (1) Consolidated Cash Flow of the Borrower and its
Subsidiaries for the period from and after October 31, 1996 through and
including the last day of the fiscal quarter ending immediately preceding the
date of the proposed Restricted Payment (the "Determination Period"), minus (2)
the sum of Consolidated Interest Expense of the Borrower and its Subsidiaries
for the Determination Period plus all capital expenditures (other than
Growth-Related Capital Expenditures and net of capital asset sales in the
ordinary course of business) made by the Borrower and its Subsidiaries during
the Determination Period plus the aggregate of all other Restricted Payments
(other than (x) Restricted Payments described in clause (i) of the first
paragraph of this Section 8.12 made during the fiscal quarter ending January 31,
1997 that do not exceed $26,000,000 in the aggregate or (y) any Restricted
Payments described in clauses (iii) or (iv) of the first paragraph of this
Section 8.12) made by the Borrower and its Subsidiaries during the period from
and after October 31, 1996 through and including the date of the proposed
Restricted Payment, plus (3) $30,000,000, plus (4) the excess, if any, of
consolidated working capital of the Borrower and its Subsidiaries at July 31,
1996 over consolidated working capital of the Borrower and its Subsidiaries at
the end of the fiscal year immediately preceding the date of the proposed
Restricted Payment, minus (5) the excess, if any, of consolidated working
capital of the Borrower and its Subsidiaries at the end of the fiscal year
immediately preceding the date of the proposed Restricted Payment over
consolidated working capital of the Borrower and its Subsidiaries at July 31,
1996. For purposes of this subsection 8.12(d), the calculation of Consolidated
Cash Flow shall give pro forma effect to Acquisitions (including all mergers and
consolidations), Asset Sales and other dispositions and discontinuances of
businesses or assets that have been made by such Person or any of its
Subsidiaries during the reference period or subsequent to such reference period
and on or prior to the date of calculation of Consolidated Cash Flow assuming
that all such Acquisitions, Asset Sales and other dispositions and
discontinuances of businesses or assets had occurred on the first day of the
reference period.
SECTION 2. Conditions to Effectiveness. The amendment 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) On or before the Amendment Effective Date, the 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 Agent.
(b) On or before the Amendment Effective Date, all corporate, partnership
and other proceedings taken or to be taken in connection with the transactions
contemplated by this Amendment, and all documents incidental thereto, shall be
reasonably satisfactory in form and substance to the Agent and its counsel, and
the Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as they may reasonably request.
(c) 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 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 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. 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 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.
(g) Subsidiaries. As of the Amendment Effective Date, the Borrower has no
Subsidiaries. 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) Fees and Expenses. The Borrower and the General Partner acknowledge
that all costs, fees and expenses 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.
(e) Governing Law. This Amendment shall be governed by and construed
according to the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the date first above written.
FERRELLGAS, L.P., a Delaware limited partnership
By: FERRELLGAS, INC.
Its: General Partner
By:/s/Kevin T. Kelly
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Name: Kevin T. Kelly
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Title:Chief Financial Officer
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FERRELLGAS, INC.
By:/s/Kevin T. Kelly
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Name: Kevin T. Kelly
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Title:Chief Financial Officer
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AGENT
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent
By:/s/Daryl G. Patterson
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Name: Daryl G. Patterson
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Title:Vice President
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BANKS
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
By:/s/Daryl G. Patterson
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Name: Daryl G. Patterson
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Title:Vice President
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NATIONSBANK, N.A.
By:/s/Linda J. Lawrence
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Name: Linda J. Lawrence
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Title:Vice President
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WELLS FARGO BANK, N.A.
By:/s/Charles D. Kirkham
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Name: Charles D. Kirkham
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Title:Vice President
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THE BANK OF NOVA SCOTIA
By:/s/F.C.H. Ashby
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Name: F.C.H. Ashby
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Title:Senior Manager Loan Operations
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PARIBAS
By:/s/Larry Robinson
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Name: Larry Robinson
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Title:Vice President
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By:/s/Rosine K. Matthews
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Name: Rosine K. Matthews
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Title:Vice President
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UNION BANK OF CALIFORNIA, N.A.
By:/s/Dustin Gaspari
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Name: Dustin Gaspari
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Title:Assistant Vice President
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THE BANK OF NEW YORK
By:/s/Richard A. Raffetto
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Name: Richard A. Raffetto
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Title:Vice President
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