SECOND AMENDMENT
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment"), dated as of April 27, 1999, 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 "Administrative 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 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 Sections 6.20,
7.13 and 8.20 of 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. Amendments. On the terms of this Amendment and subject to the
satisfaction of the conditions precedent set forth below in Section 2:
(a) Section 6.20(b) of the Existing Credit Agreement is hereby
amended by deleting the reference therein to "one year" and substituting in lieu
thereof "two years."
(b) Section 7.13 of the Existing Credit Agreement is hereby amended to read
in its entirety as follows:
"The Borrower and its Affiliates shall comply with
the Borrower's trading position policy and supply inventory position
policy as in effect on March 31, 1999, 1999; provided, however, that
the Borrower and its Affiliates may, during any period of four
consecutive fiscal quarters, (a) increase the stop loss limit specified
in either the trading position or supply inventory position policy by
up to 100% of the amount of such limit as in effect on July 5, 1994 and
(b) increase the volume limit specified in either of such policies on
the number of barrels of a single product or of all products in the
aggregate by up to 100% of each such number as in effect on July 5,
1994."
(c) Section 8.20(b) of the Existing Credit Agreement is hereby
amended by deleting the reference therein to "one year" and substituting in lieu
thereof "two years."
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) On or before the Amendment Effective Date, 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.
(b) On or before the Amendment Effective Date, the
Administrative Agent and the Banks shall have
received a copy of the Borrower's trading position policy and supply inventory
position policy as in effect on March 31, 1999.
(c) 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 Administrative Agent and its counsel,
and the Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as they may
reasonably request.
(d) 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. 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. 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.
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
Name: Kevin T. Kelly
Title: Chief Financial Officer
FERRELLGAS, INC.
By: /s/ Kevin T. Kelly
Name: Kevin T. Kelly
Title: Chief Financial Officer
ADMINISTRATIVE AGENT
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Administrative Agent
By: /s/ Daryl G. Patterson
Name: Daryl G. Patterson
Title: Vice President
BANKS
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
By: /s/ Daryl G. Patterson
Name: Daryl G. Patterson
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Daryl G. Patterson
Name: Daryl G. Patterson
Title: Vice President
WELLS FARGO BANK, N.A.
By: /s/ Charles D. Kirkham
Name: Charles D. Kirkham
Title: Vice President
THE BANK OF NEW YORK
By: /s/ David Shedd
Name: David Shedd
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ M. D. Smith
Name: M. D. Smith
Title: Agent
PARIBAS
By: /s/ Rosine K. Matthews
Name: Rosine K. Matthews
Title: Vice President
By: /s/ Larry Robinson
Name: Larry Robinson
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Dustin Gaspari
Name: Dustin Gaspari
Title: Assistant Vice President