Exhibit 10.3
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of July 21, 1995, is entered into by and among FERRELLGAS, L.P., a
Delaware limited partnership (the "Borrower"), STRATTON INSURANCE COMPANY, Inc.,
a Vermont corporation and Wholly-Owned Subsidiary of the Borrower ("Stratton"),
FERRELLGAS, INC., a Delaware corporation and sole general partner of the
Borrower (the "General Partner"), each of the lenders that is a signatory to
this Amendment (collectively, the "Banks"; and each, a "Bank"), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as agent for the Banks (in such
capacity, the "Agent") and THE FIRST NATIONAL BANK OF BOSTON and NATIONSBANK OF
TEXAS, N.A. as co-agents (the "Co-Agents"), and amends that certain Credit
Agreement dated as of July 5, 1994 between the Borrower, Stratton, the General
Partner, the several financial institutions from time to time parties to the
Credit Agreement (as defined below), the Agent and the Co-Agents (as
supplemented by the Consent and Agreement dated as of October 28, 1994 entered
into by and among the parties hereto, the "Existing Credit Agreement", and as
amended hereby, 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 Existing Credit Agreement, and the rules of
interpretation set forth in Section 1.02 of the Existing Credit Agreement shall
be applicable to this Amendment.
RECITALS
A. The Borrower has determined that it is in the best interests of the
Borrower to increase the amount of funds available to it for working capital,
acquisition and other general purposes.
B. In that connection, the Borrower is proposing that the Banks (a) make
available additional revolving indebtedness in the form of a new facility
exclusively for working capital purposes in an aggregate amount equal to
$20,000,000 which will have a 30 day clean-up period, (b) reallocate $25,000,000
from the Facility A Commitment to the Facility B Commitment and (c) make certain
other amendments to the Existing Credit Agreement, and the Banks are willing to
agree to the foregoing all 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 and amend the Existing Credit Agreement 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, the Existing Credit Agreement shall be amended as
follows: (a) The following definitions as set forth in Section 1.01 of
the Existing Credit Agreement are amended to read in their entirety as
follows:
i. "`Applicable Margin' means, for each Type of Loan, effective
as of the first day of each fiscal quarter, the percentage per annum
(expressed in basis points) set forth below opposite the Level of the
Leverage Ratio applicable to such fiscal quarter as set forth herein.
Leverage Ratio Base Rate Loans Eurodollar Loans
Level 1 0 b.p. 52.5 b.p.
Level 2 0 b.p. 70 b.p.
Level 3 0 b.p. 87.5 b.p.
Level 4 0 b.p. 105 b.p.
Level 5 25 b.p. 125 b.p."
ii. "`Class' means, with respect to any Loan, whether such Loan
is a Facility A Revolving Loan, Swingline Loan, Facility B Term Loan,
Facility B Revolving Loan, Facility B Takeout Loan or Facility C
Revolving Loan."
iii. "`Commitment Fee Rate' means, as of any date and based upon
the Level of the Leverage Ratio on such date, the percent per annum
(expressed in basis points) set forth below opposite such Level:
Leverage Ratio Commitment Fee Rate
Level 1 20 b.p.
Level 2 25 b.p.
Level 3 27.5 b.p.
Level 4 32.5 b.p.
Level 5 37.5 b.p."
iv. "`Commitments' means, as to each Bank, collectively, its
Facility A Commitment, its Facility B Commitment and its Facility C
Commitment."
v. "`Compliance Certificate' means a certificate signed by a
Responsible Officer of the Borrower substantially in the form of
Exhibit C, demonstrating compliance with the covenants contained
herein, including Sections 7.12, 7.13, 7.16 and 8.12 and the 30 day
clean-up period contained in subsections 2.01(a)(ii) and 2.01(c)(ii)."
vi. "`Facility A Commitment', as to each Bank, means the amount
set forth opposite such Bank's name on Schedule 2.01 hereof under the
caption "Facility A Commitment", as the same may be reduced under
Section 2.05 or 2.07 or as a result of one or more assignments under
Section 11.08; provided, that the maximum aggregate Facility A
Commitment of all Banks shall not exceed $75,000,000 at any time."
vii. "`Facility B Commitment', as to each Bank, means the amount
set forth opposite such Bank's name on Schedule 2.01 hereof under the
caption "Facility B Commitment", as such amount may be reduced under
Section 2.05 or 2.07 or as a result of one or more assignments under
Section 11.08; provided, that the maximum aggregate Facility B
Commitment of all Banks shall not exceed $110,000,000 at any time."
viii. "`Interest Period' means, as to any Eurodollar Rate Loan,
the period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as a Eurodollar Rate Loan, and ending on the date one, two,
three or six months thereafter as selected by the Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
(i) if any Interest Period would otherwise end on
a day that is not a Business Day, that Interest Period shall
be extended to the following Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest
Period;
(iii) no Interest Period for any Facility A
Revolving Loan or Facility C Revolving Loan shall extend
beyond June 30, 1998;
(iv) no Interest Period for any Facility B Term
Loan or Facility B Revolving Loan shall extend beyond June 30,
1997; and
(v) no Interest Period applicable to a Facility B
Takeout Loan or portion thereof shall extend beyond any date
upon which is due any scheduled principal payment in respect
thereof unless the aggregate principal amount of Facility B
Takeout Loans represented by Base Rate Loans, or by Eurodollar
Rate Loans having Interest Periods that will expire on or
before such date, equals or exceeds the amount of such
principal payment."
ix. "`Level' means, at any time, Level 1, Level 2, Level 3, Level
4 or Level 5, based on the amount of the Leverage Ratio at such time.
For purposes of this Agreement, the following "Levels" of Leverage
Ratio (LR) shall apply:
Level Leverage Ratio
Level 1 LR (less than) 1.75
Level 2 1.75 (less than) LR (less than) 2.75
Level 3 2.75 (less than) LR (less than) 3.25
Level 4 3.25 (less than) LR (less than) 3.75
Level 5 LR (less than) 3.75
The level of the Leverage Ratio for the period from the Closing Date to
the end of the fiscal quarter of the Borrower during which the Closing
Date occurs shall be equal to Level 3. Any change in the Level of the
Leverage Ratio shall be determined by the Agent based upon the
financial information required to be contained in the Compliance
Certificates delivered by the Borrower to the Agent with respect to
each fiscal quarter of the Borrower and shall become effective as of
the first day of the fiscal quarter following the fiscal quarter for
which such Compliance Certificate was delivered. Upon any failure of
the Borrower to deliver a Compliance Certificate for any fiscal quarter
prior to 10 days after the date on which such Compliance Certificate is
required to be delivered to the Agent, and without limiting the other
rights and remedies of the Agent and the Banks hereunder, the Leverage
Ratio shall be deemed to be Level 5 as of the first day of the fiscal
quarter beginning after the fiscal quarter for which such Compliance
Certificate was due."
x. "`Loan' means an extension of credit by a Bank to the Borrower
under Article II or Article III in the form of a Facility A Revolving
Loan, L/C Advance, Facility B Term Loan, Facility B Revolving Loan,
Facility B Takeout Loan, Facility C Revolving Loan or (in the case of
BofA) Swingline Loan."
xi. "`Note' means a promissory note executed by the Borrower in
favor of a Bank pursuant to subsection 2.02(b), in substantially the
form of Exhibit F-1, F-2, F-3, F-4 or F-5."
xii. "`Revolving Commitment' means, as to each Bank,
collectively, its Facility A Commitment, its Facility B Revolving Loan
Commitment and its Facility C Commitment."
(
b) The second sentence of the definition of "Fixed Charge
Coverage Ratio" as set forth in Section 1.01 of the Existing Credit
Agreement is amended to read in its entirety as follows:
"In the event that the referent Person or any of its Subsidiaries incurs,
assumes, guarantees, redeems or repays any Indebtedness (other than
revolving credit borrowings including, with respect to the Borrower,
Swingline Loans, Facility A Revolving Loans, Facility B Revolving Loans
and Facility C Revolving Loans) subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated
but prior to the date of the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the
Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, guarantee, redemption or repayment of
Indebtedness, as if the same had occurred at the beginning of the
applicable reference period."
(c) Section 1.01 of the Existing Credit Agreement is amended by
substituting the following definitions for the definition of "Revolving
Termination Date" in that section:
i. "`Facility A Revolving Termination Date' means the earlier to occur
of:
(a) June 30, 1998; and
(b) the date on which the Facility A Commitment terminates in
accordance with the provisions of this Agreement."
ii. "`Facility B Revolving Termination Date' means the earlier to occur
of:
(a) June 30, 1997; and
(b) the date on which the Facility B Revolving Loan Commitment
terminates in accordance with the provisions of this Agreement."
iii. "`Facility C Revolving Termination Date' means the earlier to occur
of:
(a) June 30, 1998; and
(b) the date on which the Facility C Commitment terminates in
accordance with the provisions of this Agreement."
(d) Section 1.01 of the Existing Credit Agreement is amended by
substituting the following definitions for the definition of "Risk
Participation Percentage" in that section.
"`Commercial Letter of Credit Risk Participation Percentage'
means, as of any date and based upon the Level of the Leverage Ratio
on such date, the percent per annum (expressed in basis points) set
forth below opposite such Level:
Leverage Ratio Commercial Letter of Credit
Risk Participation Percentage
Level 1 20 b.p.
Level 2 25 b.p.
Level 3 27.5 b.p.
Level 4 30 b.p.
Level 5 35 b.p."
"`Standby Letter of Credit Risk Participation Percentage' means,
as of any date and based upon the Level of the Leverage Ratio on such
date, the percent per annum (expressed in basis points) set forth
below opposite such Level:
Leverage Ratio Standby Letter of Credit Risk
Participation Percentage
Level 1 40 b.p.
Level 2 57.5 b.p.
Level 3 75 b.p.
Level 4 92.5 b.p.
Level 5 112.5 b.p."
(e) Section 1.01 of the Existing Credit Agreement is amended to
add the following definitions to read in their entirety as follows:
i. "`Facility C Commitment', as to each Bank, means the amount
set forth opposite such Bank's name on Schedule 2.01 hereof under the
caption "Facility C Commitment", as the same may be reduced under
Section 2.05 or 2.07 or as a result of one or more assignments under
Section 11.08; provided, that the maximum aggregate Facility C
Commitment of all Banks shall not exceed $20,000,000 at any time."
ii. "`Facility C Revolving Loan' has the meaning specified in
subsection 2.01(c), and may be a Base Rate Loan or a Eurodollar Rate
Loan."
(f) Subsection 2.01(a)(i) of the Existing Credit Agreement is
amended by substituting the term "Facility A Revolving Termination
Date" for the term "Revolving Termination Date" in that subsection.
(g) Subsection 2.01(b)(ii) of the Existing Credit Agreement is
amended by substituting the term "Facility B Revolving Termination
Date" for the term "Revolving Termination Date" in that subsection.
(h) Subsection 2.01(b)(iii) of the Existing Credit Agreement is
amended by substituting the term "Facility B Revolving Termination
Date" for the term "Revolving Termination Date" in that subsection.
(i) Section 2.01 of the Credit Agreement is amended to add a new
subsection (c) to read in its entirety as follows:
"(c) Facility C Revolving Loans.
(i) Each Bank severally agrees, on the terms and subject to the
conditions set forth herein, to make loans to the Borrower (each such
loan, a "Facility C Revolving Loan") from time to time on any Business
Day during the period from the Amendment Effective Date to the Facility
C Revolving Termination Date, in an aggregate principal amount not to
exceed at any time outstanding such Bank's Facility C Commitment as in
effect from time to time; provided, however, that, after giving effect
to any Borrowing of Facility C Revolving Loans, the sum of the
Effective Amount of all outstanding Facility C Revolving Loans shall
not at any time exceed the combined Facility C Commitments, and the
Effective Amount of the Facility C Revolving Loans of any Bank shall
not at any time exceed such Bank's Facility C Commitment.
(ii) Within the limits of each Bank's Facility C
Commitment and on the other terms and subject to the other conditions
hereof, the Borrower may borrow under this subsection 2.01(c), prepay
under Section 2.06 and reborrow under this subsection 2.01(c);
provided, that, concurrently with the requirement contained in the
proviso in subsection 2.01(a)(ii) above, the Borrower shall cause the
aggregate outstanding principal amount of Facility C Revolving Loans
not to exceed zero Dollars for at least one period of 30 consecutive
days during each fiscal year of Borrower, commencing with its fiscal
year beginning August 1, 1995."
(j) Subsection 2.05(c) of the Existing Credit Agreement is
amended to read in its entirety as follows:
"(c) The Borrower may, not later than 11:00 a.m. San Francisco
time at least three Business Days prior to its effective date by
notice to the Agent, terminate or permanently reduce the Facility C
Commitments by an aggregate minimum amount of $5,000,000 or any
multiple of $5,000,000 in excess thereof; unless, after giving effect
thereto and to any prepayments of Loans made on the effective date
thereof, the Effective Amount of all Facility C Revolving Loans would
exceed the amount of the combined Facility C Commitments then in
effect."
(k) Section 2.05 of the Existing Credit Agreement is amended to
add a subsection (d) to read in its entirety as follows:
"(d) Once reduced in accordance with this Section, the
Commitments may not be increased. Any reduction of the Facility A
Commitments, the Facility B Commitments or the Facility C
Commitments shall be applied to each Bank according to its Pro
Rata Share."
(l) Subsections 2.06(b) and 2.06(c) of the Existing Credit
Agreement are amended to read in their entirety as follows:
"(b) Any such notice of prepayment shall specify the date
and amount of such prepayment and the Type(s) and, on or prior to
the later of (i) the Facility A Termination Date and (ii) the
Facility C Termination Date, the Class(es), of Loans to be
prepaid. Prepayments of Base Rate Loans of any Class may be made
hereunder on any Business Day. Prepayments of Eurodollar Rate
Loans of any Class may be made hereunder only on the last day of
any applicable Interest Period; provided, that prepayments of
Eurodollar Rate Loans may be made on a day other than the last
day of the applicable Interest Period only with payment by the
Borrower of the aggregate amount of any associated funding losses
of any affected Banks pursuant to Section 4.04. The Agent will
promptly notify each Bank of its receipt of any such notice, and
of such Bank's Pro Rata Share of such prepayment.
(c) If any such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date
specified therein, together, in the case of a Eurodollar Rate
Loan, with accrued interest to each such date on the amount
prepaid and any amounts required pursuant to Section 4.04.
Optional prepayments applicable to the Facility B Takeout Loan
shall be applied in inverse order of maturity."
(m) Subsection 2.07(b) of the Existing Credit Agreement is
amended by substituting the term "Facility B Revolving
Termination Date" for the term "Revolving Termination Date" each
place such term appears in that subsection.
(n) Subsections 2.07(c) and 2.07(d) of the Existing Credit
Agreement are amended to read in their entirety as follows:
"(c) If on any date, (x) the sum of (i) aggregate Net
Proceeds from MLP New Unit Sales from the Closing Date through
such date plus (ii) aggregate Net Proceeds of Asset Sales during
the period from the Closing Date through the date that is 270
days prior to such date, exceeds (y) the aggregate Cash Costs of
Permitted Acquisitions during the period from the Closing Date
through such date plus aggregate Growth-Related Capital
Expenditures of the Borrower and its Subsidiaries during such
period (any such excess being referred to herein as a "Downsize
Amount"), then (A) if such date is on or prior to the Facility B
Revolving Termination Date and after giving effect to any
mandatory Cash Collateralization or prepayment of outstanding
Facility B Revolving Loans under subsection 2.07(b) above, the
Borrower shall immediately, and without notice or demand, prepay
the Obligations in an aggregate amount equal to the Downsize
Amount as follows: first, Facility B Term Loans, second,
Swingline Loans, third, Facility A Revolving Loans and Facility C
Revolving Loans on a pro rata basis, and fourth, L/C Obligations;
and (B) if such date is after the Facility B Revolving
Termination Date, the Borrower shall immediately, and without
notice or demand, prepay payments due under the Facility B
Takeout Loan in an aggregate amount equal to the Downsize Amount,
in the inverse order of maturity.
(d) In the event that, prior to the later of (i) the
Facility A Revolving Termination Date and (ii) the Facility C
Revolving Termination Date, any portion of the Downsize Amount
remains after the Facility B Maximum Amount has been reduced to
zero, the Facility A Commitment and the Facility C Commitment, if
any, shall be automatically reduced on a pro rata basis by an
aggregate amount equal to such remaining portion of the Downsize
Amount."
(o) Subsection 2.07(f) of the Existing Credit Agreement is
amended to read in its entirety as follows:
"(f) If and to the extent that the Facility A Commitment, the Facility B
Revolving Commitment and the Facility C Commitment are not equal to
zero on the Facility A Revolving Termination Date, the Facility B
Revolving Termination Date and the Facility C Revolving Termination
Date, respectively, each such amount shall be automatically reduced to
zero on the such respective date."
(p) Subsection 2.08(a) of the Existing Credit Agreement is
amended by substituting the term "Facility A Revolving
Termination Date" for the term "Revolving Termination Date" in
each place such term appears in that subsection.
(q) Subsection 2.08(b) of the Existing Credit Agreement is
amended by substituting the term "Facility B Revolving
Termination Date" for the term "Revolving Termination Date" in
that subsection.
(r) Section 2.08 of the Existing Credit Agreement is amended
to add a subsection (d) to read in its entirety as follows:
"(d) Facility C Revolving Loans. The Borrower shall repay to
the Banks in full on the Facility C Revolving Termination Date
the aggregate principal amount of Facility C Revolving Loans
outstanding on such date together with all accrued and unpaid
interest thereon."
(s) Subsection 2.10(b) of the Existing Credit Agreement is
amended to read in its entirety as follows:
"(b) Commitment Fees. The Borrower shall pay to the Agent
for the account of each Bank a commitment fee with respect to
such Bank's Facility A Commitment equal to the Commitment Fee
Rate per annum times the daily average amount by which such
Bank's Facility A Commitment exceeded the sum of the aggregate
Effective Amount of its Facility A Revolving Loans plus its Pro
Rata Share of the Effective Amount of L/C Obligations (other than
with respect to Commercial Letters of Credit). The Borrower shall
pay to the Agent for the account of each Bank a commitment fee
with respect to such Bank's Facility B Commitment, equal to the
Commitment Fee rate per annum times the daily average amount by
which such Bank's Facility B Revolving Commitment exceeded the
aggregate Effective Amount of its Facility B Revolving Loans. The
Borrower shall pay to the Agent for the account of each Bank a
commitment fee with respect to such Bank's Facility C Commitment,
equal to the Commitment Fee rate per annum times the daily
average amount by which such Bank's Facility C Commitment
exceeded the aggregate Effective Amount of its Facility C
Revolving Loans. Such commitment fees shall accrue from the date
of this Agreement (or, with respect to Facility C, August 1,
1995) to (i) the Facility A Revolving Termination Date, with
respect to the Facility A Commitment, (ii) the Facility B
Revolving Termination Date, with respect to the Facility B
Revolving Loan Commitment and (iii) the Facility C Revolving
Termination Date with respect to the Facility C Commitment and
shall be due and payable quarterly in arrears on the first
Business Day of each fiscal quarter following the quarter for
which payment is to be made, commencing on August 1, 1994 (or,
with respect to Facility C, commencing on the Amendment Effective
Date) through the Facility A Revolving Termination Date, the
Facility B Revolving Termination Date, and the Facility C
Revolving Termination Date, as the case may be, with the final
payment to be made on the date of such termination, as
applicable; provided that, in connection with the full
termination of Commitments under Section 2.05 or Section 2.07,
the accrued commitment fees calculated for the period ending on
such date shall also be paid on the date of such termination. The
commitment fees provided in this subsection shall accrue at all
times after the above-mentioned commencement date, including at
any time during which one or more conditions in Article V are not
met."
(t) Article III of the Existing Credit Agreement is amended
by substituting the term "Facility A Revolving Termination Date"
for the term "Revolving Termination Date" in each place such term
appears in that Article.
(u) Subsections 3.08(a) and 3.08(b) of the Existing Credit
Agreement are amended to read in their entirety as follows:
"3.08 Letter of Credit Fees. (a) The Borrower agrees and, in the case of
Standby Letters of Credit issued for the account of Stratton, the
Borrower and Stratton jointly and severally agree, to pay to the Agent
for the account of each of the Banks based on their respective Pro Rata
Shares a letter of credit fee (i) with respect to the Standby Letters
of Credit, equal to the Standby Letter of Credit Risk Participation
Percentage of the average daily maximum amount available to be drawn of
the outstanding Standby Letters of Credit and (ii) with respect to the
Commercial Letters of Credit, equal to the Commercial Letter of Credit
Risk Participation Percentage of the average daily maximum amount
available to be drawn of the outstanding Commercial Letters of Credit,
in each case computed on a quarterly basis in arrears on the last
Business Day of each fiscal quarter based upon Standby Letters of
Credit or Commercial Letters of Credit, as the case may be, outstanding
for that quarter as calculated by the Agent. Such letter of credit fees
shall be due and payable quarterly in arrears on the first Business Day
following each fiscal quarter during which Standby Letters of Credit or
Commercial Letters of Credit, as the case may be, are outstanding,
commencing on the first such quarterly date to occur after the Closing
Date, through the Facility A Revolving Termination Date, with the final
payment to be made on the Facility A Revolving Termination Date.
(b) The Borrower agrees and, in the case of Standby
Letters of Credit issued for the account of Stratton, the Borrower and
Stratton jointly and severally agree, to pay to the applicable Issuing
Bank for its sole account a letter of credit fronting fee (i) for each
Standby Letter of Credit Issued by such Issuing Bank, equal to 0.15%
per annum of the face amount (or increased face amount, as the case may
be) of such Standby Letter of Credit and (ii) for each Commercial
Letter of Credit Issued by such Issuing Bank, equal to 0.10% per annum
of the face amount (or increased face amount, as the case may be) of
such Commercial Letter of Credit. Such Letter of Credit fronting fee
shall be due and payable quarterly in arrears on the first Business Day
following each fiscal quarter during which such Letter of Credit is
outstanding, commencing on the first such quarterly date to occur after
the Closing Date."
(v) Subsection 7.01(g) of the Existing Credit Agreement is
amended to read in its entirety as follows:
"(g) as soon as available, but not later than 45 days after
the end of each of the first three fiscal quarters of each fiscal
year and, with respect to the final fiscal quarter, concurrently
with the financial statements referred to in subsection 7.01(a),
a trading position report as of the last day of each fiscal
quarter, certified by a Responsible Officer."
(w) Section 7.11 of the Existing Credit Agreement is amended
to read in its entirety as follows:
"7.11 Use of Proceeds. The Borrower (and Stratton, with
respect to Letters of Credit) shall use the proceeds of (a) the
Facility A Revolving Loans and the Facility B Revolving Loans for
working capital and other general partnership purposes and (b)
the Facility C Loans for working capital purposes only, in each
case not in contravention of any Requirement of Law or of any
Loan Document; the Borrower shall use the proceeds of the
Facility B Term Loan for the purpose of repaying up to
$25,000,000 in outstanding amount of Existing Debt on the Closing
Date; and the Borrower shall use the proceeds of all Facility B
Takeout Loans to repay up to all of the aggregate outstanding
principal amount of the Facility B Loans on the Facility B
Revolving Termination Date."
(x) Subsection 9.01(c) of the Existing Credit Agreement is
amended to read in its entirety as follow:
"(c) Specific Defaults. The Borrower fails to perform or
observe any term, covenant or agreement contained in any of
Sections 2.01(a)(ii), 2.01(c)(ii), 7.01, 7.02, 7.03, 7.04, 7.06,
7.09, 7.12, 7.13, 7.16 or in any Section in Article VIII; or"
(y) Subsection 11.08(a) of the Existing Credit Agreement is
amended to read in its entirety as follows:
"(a) Any Bank may, with the written consent of the Borrower (at all times
other than during the existence of an Event of Default), the Agent and
the applicable Issuing Bank(s), which consents shall not be
unreasonably withheld, at any time assign and delegate to one or more
Eligible Assignees (provided that no written consent of the Borrower,
the Agent or an Issuing Bank shall be required in connection with any
assignment and delegation by a Bank to an Eligible Assignee that is an
Affiliate of such Bank) (each an "Assignee") all, or any ratable part
of all, of the Loans, the Commitments, the L/C Obligations and the
other rights and obligations of such Bank hereunder in an aggregate
minimum amount of $10,000,000, pro-rated among the Facility A
Commitment, the Facility B Commitment and the Facility C Commitment;
provided that such Bank shall retain an aggregate amount of not less
than $10,000,000 in respect thereof, unless such Bank assigns and
delegates all of its rights and obligations hereunder to one or more
Eligible Assignees on the time and subject to the conditions set forth
herein; and provided, further, however, that the Borrower and the Agent
may continue to deal solely and directly with such Bank in connection
with the interest so assigned to an Assignee until (i) written notice
of such assignment, together with payment instructions, addresses and
related information with respect to the Assignee, shall have been given
to the Borrower and the Agent by such Bank and the Assignee; (ii) such
Bank and its Assignee shall have delivered to the Borrower and the
Agent an Assignment and Acceptance in the form of Exhibit E
("Assignment and Acceptance"), together with any Note or Notes subject
to such assignment; and (iii) the assignor Bank or Assignee has paid to
the Agent a processing fee in the amount of $3,500."
(z) Schedule 2.01 of the Existing Credit Agreement is amended to read in its
entirety as set forth on Schedule 2.01 (Revised as of August 1, 1995) hereto.
(aa) Exhibit A to the Existing Credit Agreement is amended
to read in its entirety as set forth on Exhibit A (Revised as of
August 1, 1995) hereto.
(bb) Exhibit B to the Existing Credit Agreement is amended
to read in its entirety as set forth on Exhibit B (Revised as of
August 1, 1995) hereto.
(cc) Exhibit C to the Existing Credit Agreement is amended
to read in its entirety as set forth on Exhibit C (Revised as of
August 1, 1995) hereto.
(dd) Exhibits F-1, F-2, and F-3 to the Existing Credit
Agreement are amended to read in their entirety as set forth on
Exhibits F-1 (Revised as of August 1, 1995), F-2 (Revised as of
August 1, 1995), F-3 (Revised as of August 1, 1995) and F-4
(Revised as of August 1, 1995), respectively, hereto.
(ee) The Existing Credit Agreement is amended to add an
Exhibit F-5 as set forth on Exhibit F-5 hereto.
SECTION 2. Conditions to Effectiveness. The amendments set
forth in Section 1 of this Amendment shall become effective on August 1, 1995
only upon the satisfaction of all of the following conditions precedent on or
prior to such date (such date being referred to as the "Amendment Effective
Date"):
(a) On or before the Amendment Effective Date, each of the
Borrower, Stratton and the General Partner shall deliver to the
Agent, on behalf of the Banks, the following described documents
(each of which shall be reasonably satisfactory in form and
substance to the Agent and its counsel):
(i) This Amendment duly executed by each party thereto;
(ii) Promissory notes, duly executed by the Borrower, in
substantially the form of Exhibits F-1 (Revised as of August 1,
1995), F-2 (Revised as of August 1, 1995), F-3 (Revised as of
August 1, 1995) and F-5 hereto (the "New Notes") in favor of each
Bank requesting delivery of such notes properly completed, and
the existing Notes held by such Bank shall, on the Amendment
Effective Date, be deemed to have been replaced and superseded by
the respective New Notes delivered to it on the Amendment
Effective Date (each such Bank agreeing to promptly return to the
Borrower its replaced and superseded Notes);
(iii) Copies of partnership authorizations for the Borrower
and resolutions of the board of directors of the General Partner
and Stratton authorizing the transactions contemplated by this
Amendment, certified as of the Amendment Effective Date by the
Secretary or an Assistant Secretary of the General Partner and
Stratton;
(iv) A certificate of the Secretary or Assistant Secretary
of the General Partner certifying the names and true signatures
of the officers of the General Partner authorized to execute,
deliver and perform, as applicable, on behalf of the Borrower and
the General Partner, this Amendment and the Note;
(v) A certificate of the Secretary or Assistant Secretary of
Stratton certifying the names and true signatures of the officers
of Stratton authorized to execute, deliver and perform, as
applicable, on behalf of Stratton, this Amendment;
(vi) the articles or certificate of incorporation and the
bylaws of the General Partner and Stratton and the Certificate of
Limited Partnership and the Limited Partnership Agreement of the
Borrower, in each case as in effect on the Amendment Effective
Date, certified by the Secretary or Assistant Secretary of the
General Partner or Stratton, as applicable, as of the Amendment
Effective Date;
(vii) a good standing and tax good standing certificate for
the General Partner, Stratton and the Borrower from the Secretary
of State (or similar, applicable Governmental Authority) of its
state of incorporation or organization, as applicable, and each
state where the General Partner, Stratton or the Borrower
conducts significant business as of a recent date, together with
bringdown certificates by facsimile, dated the Amendment
Effective Date for Delaware and the Business Day preceding the
Amendment Effective Date for other jurisdictions;
(viii) opinion of Bryan Cave, counsel to the Borrower, the
General Partner and Stratton, or of such other counsel as are
acceptable to the Agent and the Banks, addressed to the Agent and
the Banks, substantially in the form of Exhibit G;
(ix) a favorable opinion of Orrick, Herrington & Sutcliffe,
special counsel to the Agent;
(x) Such other documents, instruments, approvals or opinions
as the Agent, any Bank or special counsel to the Agent may
reasonably request.
(b) On or before the Amendment Effective Date, the Borrower
shall have paid to the Agent for the account of each Bank, pro
rata based on each Bank's Commitment, an amendment fee equal to
.075% of the aggregate Commitments of the Banks.
(c) On or before the Amendment Effective Date, the Borrower
shall have paid an agency fee to the Agent for the Agent's own
account, as required by the letter agreement between the Borrower
and the Agent dated July 21, 1995.
(d) On or before the Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with the
transactions contemplated by this Amendment and all documents
incidental to such transactions, 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, opinions,
certificates and evidence as they may reasonably request.
(e) All governmental actions or filings necessary for the
execution, delivery and performance of this Amendment shall have
been made, taken or obtained, and no order, statutory rule,
regulation, executive order, decree, judgment or injunction shall
have been enacted, entered, issued, promulgated or enforced by
any court or other governmental entity which prohibits or
restricts the transactions contemplated by this Amendment, nor
shall any action have been commenced or threatened seeking any
injunction or any restraining or other order to prohibit,
restrain, invalidate or set aside the transactions contemplated
by this Amendment.
(f) 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 give the consent and to amend the
Existing Credit Agreement in the manner provided in this Amendment, each of the
Borrower, Stratton and the General Partner represents and warrants to each Bank
as of the Amendment Effective Date as follows:
(a) Corporate or Partnership Existence and Power. The
General Partner, Stratton, the MLP, the Borrower and each of its
Subsidiaries:
(i) is a corporation or partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its formation;
(ii) has the power and authority and all governmental
licenses, authorizations, consents and approvals to own its
assets and carry on its business and to execute, deliver, and
perform its obligations under this Amendment and to carry out the
transactions contemplated by, and perform its obligations under
the Credit Agreement;
(iii) is duly qualified as a foreign corporation or
partnership and is licensed and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such
qualification or license or where the failure so to qualify would
not have a Material Adverse Effect; and
(iv) is in compliance with all material Requirements of Law.
(b) Corporate or Partnership Authorization; No Contravention. The execution,
delivery and performance by the Borrower, the General Partner and Stratton of
this Amendment and the performance of the Credit Agreement by each of them have
been duly authorized by all necessary partnership action on behalf of the
Borrower and all necessary corporate action on behalf of the General Partner and
any Subsidiary, and do not and will not:
(i) contravene the terms of any of the General Partner's, the MLP's, the
Borrower's or any Subsidiary's Organization Documents;
(ii) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual
*** Obligation to which the General Partner, the MLP, the Borrower or any
Subsidiary is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its property is subject
where such conflict, breach, contravention or Lien could reasonably be
expected to have a Material Adverse Effect; or
(iii) violate any material Requirement of Law
(c) Governmental Authorization. No approval, consent, exemption, authorization
or other action by, or notice to, or filing with, any Governmental Authority is
necessary or required in connection with (i) the execution, delivery or
performance by, or enforcement against, the General Partner, the Borrower or any
Subsidiary of this Amendment, or (ii) the continued operation of Borrower's
business as contemplated to be conducted after the date hereof by the Loan
Documents, except in each case such approvals, consents, exemptions,
authorizations or other actions, notices or filings (A) as have been obtained,
(B) as may be required under state securities or Blue Sky laws, (C) as are of a
routine or administrative nature and are either (x) not customarily obtained or
made prior to the consummation of transactions such as the transactions
described in clauses (i) or (ii) or (y) expected in the judgment of the Borrower
to be obtained in the ordinary course of business subsequent to the consummation
of the transactions described in clauses (i) or (ii), or (D) that, if not
obtained, could reasonably be expected to have a Material Adverse Effect.
(d) Binding Effect. The Credit Agreement and the Notes constitute the legal,
valid and binding obligations of each of the Borrower, Stratton and the General
Partner, as applicable, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
(e) Litigation. There are no actions, suits, proceedings, claims or disputes
pending, or to the best knowledge of the Borrower, threatened or contemplated,
at law, in equity, in arbitration or before any Governmental Authority, against
the General Partner, the MLP, the Borrower or any of its Subsidiaries or any of
their respective properties which:
(i) purport to affect or pertain to this Amendment or the Credit
Agreement or any of the transactions contemplated hereby or thereby; or
(ii) if determined adversely to the Borrower or its Subsidiaries, would
reasonably be expected to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or performance
of this Amendment or the Credit Agreement, or directing that the
transactions provided for herein or therein not be consummated as
herein or therein provided.
(f) No Default. No Default or Event of Default exists or would result from the
incurring, continuing or converting of any Obligations by the Borrower. As of
the Amendment Effective Date, neither the Borrower nor any Affiliate of the
Borrower is in default under or with respect to any Contractual Obligation in
any respect which, individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect, or that would, if such
default had occurred after the Amendment Effective Date, create an Event of
Default under subsection 9.01(e) of the Credit Agreement other than a default
under Section 4.09 of the Indenture relating to the Existing Senior Notes.
(g) Representations and Warranties in the Credit Agreement. Each of the
Borrower, Stratton and the General Partner confirms 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).
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 therewith, the
Existing Credit Agreement and the other Loan Documents, including
but not limited to, the Guaranty of Finance Corp., shall remain
in full force and effect and are hereby ratified and confirmed.
(ii) The execution, delivery and performance of this
Amendment 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. Each of the Borrower, Stratton and
the General Partner acknowledges 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.
(e) 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.
(f) 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.
(g) 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 caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
FERRELLGAS, L.P.
By: Ferrellgas, Inc.,
General Partner
By: _
Name: Danley K. Sheldon
Title: Senior Vice President and
Chief Financial
Officer/Treasurer
FERRELLGAS, INC.
By: _
Name: Danley K. Sheldon
Title: Senior Vice President and
Chief Financial Officer/Treasurer
STRATTON INSURANCE COMPANY, INC.
By: _
Name: Danley K. Sheldon
Title: Senior Vice President and
Chief Financial Officer/Treasurer
Address for Notices for each
of the Borrower, the General
Partner and Stratton:
One Liberty Plaza
Liberty, Missouri 64068
Attention: Danley K. Sheldon
Telephone: (816) 792-6828
Facsimile: (816) 792-6979
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: _
Name: Leandro Balidoy
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: _
Name: Vanessa Sheh Meyer
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON, as a Bank
By: _
Name:
Title:
NATIONSBANK, N.A.,
as a Bank
By: _
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Bank
By: _
Name:
Title:
WELLS FARGO BANK, N.A.,
as a Bank
By: _
Name:
Title:
CAISSE NATIONALE DE CREDIT
AGRICOLE, as a Bank
By: _
Name:
Title:
BANQUE PARIBAS, as a Bank
By: _
Name:
Title:
The undersigned hereby acknowledges and agrees to the
foregoing Amendment and confirms that its Continuing Guaranty dated July 5, 1994
shall remain in full force and effect notwithstanding the execution of such
Amendment and consummation of the transactions described or otherwise
contemplated therein.
FERRELLGAS FINANCE CORP.,
as Guarantor
By: ______________________________
Name:
Title:
Date:
NY1-98178.2
1033-63-ADG-09/25/95
NY1-98178.2
1033-63-ADG-09/25/95
SCHEDULE 2.01 (Revised as of August 1, 1995)
Facility B Commitment
-------------------------------------------------
Facility A Commitment Facility B Tranche I Facility B Tranche II Facility C
$75,000,000 Term Loan Expansive Capital Commitment
$15,000,000 $95,000,000 $20,000,000
Bank of America NT&SA $16,216,216.23 $3,243,243.24 $20,540,540.56 $4,324,324.33
The Bank of Nova Scotia $ 9,729,729.73 $1,945,945.95 $12,324,324.32 $2,594,594.59
Banque Paribas $ 5,878,378.37 $1,175,675.67 $ 7,445,945.94 $1,567,567.57
Caisse National de Credit $ 5,878,378.37 $1,175,675.67 $ 7,445,945.94 $1,567,567.57
Agricole
The First National Bank of $13,783,783.79 $2,756,756.76 $17,459,459.46 $3,675,675.68
Boston
NationsBank of Texas, N.A. $13,783,783.79 $2,756,756.76 $17,459,459.46 $3,675,675.68
Wells Fargo Bank, N.A. $ 9,729,729.73 $1,945,945.95 $12,324,324.32 $2,594,594.59
====================== ======================== ======================== ===============
$75,000,000.00 $15,000,000.00 $95,000,000.00 $20,000,000.00
Facility B Commitment
-------------------------------------------------
Total Pro Rata Share
Bank of America NT&SA 44,324,324.36 21.621621630%
The Bank of Nova Scotia 26,594,594.59 12.972972970%
Banque Paribas 16,067,567.55 7.837837830%
Caisse National de Credit 16,067,567.55 7.837837830%
Agricole
The First National Bank of 37,675,675.68 18.378378380%
Boston
NationsBank of Texas, N.A 37,675,675.68 18.378378380%
Wells Fargo Bank, N.A. 26,594,594.59 12.972972970%
==================== ====================
$205,000,000.00 100%
(Revised as of August 1, 1995)
NOTICE OF BORROWING
TO: Bank of America National Trust
and Savings Association, Agent
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Global Agency #5596
Re: Ferrellgas, L.P.
Pursuant to Section 2.03(a) of that certain Credit Agreement
dated as of July 5, 1994 (as from time to time amended, extended, restated,
modified or supplemented, the "Credit Agreement", among Ferrellgas, L.P., a
Delaware limited partnership (the "Borrower"), Stratton Insurance Company, Inc.,
a Vermont corporation and a Wholly-Owned Subsidiary of Borrower, Ferrellgas,
Inc., a Delaware corporation and the sole general partner of Borrower, the
financial institutions from time to time party thereto (the "Banks") and Bank of
America National Trust and Savings Association, as agent for the Banks (in such
capacity, the "Agent") and as Issuing Bank, this represents the Borrower's
request for a Borrowing from the Banks as follows:
1. The amount of the Borrowing shall be $__________.
2. The Borrowing Date shall be _______________.
3. The Loan shall be a [Base Rate] [Eurodollar Rate
Loan. [The initial Interest Period for such
Eurodollar Rate Loan shall be
[one] [two] [three] [six] months.]
4. The Loan shall be a [Facility A Revolving Loan]
[Swingline Loan] [Facility B Term Loan] [Facility B
Revolving Loan] [Facility B Takeout Loan] [Facility C
Revolving Loan].
The proceeds of such Loan are to be deposited in the Borrower's account at the
Agent.
The undersigned Responsible Officer hereby certifies that:
a. The representations and warranties in Article VI of
the Credit Agreement are true and correct on and as
of the date hereof (except to the extent such
representations and warranties expressly refer to an
earlier date, in which case they were true and
correct as of such earlier date); and
(b) No Default or Event of Default has occurred and is
continuing under the Credit Agreement or will result
from the proposed Borrowing.
Capitalized terms used but not defined herein shall have the meanings assigned
to them in the Credit Agreement.
DATED: ______________________
FERRELLGAS, L.P.
By: FERRELLGAS, INC., General
Partner
By: _
Name:
Title:
EXHIBIT B
(Revised as of August 1, 1995)
NOTICE OF CONVERSION/CONTINUATION
TO: Bank of America National Trust
and Savings Association
Global Agency #5596
1455 Market Street, 12th Floor
San Francisco, California 94103
Re: Ferrellgas, L.P.
Pursuant to Section 2.04(b) of that certain Credit Agreement
dated as of July 5, 1994 (as from time to time amended, extended, restated,
modified or supplemented, the "Credit Agreement"), among Ferrellgas, L.P., a
Delaware limited partnership (the "Borrower"), Stratton Insurance Company, Inc.,
a Vermont corporation and a Wholly-Owned Subsidiary of Borrower, Ferrellgas,
Inc., a Delaware corporation and the sole general partner of Borrower, the
financial institutions from time to time party thereto (the "Banks") and Bank of
America National Trust and Savings Association, as agent for the Banks (in such
capacity, the "Agent"), this represents Borrower's request to [Convert]
[Continue] certain [Base Rate Loans] [Eurodollar Rate Loans] as follows:
(A) The date of [Conversion] [Continuation] shall be ________,
199_, (which day is, in the case of Conversion of Base Rate Loans, a
Business Day, or, in the case of Conversion or Continuation of
Eurodollar Rate Loans, the last day of the applicable Interest
Period).
(B) An aggregate amount of $______________ of [Facility A
Revolving Loans] [Facility B Revolving Loans] [Facility B Term Loans]
[Facility C Revolving Loans] are to be [Converted] [Continued] as of
the date set forth in paragraph (A) above (which amount is $3,000,000,
or is an integral multiple of $1,000,000 in excess thereof).
(C) The Type of Loans resulting from the [Conversion]
[Continuation] shall be [Base Rate Loans] [Eurodollar Rate Loans].
[(D) If the resulting Loan is a Eurodollar Rate Loan, the
Interest Period of such Loan shall be [one][two][three][six] month(s).]
[Borrower represents and warrants, in the case of Conversion
or Continuation of Eurodollar Rate Loans, that no Default or Event of Default
exists on the date hereof and on the date set forth in paragraph (A) above.]
[Notwithstanding that a Default or Event of Default exists, Borrower requests
the consent of the Majority Banks to Convert/Continue the Eurodollar Rate Loan
as set forth above.] Borrower represents that, taking into consideration the
[Conversion] [Continuation] of Loans requested hereby, there are not more than
ten (10) Interest Periods in effect.
Capitalized terms used herein shall have the meanings assigned
to them in the Credit Agreement.
DATED: ______________ FERRELLGAS, L.P.
By: FERRELLGAS, INC., General
Partner
By: _
Name:
Title:
EXHIBIT C
(Revised as of August 1, 1995)
COMPLIANCE CERTIFICATE
This compliance certificate is provided pursuant to Section
7.02(b) of the Credit Agreement dated as of July 5, 1994 (as the same may be
amended from time to time, the "Credit Agreement"), by and among Ferrellgas,
L.P., a Delaware limited partnership ("Borrower"), Stratton Insurance Company,
Inc., a Vermont corporation and a wholly-owned subsidiary of Borrower,
Ferrellgas, Inc., a Delaware corporation and the sole general partner of
Borrower, Bank of America National Trust and Savings Association, as agent (in
such capacity, "Agent"), and the financial institutions ("Banks") from time to
time party to the Credit Agreement. Unless otherwise defined herein, capitalized
terms used herein are used with the defined meanings given in the Credit
Agreement.
I, _____________________________, the ____________________ of
Ferrellgas, Inc., a Delaware corporation and the sole general partner of
Borrower, do hereby certify that I am familiar with the Credit Agreement and
with the assets, business, financial condition and operations of Borrower and
its Subsidiaries and that during the fiscal quarter ending
______________________, 19__:
Borrower has performed all of its obligations under and is in
compliance with all covenants and agreements contained in the Credit Agreement
and under (i) any instrument or agreement required thereunder, (ii) any other
instrument or agreement to which Borrower is a party or under which Borrower is
obligated, and (iii) any judgment, decree or order of any court or governmental
authority binding on Borrower. Without limiting the generality of the foregoing:
1. As required by Section 7.12 of the Credit Agreement:
(i) Borrower has maintained a Leverage Ratio for the
applicable fiscal period of not greater than 4.0:1. The current Leverage
Ratio is:------------.
Funded Debt
($---------)
---------------------- = Leverage Ratio
Consolidated Cash Flow
($---------)
Attached as Exhibit A is a calculation of
Consolidated Cash Flow, including such calculation on a pro
forma basis for any Acquisitions consummated during the fiscal
period.
(ii) Borrower has a minimum Partners' Equity of not less than
$50,000,0000. The current Partners' Equity is $________________.
2. As required by Section 7.13 of the Credit Agreement,
Borrower and its Affiliates are in compliance, and have at all times during the
relevant fiscal period been in compliance, with Borrower's trading position
policy and supply inventory position policy guidelines as in effect on the
Closing Date[, provided that the stop loss limit in the trading position policy
has been increased from __________ at the beginning of the three quarters
preceding the fiscal quarter that is the subject of this certificate (the
"Initial Date") to __________ at the end of the fiscal quarter that is the
subject of this certificate (the "Final Date"), an aggregate increase of ____%]
[the stop loss limit in the supply inventory position has increased from
__________ on the Initial Date to __________ on the Final Date, an aggregate
increase of ____%] [the volume limit for [describe product] in the trading
position policy has been increased from __________ on the Initial Date to
__________ on the Final Date, an aggregate increase of ____%] [the volume limit
for [describe product] in the supply inventory position policy has been
increased from __________ on the Initial Date to __________ on the Final Date,
an aggregate increase of ____%].
3. As required by Section 7.16, Borrower hereby notifies Agent
that [no judgments, orders, decrees or arbitration awards have been entered
against Borrower or any Subsidiary involving in the aggregate a liability (to
the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage other than through a standard reservation of
rights letter) as to any single or related series of transactions, incidents or
conditions, of more than $10,000,000] [the following judgments, orders, decrees
and/or arbitration awards have been entered against Borrower or its
Subsidiaries: __________________________. The foregoing involve an aggregate
liability (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage other than through a standard
reservation of rights letter) of $______________________. Borrower has reserved
for such amount in excess of $10,000,000, on a quarterly basis, with each
quarterly reserve being at least equal to one-twelfth of such amount in excess
of $10,000,000. The amount of each quarterly reserve is $____________________].
4. As required by Section 8.12 of the Credit Agreement, during
the applicable fiscal period, Borrower and its Subsidiaries made [no Restricted
Payments] [Restricted Payments in an amount equal to $___________________ and,
at the time of and after giving effect to such Restricted Payments, each of the
following statements was true:
(a) no Default or Event of Default had occurred or was
continuing at the time of such Restricted Payment or occurred as a
consequence thereof and each of the representations and warranties of
the Borrower set forth in the Credit Agreement was true on and as of
the date of such Restricted Payment both before and after giving
effect thereto; and
(b) the Fixed Charge Coverage Ratio of the Borrower for the
Borrower's most recently ended four full fiscal quarters for which
internal financial statements were available immediately preceding the
date on which such Restricted Payment was made, calculated on a pro
forma basis as if such Restricted Payment had been made at the
beginning of such four-quarter period, was ____________, which ratio
is greater than 2.25 to 1.
Consolidated Cash Flow
($---------)
---------------------- = Fixed Charge Coverage Ratio
Fixed Charges
($---------)
and
(c) (i) the amount of such Restricted Payment, if made other
than in cash, was determined by the Board of Directors and evidenced
by a resolution in an officer's certificate signed by a Responsible
Officer and delivered to the Agent, and (ii) except as otherwise
provided in the Credit Agreement, such Restricted Payment, together
with the aggregate of all other Restricted Payments made by the
Borrower and its Subsidiaries in the fiscal quarter during which such
Restricted Payment was made, did not exceed the amount of Available
Cash of the Borrower for the immediately preceding fiscal quarter (or,
with respect to the first fiscal quarter during which Restricted
Payments are made, the amount of Available Cash of the Borrower for
the period commencing on the date of the Credit Agreement and ending
on the last day of the immediately preceding fiscal quarter).
Attached as Exhibit B is a calculation of Fixed Charges,
including such calculation on a pro forma basis for any Acquisitions
consummated during the fiscal period.
5. As required by subsection 2.01(a)(ii) of the Credit
Agreement, the aggregate outstanding principal amount of Facility A Revolving
Loans and Swingline Loans did not exceed $25,000,000 for the consecutive thirty
(30) day period from ____________ to _______________.
6. As required by subsection 2.01(c)(ii) of the Credit
Agreement, the aggregate outstanding principal amount of Facility C Revolving
Loans did not exceed zero Dollars for the same consecutive thirty (30) day
period specified in paragraph 5 above.
IN WITNESS WHEREOF, this Certificate has been executed on
behalf of Borrower as of the ____ day of ________________, 19__.
FERRELLGAS, L.P., a Delaware limited partnership
By: FERRELLGAS, INC., General Partner
By:___________________________
Name:
Title:
EXHIBIT F-1
(Revised as of August 1, 1995)
FACILITY A REVOLVING NOTE
$____________________ ___________, 199_
FOR VALUE RECEIVED, the undersigned FERRELLGAS, L.P., a
Delaware limited partnership, and STRATTON INSURANCE COMPANY, INC., a Vermont
corporation (together, "Borrower"), HEREBY PROMISE TO PAY to the order of
_______________________ ("Bank") the principal sum of ______________________
($_________) or, if less, the aggregate principal amount of Facility A Revolving
Loans outstanding on the Facility A Revolving Termination Date, made to Borrower
by Bank pursuant to Section 2.01(a) of that certain Credit Agreement dated as of
July 5, 1994 (as the same may be amended from time to time, the "Credit
Agreement"), among Borrower, Stratton Insurance Company, Inc., a Vermont
corporation and a Wholly-Owned Subsidiary of Borrower, Ferrellgas, Inc., a
Delaware corporation and the sole general partner of Borrower, the financial
institutions from time to time party thereto, and Bank of America National Trust
and Savings Association, as agent for said financial institutions (in such
capacity, "Agent") payable in full on the Facility A Revolving Termination Date
together with interest on the unpaid principal balance hereof from time to time
outstanding from the date hereof until paid in full at the rate or rates and in
the manner and at the times specified in the Credit Agreement.
Both the principal hereof and the interest hereon are payable
in lawful money of the United States of America at Bancontrol Account Number
12334-14282 located at Bank of America National Trust and Savings Association,
1850 Gateway Boulevard, Fourth Floor, Concord, California 94520 (or at such
other Lending Office as may be designated from time to time by Agent), for the
account of Bank, in immediately available funds.
The holder of this Facility A Revolving Note is authorized to
record the date and amount of Facility A Revolving Loans made by the Bank, the
amount of interest accruing from time to time and the date and amount of each
payment or prepayment of principal thereof on the schedule annexed to and
constituting a part hereof, or on a continuation thereof which shall be attached
hereto and a part hereof and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded.
Borrower agrees to pay all costs of collection and enforcement
of this Facility A Revolving Note, whether or not suit is filed, including,
without limitation, reasonable attorneys' fees, as more particularly provided in
Section 11.04 of the Credit Agreement.
This Facility A Revolving Note is one of the "Notes" referred
to in, and is entitled to the benefits of, the Credit Agreement which, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and for prepayment of amounts from time
to time outstanding under this Facility A Revolving Note upon certain terms and
conditions. Unless otherwise defined herein, capitalized terms used herein are
used with the defined meanings given in the Credit Agreement.
THIS FACILITY A REVOLVING NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
FERRELLGAS, L.P., a Delaware limited partnership
By: FERRELLGAS, INC., General Partner
By:___________________________
Name:
Title:
STRATTON INSURANCE COMPANY, INC.
By:___________________________
Name:
Title:
SCHEDULE TO FACILITY A REVOLVING NOTE
Date Amount of Facility A Amount of Unpaid Principal Notation Made By
Revolving Loans Principal Paid or Balance of Facility
Prepaid A Revolving Loans
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EXHIBIT F-2
(Revised as of August 1, 1995)
FACILITY B TERM NOTE
$______________________ ________________, 199_
FOR VALUE RECEIVED, the undersigned FERRELLGAS, L.P., a
Delaware limited partnership ("Borrower"), HEREBY PROMISES TO PAY to the order
of ______________________ ("Bank") the principal sum of
________________________________ ($____________), payable in full on the
Facility B Revolving Termination Date together with interest on the unpaid
principal balance hereof from time to time outstanding from the date hereof
until paid in full at the rate or rates and in the manner and at the times
specified in that certain Credit Agreement dated as of July 5, 1994 (as the same
may be amended from time to time, the "Credit Agreement"), among Borrower,
Stratton Insurance Company, Inc., a Vermont corporation and a Wholly-Owned
Subsidiary of Borrower, Ferrellgas, Inc., a Delaware corporation and the sole
general partner of Borrower, the financial institutions from time to time party
thereto, and Bank of America National Trust and Savings Association, as agent
for said financial institutions (in such capacity, "Agent").
Both the principal hereof and the interest hereon are payable
in lawful money of the United States of America at Bancontrol Account Number
12334-14282 located at Bank of America National Trust and Savings Association,
1850 Gateway Boulevard, Fourth Floor, Concord, California 94520 (or at such
other Lending Office as may be designated from time to time by Agent), for the
account of Bank, in immediately available funds.
The holder of this Facility B Term Note is authorized to
record the date and amount of each payment or prepayment of principal thereof on
the schedule annexed to and constituting a part hereof, or on a continuation
thereof which shall be attached hereto and a part hereof and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded.
Borrower agrees to pay all costs of collection and enforcement
of this Facility B Term Note, whether or not suit is filed, including, without
limitation, reasonable attorneys' fees, as more particularly provided in Section
11.04 of the Credit Agreement.
This Facility B Term Note is one of the "Notes" referred to
in, and is entitled to the benefits of, the Credit Agreement which, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and for prepayment of amounts from time to
time outstanding under this Facility B Term Note upon certain terms and
conditions. Unless otherwise defined herein, capitalized terms used herein are
used with the defined meanings given in the Credit Agreement.
THIS FACILITY B TERM NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
FERRELLGAS, L.P., a Delaware limited partnership
By: FERRELLGAS, INC., General Partner
By:___________________________
Name:
Title:
SCHEDULE TO FACILITY B TERM NOTE
Date Amount of Facility B Amount of Unpaid Principal Notation Made By
Term Loans Principal Paid or Balance of Facility
Prepaid B Term Loans
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EXHIBIT F-3
(Revised as of August 1, 1995)
FACILITY B REVOLVING NOTE
$______________________ ________________, 199_
FOR VALUE RECEIVED, the undersigned FERRELLGAS, L.P., a
Delaware limited partnership ("Borrower"), HEREBY PROMISES TO PAY to the order
of ______________________ ("Bank") the principal sum of
________________________________ ($____________) or, if less, the aggregate
principal amount of Facility B Revolving Loans outstanding on the Facility B
Revolving Termination Date, made to Borrower by Bank pursuant to Section 2.01(b)
of that certain Credit Agreement dated as of July 5, 1994 (as the same may be
amended from time to time, the "Credit Agreement"), among Borrower, Stratton
Insurance Company, Inc., a Vermont corporation and a Wholly-Owned Subsidiary of
Borrower, Ferrellgas, Inc., a Delaware corporation and the sole general partner
of Borrower, the financial institutions from time to time party thereto, and
Bank of America National Trust and Savings Association, as agent for said
financial institutions (in such capacity, "Agent") payable in full on the
Facility B Revolving Termination Date together with interest on the unpaid
principal balance hereof from time to time outstanding from the date hereof
until paid in full at the rate or rates and in the manner and at the times
specified in the Credit Agreement.
Both the principal hereof and the interest hereon are payable
in lawful money of the United States of America at Bancontrol Account Number
12334-14282 located at Bank of America National Trust and Savings Association,
1850 Gateway Boulevard, Fourth Floor, Concord, California 94520 (or at such
other Lending Office as may be designated from time to time by Agent), for the
account of Bank, in immediately available funds.
The holder of this Facility B Revolving Note is authorized to
record the date and amount of Facility B Revolving Loans made by the Bank, the
amount of interest accruing from time to time and the date and amount of each
payment or prepayment of principal thereof on the schedule annexed to and
constituting a part hereof, or on a continuation thereof which shall be attached
hereto and a part hereof and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded.
Borrower agrees to pay all costs of collection and enforcement
of this Facility B Revolving Note, whether or not suit is filed, including,
without limitation, reasonable attorneys' fees, as more particularly provided in
Section 11.04 of the Credit Agreement.
This Facility B Revolving Note is one of the "Notes" referred
to in, and is entitled to the benefits of, the Credit Agreement which, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and for prepayment of amounts from time
to time outstanding under this Facility B Revolving Note upon certain terms and
conditions. Unless otherwise defined herein, capitalized terms used herein are
used with the defined meanings given in the Credit Agreement.
THIS FACILITY B REVOLVING NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
FERRELLGAS, L.P., a Delaware limited partnership
By: FERRELLGAS, INC., General Partner
By:___________________________
Name:
Title:
SCHEDULE TO FACILITY B REVOLVING NOTE
Date Amount of Facility B Amount of Unpaid Principal Notation Made By
Revolving Loans Principal Paid or Balance of Facility
Prepaid B Revolving Loans
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EXHIBIT F-5
FACILITY C REVOLVING NOTE
$_________________ ___________, 199_
FOR VALUE RECEIVED, the undersigned FERRELLGAS, L.P., a
Delaware limited partnership ("Borrower"), HEREBY PROMISE TO PAY to the order of
_______________________ ("Bank") the principal sum of ______________________
($_________) or, if less, the aggregate principal amount of Facility C Revolving
Loans outstanding on the Facility C Revolving Termination Date, made to Borrower
by Bank pursuant to Section 2.01(c) of that certain Credit Agreement dated as of
July 5, 1994 (as the same may be amended from time to time, the "Credit
Agreement"), among Borrower, Stratton Insurance Company, Inc., a Vermont
corporation and a Wholly-Owned Subsidiary of Borrower, Ferrellgas, Inc., a
Delaware corporation and the sole general partner of Borrower, the financial
institutions from time to time party thereto, and Bank of America National Trust
and Savings Association, as agent for said financial institutions (in such
capacity, "Agent") payable in full on the Facility C Revolving Termination Date
together with interest on the unpaid principal balance hereof from time to time
outstanding from the date hereof until paid in full at the rate or rates and in
the manner and at the times specified in the Credit Agreement.
Both the principal hereof and the interest hereon are payable
in lawful money of the United States of America at Bancontrol Account Number
12334-14282 located at Bank of America National Trust and Savings Association,
1850 Gateway Boulevard, Fourth Floor, Concord, California 94520 (or at such
other Lending Office as may be designated from time to time by Agent), for the
account of Bank, in immediately available funds.
The holder of this Facility C Revolving Note is authorized to
record the date and amount of Facility C Revolving Loans made by the Bank, the
amount of interest accruing from time to time and the date and amount of each
payment or prepayment of principal thereof on the schedule annexed to and
constituting a part hereof, or on a continuation thereof which shall be attached
hereto and a part hereof and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded.
Borrower agrees to pay all costs of collection and enforcement
of this Facility C Revolving Note, whether or not suit is filed, including,
without limitation, reasonable attorneys' fees, as more particularly provided in
Section 11.04 of the Credit Agreement.
This Facility C Revolving Note is one of the "Notes" referred
to in, and is entitled to the benefits of, the Credit Agreement which, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and for prepayment of amounts from time
to time outstanding under this Facility C Revolving Note upon certain terms and
conditions. Unless otherwise defined herein, capitalized terms used herein are
used with the defined meanings given in the Credit Agreement.
THIS FACILITY C REVOLVING NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
FERRELLGAS, L.P., a Delaware limited partnership
By: FERRELLGAS, INC., General
Partner
By:___________________________
Name:
Title:
SCHEDULE TO FACILITY C REVOLVING NOTE
Date Amount of Facility C Amount of Unpaid Principal Notation Made By
Revolving Loans Principal Paid or Balance of Facility
Prepaid C Revolving Loans
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EXHIBIT G
FORM OF OPINION OF BRYAN CAVE
See Tab 12