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Exhibit 10.1
FIRST AMENDMENT TO FIFTH
AMENDED
AND RESTATED CREDIT
AGREEMENT
THIS FIRST
AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this
“ Amendment ”) dated as of April 11, 2008,
is made by and among FERRELLGAS, L.P., a Delaware limited
partnership (the “ Borrower ”), FERRELLGAS,
INC., a Delaware corporation and sole general partner of the
Borrower (the “ General Partner ”), BANK OF
AMERICA, N.A., as Administrative Agent (in such capacity, the
“ Administrative Agent ”), Swing Line Lender and
L/C Issuer, and the Lenders party hereto.
W I T N E S S E T H:
WHEREAS,
the Borrower, the General Partner, the Administrative Agent and the
Lenders entered into that certain Fifth Amended and Restated Credit
Agreement dated as of April 22, 2005 (as amended,
supplemented, or restated to the date hereof, the “
Original Agreement ”), for the purpose and
consideration therein expressed, whereby the Lenders became
obligated to make loans and other extensions of credit to the
Borrower as therein provided; and
WHEREAS,
the Borrower, the General Partner, the Administrative Agent and the
Lenders desire to amend the Original Agreement as set forth
herein;
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original
Agreement, in consideration of the loans and other extensions of
credit that may hereafter be made by the Lenders to the Borrower,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
ARTICLE I.
Definitions and
References
Section 1.1 Terms Defined in the Original Agreement .
Unless the context otherwise requires or unless otherwise expressly
defined herein, the terms defined in the Original Agreement shall
have the same meanings whenever used in this Amendment.
Section 1.2 Other Defined Terms . Unless the context
otherwise requires, the following terms when used in this Amendment
shall have the meanings assigned to them in this
Section 1.2.
"
Amendment ” means this First Amendment to Fifth
Amended and Restated Credit Agreement.
" Credit
Agreement ” means the Original Agreement as amended
hereby.
" New
Lender ” means each Lender listed on Schedule 2.01
attached to this Amendment as Annex A who was not party to the
Original Agreement.
ARTICLE II.
Amendments to Original
Agreement
Section 2.1 Section 2.01(b) . Subsection
(b) of Section 2.01 of the Original Agreement is hereby
deleted in its entirety.
Section 2.2 Schedule 2.01 . Schedule 2.01 to
the Original Credit Agreement is hereby amended and replaced in its
entirety by Schedule 2.01 attached hereto as Annex I.
ARTICLE III.
New Lenders
Section 3.1 Agreements of New Lenders . Each New Lender
hereby agrees and confirms that, as of the date hereof, it:
(a) intends to be a Lender party to the Credit Agreement, with
a Commitment in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such New
Lender’s name on Schedule 2.01, and undertakes to
perform all the obligations expressed therein as a Lender;
(b) has received a copy of the Original Agreement and this
Amendment, together with copies of the most recent financial
statements delivered pursuant to Section 6.01 of the Credit
Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into this Amendment and become a Lender under the Credit
Agreement;
(c) will, independently and without reliance upon the
Administrative Agent, the Swing Line Lender, any L/C Issuer, or any
Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement
or any of the other Loan Documents;
(d) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers
under the Credit Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto;
(e) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit
Agreement and the Loan Documents are required to be performed by it
as a Lender;
(f) specifies as its Lending Office and address for notices,
the offices set forth beneath its name on the signature pages
hereof;
(g) if applicable, has delivered to the Administrative Agent
the forms prescribed by the Internal Revenue Service of the United
States certifying as to its status for purposes of determining
exemption from United States withholding taxes with respect to all
payments to be made to it under the Credit Agreement and the other
Loan Documents or such other documents as are necessary to indicate
that all such payments are subject to such rates at a rate reduced
by an applicable tax treaty, and
(h) represents that it is an Eligible Assignee.
Section 3.2 Accession to Credit Agreement . Upon
execution of this Amendment by each New Lender and the
effectiveness of this Amendment pursuant to Article V hereof,
such New Lender shall be a Lender party to the Credit Agreement for
all purposes, and, to the extent of its Commitment, shall have the
rights and obligations of a Lender thereunder.
Section 3.3 Allocation . Lenders hereby authorize
Administrative Agent and Borrower to request Loans from the
Lenders, and to make prepayments of Loans in order to ensure that,
upon the effectiveness of this Amendment, the Loans of the Lenders
shall be outstanding on a ratable basis in accordance with their
respective Pro Rata Shares and that the Commitments shall be as set
forth on Schedule 2.01 of the Credit Agreement, as amended
hereby, and no such borrowing, prepayment or reduction shall
violate any provisions of the Credit Agreement. Lenders hereby
confirm that, from and after the effective date of this Amendment,
all participants of Lenders in respect of Letters of Credit
outstanding under the C
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