SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Liberty,
State of Missouri, on the 10th day of November, 1995.
Ferrellgas Partners, L.P.
By: Ferrellgas, Inc. (General Partner)
By:
James E. Ferrell, President and
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature
Title Date
- -------------------------------- --------------------------------------- -----------------------
Director, President and November 10, 1995
- ------------------------------- Chairman of the Board
James E. Ferrell (Principal Executive Officer)
Senior Vice President and Chief November 10, 1995
- ------------------------------- Financial Officer (Principal
Danley K. Sheldon Financial and Accounting Officer)
* Director November 10, 1995
- -------------------------------
Daniel M. Lambert
* Director November 10, 1995
- -------------------------------
Andrew Levison
By:
- -------------------------------
Danley K. Sheldon
Attorney-in-Fact
Exhibit 5.1
Bryan Cave LLP
November 13, 1995
Board of Directors
Ferrellgas, Inc.
One Liberty Plaza
Liberty, Missouri 64068
Gentlemen:
We have acted as special counsel to Ferrellgas Partners, L.P., a Delaware
limited partnership (the "Partnership"), and Ferrellgas, Inc. a Delaware
corporation and the general partner of the Partnership, in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), of the
offering and sale of up to an aggregate of 2,400,000 common units representing
limited partner interests in the Partnership (the "Common Units").
As the basis for the opinion hereinafter expressed, we have examined such
statutes, regulations, corporate records and documents, certificates of
corporate and public officials, and other instruments as we have deemed
necessary or advisable for the purposes of this opinion. In such examination we
have assumed the authenticity of all documents submitted to us as originals and
the conformity with the original documents of all documents submitted to us as
copies.
Based on the foregoing and on such legal considerations as we deem
relevant, we are of the opinion that:
1. The Partnership has been duly formed and is an existing limited
partnership under the Delaware Revised Uniform Limited Partnership Act.
2. Upon the issuance by the Partnership of the 2,400,000 Common Units
as described in Post-Effective Amendment No. 1 on Form S-4 to the
Registration Statement on Form S-1 of the Partnership filed with the
Securities and Exchange Commission on or about November 13, 1995 (the
"Registration Statement"), and the payment and receipt of consideration
therefor and the issuance and delivery of a Transfer Application (as
defined in the Registration Statement) as described in the Registration
Statement, such Common Units will be duly authorized, validly issued, fully
paid and nonassessable, except as such nonassessability may be affected by
the matters described in the prospectus included in the Registration
Statement (the "Prospectus") under the caption "The Partnership Agreement -
Limited Liability."
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Validity of
Common Units" in the Prospectus. In giving the foregoing consent, we do not
thereby admit that we are not in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
Bryan Cave LLP
Exhibit 8.1
Bryan Cave LLP
November 13, 1995
Ferrellgas Partners, L.P.
One Liberty Plaza
Liberty, Missouri 64068
Tax Opinion
Gentlemen:
We have acted as special counsel to Ferrellgas Partners, L.P. (the
"Partnership") in connection with the offering of up to 2,400,000 common units
representing limited partner interests ("Common Units") in the Partnership
pursuant to Post-Effective Amendment No. 1 on Form S-4 to the Registration
Statement on Form S-1 of the Partnership relating to the Common Units (the
"Registration Statement") filed with the Securities and Exchange Commission on
or about November 13, 1995 (File No. 33-55185).
All statements of legal conclusions contained in the discussion under the
caption "Tax Considerations" in the prospectus included in the Registration
Statement, unless otherwise noted reflect our opinion with respect to the
matters set forth therein.
In addition, based on the foregoing, we are of the opinion that the federal
income tax discussion in the prospectus included in the Registration Statement
with respect to those matters as to which no legal conclusions are provided is
an accurate discussion of such federal income tax matters (except for the
representations and statements of fact of the Partnership and its general
partner, included in such discussion, as to which we express no opinion).
We hereby consent to the references to our firm and this opinion contained
in the prospectus included in the Registration Statement.
Very truly yours,
Bryan Cave LLP
Exhibit 10.12
SECOND AMENDMENT
TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of October 20, 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 and the
First Amendment to Credit Agreement dated as of July 21, 1995, each 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 requested that the Banks (i) permit
Swingline Loans to be made from availability under the aggregate Facility C
Commitment, (ii) amend the Leverage Ratio covenant, and (iii) make certain other
amendments to the Existing Credit Agreement.
B. 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 definition of "Compliance Certificate" in Section 1.01 of the
Existing Credit Agreement is amended by substituting the number "75" for the
number "30" in that definition.
(b) The definition of "Fixed Charge Coverage Ratio" in Section 1.01 of the
Existing Credit Agreement is amended by deleting the first parenthetical in that
definition and substituting in lieu thereof "(other than revolving credit
borrowings including, with respect to the Borrower, Facility A Revolving Loans,
Swingline Loans, Facility B Revolving Loans and Facility C Revolving Loans)".
(c) Subsection 2.01(a)(i) of the Existing Credit Agreement is amended by
adding the parenthetical "(to the extent such Swingline Loans were made from
availability under the aggregate Facility A Commitment)" after the words
"Swingline Loans" in each place such words appear in that subsection.
(d) Subsection 2.01(a)(ii) of the Existing Credit Agreement is amended to
read in its entirety as follows:
"(ii) Within the limits of each Bank's Facility A Commitment and on the
other terms and subject to the other conditions hereof, the Borrower may borrow
under this subsection 2.01(a), prepay under Section 2.06 and reborrow under this
subsection 2.01(a); provided, that the Borrower shall cause the aggregate
outstanding principal amount of Facility A Revolving Loans and Swingline Loans
(to the extent such Swingline Loans were made from availability under the
aggregate Facility A Commitment) not to exceed $25,000,000 for at least one
period of 75 consecutive days during each fiscal year of Borrower, commencing
with its fiscal year beginning August 1, 1995."
(e) Subsection 2.01(c)(i) of the Existing Credit Agreement is amended to
read in its entirety as follows:
"(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 plus the Effective Amount of all Swingline Loans (to the extent such
Swingline Loans were made from availability under the aggregate Facility C
Commitment) shall not at any time exceed the combined Facility C Commitments,
and the Effective Amount of the Facility C Revolving Loans plus such Bank's Pro
Rata Share of the Effective Amount of all Swingline Loans (to the extent such
Swingline Loans were made from availability under the aggregate Facility C
Commitment) shall not at any time exceed such Bank's Facility C Commitment."
(f) Subsection 2.01(c)(ii) of the Existing Credit Agreement is amended to
read in its entirety as follows:
"(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 and
Swingline Loans (to the extent such Swingline Loans were made from availability
under the aggregate Facility C Commitment) not to exceed zero Dollars for at
least one period of 75 consecutive days during each fiscal year of Borrower,
commencing with its fiscal year beginning August 1, 1995."
(g) Subsection 2.05(a) of the Existing Credit Agreement is amended by
adding the parenthetical "(to the extent such Swingline Loans were made from
availability under the aggregate Facility A Commitment)" after the words
"Swingline Loans" in that subsection.
(h) 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 plus
the Effective Amount of all Swingline Loans (to the extent such
Swingline Loans were made from availability under the aggregate
Facility C Commitment) would exceed the amount of the combined Facility
C Commitments then in effect."
(i) Subsection 2.07(a) of the Existing Credit Agreement is amended by
adding the parenthetical "(to the extent such Swingline Loans were made from
availability under the aggregate Facility A Commitment)" after the words
"Swingline Loans" in each place such words appear in that subsection.
(j) Subsections 2.07(c), (d), (e) and (f) of the Existing Credit Agreement
are relettered as subsections 2.07(d), (e), (f) and (g), respectively, and the
following new subsection 2.07(c) is added to read in its entirety as follows:
"(c) Subject to Section 4.04, if on any date on or
prior to the Facility C Revolving Termination Date the Effective Amount
of all Swingline Loans (to the extent such Swingline Loans were made
from availability under the aggregate Facility C Commitment) and
Facility C Revolving Loans then outstanding exceeds the combined
Facility C Commitments, the Borrower shall immediately, and without
notice or demand, prepay the outstanding principal amount of the
Swingline Loans (to the extent such Swingline Loans were made from
availability under the aggregate Facility C Commitment) and Facility C
Revolving Loans by an aggregate amount equal to the applicable excess."
(k) Subsection 2.08(a) of the Existing Credit Agreement is amended by
adding the parenthetical "(to the extent such Swingline Loans were made from
availability under the aggregate Facility A Commitment)" after the words
"Swingline Loans" in that subsection.
(l) Subsection 2.08(d) of the Existing Credit Agreement is amended 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 and
Swingline Loans (to the extent such Swingline Loans were made from
availability under the aggregate Facility C Commitment) outstanding on
such date together with all accrued and unpaid interest thereon."
(m) Section 2.15 of the Existing Credit Agreement is amended to read in its
entirety as follows:
"2.15 Discretionary Swingline Loans.
(a) From time to time, subject to the conditions set
forth below, at the request of the Borrower, made through the Agent as
set forth below, BofA in its sole and absolute discretion may make
short-term loans to the Borrower not to exceed in the aggregate at any
one time outstanding the principal sum of $10,000,000, to be used by
the Borrower for general working capital needs of the Borrower (each, a
"Swingline Loan"). The availability of Swingline Loans is conditioned
on the satisfaction of each of the following conditions: (i) it shall
be in the sole and absolute discretion of BofA, on each occasion that a
Swingline Loan is requested, whether to make such Swingline Loan; (ii)
each Swingline Loan shall bear interest from the time made until the
time repaid, or until the time, if any, that such Swingline Loan is
converted into a Base Rate Loan as provided below, at the rate(s) from
time to time applicable to Base Rate Loans hereunder; (iii) at the time
of making of any Swingline Loan, the aggregate Effective Amount of all
Swingline Loans, together with the aggregate Effective Amount of all
Facility A Revolving Loans, the Effective Amount of all L/C Obligations
and the Effective Amount of all Facility C Revolving Loans, without
duplication, shall not exceed the sum of (A) the aggregate Facility A
Commitment, and (B) the aggregate Facility C Commitment; provided that,
in each instance, Swingline Loans shall be made first from
availability, if any, under the aggregate Facility A Commitment, and
second, from availability, if any, under the aggregate Facility C
Commitment; (iv) each Swingline Loan, when made, all interest accrued
thereon, and all reimbursable costs and expenses incurred or payable in
connection therewith, shall constitute an Obligation of Borrower
hereunder; and (v) each request for a Swingline Loan from BofA pursuant
to this Section 2.15 shall be made by the Borrower to the Agent, shall
be funded by BofA through the Agent, and shall be repaid by the
Borrower through the Agent (in order that the Agent may keep an
accurate record of the outstanding balance at any time of Swingline
Loans so as to monitor compliance with the terms and provisions
hereof), and each such request shall be in writing unless the Agent in
its sole discretion accepts an oral or telephonic request. Each
Swingline Loan shall be made upon the Borrower's irrevocable written
notice delivered to the Agent substantially in the form of a Notice of
Borrowing (which notice must be received by the Agent prior to 1:00
p.m. (San Francisco time) on the requested date of such Swingline Loan,
specifying:
(i) the amount of the Swingline Loan, which shall be in a minimum
amount of $250,000 or any multiple of $100,000 in excess thereof; and
(ii) the requested date of such Swingline Loan, which shall be a
Business Day;
(b) If any Swingline Loan made pursuant to this
Section 2.15, and in compliance with the conditions set forth in the
immediately preceding paragraph of this Section 2.15, is not repaid by
the Borrower on or before the seventh calendar day following the day
that it was funded by BofA, BofA shall have the right in BofA's sole
and absolute discretion, by giving notice to the Borrower and the
Banks, to cause such Swingline Loan automatically upon the giving of
such notice to be converted into a Facility A Revolving Loan (or, to
the extent that such Swingline Loan was made from availability under
the aggregate Facility C Commitment, a Facility C Revolving Loan)
which, in each case, is a Base Rate Loan, and upon receipt of such
notice each Bank shall fund to the Agent, for the account of BofA, such
Bank's ratable share of such Facility A Revolving Loan or Facility C
Revolving Loan, as applicable, based on such Bank's Pro Rata Share;
provided, that if any Insolvency Proceeding has been commenced with
respect to the Borrower on or prior to the date on which such Swingline
Loan is due, and in lieu of funding its Pro Rata Share of a Facility A
Revolving Loan or Facility C Revolving Loan, as applicable, each Bank
shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from BofA a participation in such Swingline Loan equal to
the product of such Bank's Pro Rata Share times the amount of such
Swingline Loan.
(c) Each Bank's obligation in accordance with this
Agreement to make Facility A Revolving Loans or Facility C Revolving
Loans, as applicable, upon the failure of a Swingline Loan to be repaid
in full when due, or to purchase participations in such Swingline
Loans, shall, in each case, be absolute and unconditional and without
recourse to BofA and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense or other
right which such Bank may have against BofA, the Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of
a Default, an Event of Default or a Material Adverse Effect; or (iii)
any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing."
(n) Subsection 3.01(a) of the Existing Credit Agreement is amended by
adding the parenthetical "(to the extent such Swingline Loans were made
from availability under the aggregate Facility A Commitment)" after the
words "Swingline Loans" in that subsection.
(o) Subsection 7.12(a) of the Existing Credit Agreement is amended to
read in its entirety as follows:
"(a) Leverage Ratio. The Borrower shall maintain as
of the last day of each fiscal quarter a Leverage Ratio for the fiscal
period consisting of such fiscal quarter and the three immediately
preceding fiscal quarters, equal to or less than 4.00 to 1.00;
provided, that for the fiscal period consisting of Borrower's fiscal
quarter ending October 31, 1995 and the three immediately preceding
fiscal quarters, Borrower shall maintain a Leverage Ratio equal to or
less than 4.50 to 1.00.; provided further, that to the extent the
Borrower borrows Loans to make Restricted Payments within 45 days after
the end of any fiscal quarter, the aggregate amount of Loans so
borrowed shall be added to the amount of Funded Debt outstanding at the
end of such quarter for purposes of determining the Leverage Ratio at
the end of such quarter."
(p) Exhibit C to the Existing Credit Agreement is amended to read in
its entirety as set forth on Exhibit A hereto.
SECTION 2. Conditions to Effectiveness. The amendments set
forth in Section 1 of this Amendment shall become effective on October 20, 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) 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;
(iii) 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;
(iv) 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;
(v) A certificate of the Secretary or Assistant Secretary of the
General Partner certifying that the articles or certificate of
incorporation and the bylaws of the General Partner 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, have not been
amended, modified or changed in any respect since July 21, 1995;
(vi) A certificate of the Secretary or Assistant Secretary of Stratton
certifying that the articles or certificate of incorporation and the bylaws
of Stratton, in each case as in effect on the Amendment Effective Date,
have not been amended, modified or changed in any respect since July 21,
1995;
(vii) 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 B;
(viii) a favorable opinion of Orrick, Herrington & Sutcliffe, special
counsel to the Agent; and
(ix) 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, 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.
(c) 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.
(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 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 each of the other Loan
Documents 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
[signatures continued]
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:
[signatures continued]
CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Bank
By: _
Name:
Title:
BANQUE PARIBAS,
as a Bank
By: _
Name:
Title:
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:
EXHIBIT A TO AMENDMENT
EXHIBIT C
(Revised as of October 20, 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 (or, with respect to
Borrower's fiscal period ending October 31, 1995, a Leverage Ration of
not greater than 4.5:1). 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 (to the extent such Swingline Loans were made from
availability under the aggregate Facility A Commitment) did not exceed
$25,000,000 for the consecutive seventy five (75) 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 and Swingline Loans (to the extent such Swingline Loans were made from
availability under the aggregate Facility C Commitment) did not exceed zero
Dollars for the same consecutive seventy five (75) 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 B TO AMENDMENT
FORM OF OPINION OF BRYAN CAVE
____________, 1995
To: The Financial Institutions (the "Banks") parties to the Amendment
referred to below (the "Amendment"), and
Bank of America National Trust and Savings Association, as Agent (in
such capacity, the "Agent")
Ladies and Gentlemen:
This opinion is being delivered in connection with the
transactions contemplated by the Second Amendment to Credit Agreement dated as
of October 20, 1995 (the "Amendment") among Ferrellgas, L.P., a Delaware limited
partnership ("Borrower"), Stratton Insurance Company, Inc., a Vermont
corporation and a Wholly-Owned Subsidiary of the Borrower ("Stratton"),
Ferrellgas, Inc., a Delaware corporation and the sole general partner of
Borrower ("General Partner"), the several financial institutions parties to the
Amendment (collectively, the "Banks"), and Bank of America National Trust and
Savings Association, as agent for the Banks (in such capacity, the "Agent"),
which Amendment amends the Credit Agreement dated as of July 5, 1994 among
Borrower, Stratton, the General Partner, the Banks and the Agent (as amended,
the "Credit Agreement", and as amended by the Amendment, the "Amended Credit
Agreement").
References to Schedules, Sections and subsections are to such
parts of the Amended Credit Agreement unless otherwise noted. Capitalized terms
used herein shall have the meanings given them in the Amended Credit Agreement
unless specifically defined herein.
We have acted as counsel to the Borrower, Stratton and the
General Partner in connection with the execution and delivery by each of them of
the Amendment. We generally represent the Borrower, although the Borrower has
in-house general counsel and has retained other counsel in connection with
specific matters including products liability litigation, ERISA and trademarks.
In our capacity as such counsel, we have been furnished with
and have examined originals or copies, certified or otherwise identified to our
satisfaction as being true copies, of such records, agreements, instruments, and
documents as, in our judgment, are necessary or relevant as the basis for the
opinions expressed below.
We have obtained and relied upon, without independent
investigation as to matters of fact, such certificates and assurances from
public officials, officers of Borrower, Stratton and the General Partner and
such other documents, corporate records and instruments as we have deemed
necessary or appropriate to enable us to render the opinions expressed below. In
additions, we have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary.
Based upon the foregoing and subject to the assumptions,
exceptions, qualifications and limitations set forth below, we are of the
opinion that:
1. The execution and delivery of the Amendment and performance
of the Amended Credit Agreement by the Borrower, the General Partner and
Stratton do not and will not:
(a) contravene the terms of any of the General Partner's,
the Borrower's or any Subsidiary's Organization Documents;
(b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any Contractual
Obligation of which we are aware to which the General Partner, the Borrower or
any Subsidiary is a party or, to our knowledge, 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
(c) violate any material Requirement of Law.
2. Each of the Amendment and the Amended Credit Agreement
constitutes the legal, valid and binding obligations of the General Partner,
Stratton, the Borrower or any Subsidiary party thereto enforceable against such
Person in accordance with their respective terms.
The opinions expressed herein are limited by, subject to and
based on the following assumptions, exceptions, qualifications and limitations:
(a) We have assumed (i) the due execution and delivery,
pursuant to due authorization and with all required capacity, of the Amendment
by all parties thereto (other than the Borrower, the General Partner and
Stratton), (ii) the genuineness of all signatures (other than those of the
Borrower, the General Partner and Stratton), and (iii) the authenticity of all
items submitted to us as originals, the conformity with authentic originals of
all items submitted to us as copies and the authenticity of the originals of
such copies.
(b) Our opinion concerning enforceability is subject to (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
similar laws affecting creditors' rights and remedies generally, (ii) general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity); and (iii) the qualification that the remedy of
specific performance may not be available.
(c) Except as set forth below, our opinion herein reflects
only the application of the applicable Missouri, New York, the General
Corporation Law of the State of Delaware and federal law. In rendering our
opinion, except as set forth below, we have not considered, and hereby disclaim
any opinion as to, the application or impact of any other laws, cases,
decisions, rules or regulations of any other jurisdiction, court or
administrative agency.
(d) The opinions stated herein are as of the date hereof, and
we assume no obligation to update or supplement this opinion to reflect any
facts or circumstances which may hereafter come to our attention or any changes
in laws which may hereafter occur.
(e) This opinion is limited to the matters stated herein and
no opinion is implied or may be inferred beyond the matters expressly stated.
(f) As to matters of fact, we have relied upon various
certificates of officers of the General Partner, the Borrower and Stratton and
upon information furnished to us orally in discussions with officers and
responsible employees of the General Partner, the Borrower and Stratton and upon
information obtained from public officials. Whenever our opinion herein with
respect to the existence or absence of facts is qualified by the phrase "to our
knowledge," "of which we have knowledge," "no facts have come to our attention
that lead us to believe," or similar qualifying language, it is intended to
indicate that during the course of our representation of the General Partner,
the Borrower and Stratton no information has come to our attention that would
give us actual knowledge of the existence of such facts. We have made no other
independent investigation as to the accuracy or completeness of any
representation, warranty, data or other information, written or oral, made or
furnished in or in connection with any document examined by us, and no inference
to the contrary as to our knowledge of the existence of such facts should be
drawn from the fact of our representation of the General Partner, the Borrower
and Stratton as described herein or from the fact that a member of our firm is a
member of the board of directors of Ferrell Companies, Inc., a Kansas
corporation and the sole shareholder of the General Partner, and has previously
served as the Chief Financial Officer of the General Partner.
(g) We point out that the enforceability of indemnification
provisions contained in the Amended Credit Agreement may be limited by
principles of public policy.
(h) We express no opinion as to the validity or enforceability
of any clause contained in the Amended Credit Agreement (i) purporting or
attempting to limit, restrict or waive the right to a trial by jury; or (ii)
purporting or attempting to waive the defenses of forum non conveniens or
improper venue, to the extent such waiver may be determined to be void or
unenforceable as contrary to public policy.
(i) We express no opinion as to the validity or enforceability
of any of the provisions of the Amended Credit Agreement relating to or dealing
with the relationship, rights and obligations among the Agent and the Banks.
The opinions expressed herein are solely for the benefit of
the Banks and the Agent in connection with the above transactions and may not be
relied upon or used in any manner or for any purposes by any other person, other
than counsel to the Banks and the Agent, or as required by law to comply with
the requirements of bank examiners acting under applicable law and regulations
from time to time.
Very truly yours,
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to Registration Statement No. 33-55185 of Ferrellgas Partners,
L.P. on Form S-4 of our reports dated September 12, 1995, appearing in the
Annual Report on Form 10-K of Ferrellgas Partners, L.P. for the year ended July
31, 1995.
We also consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to Registration Statement No 33-55185 of Ferrellgas Partners,
L.P. on Form S-4 of our reports on Ferrellgas, L.P. dated September 12, 1995,
appearing in the Annual Report on Form 10-K of Ferrellgas Partners, L.P. for the
year ended July 31, 1995.
We also consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to Registration Statement No. 33-55185 of Ferrellgas Partners,
L.P. on Form S-4 of our reports on Ferrellgas Finance Corp. dated September 12,
1995, appearing in the Annual Report on Form 10-K of Ferrellgas Partners, L.P.
for the year ended July 31, 1995.
We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
Deloitte & Touche LLP
Kansas City, Missouri
November 10, 1995
