EX-10.1






EXHIBIT 10.1




SECOND AMENDMENT TO FIFTH AMENDED




AND RESTATED CREDIT AGREEMENT




THIS SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) dated as of October 15, 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 Second Amendment to Fifth Amended and Restated Credit
Agreement.




“Credit Agreement” means the Original Agreement as amended hereby.



ARTICLE II.




Amendments to Original Agreement




Section 2.1 Definitions.



(a) The following definition in Section 1.01 of the Original Agreement is hereby amended in
its entirety to read as follows:




“Letter of Credit Sublimit” means (i) an amount equal to $200,000,000 through
February 28, 2009, and (ii) thereafter, an amount equal to $150,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.



(b) Section 1.01 of the Original Agreement is hereby amended to add the following definition
thereto in appropriate alphabetical order to read as follows:




“Impacted Lender” means a Defaulting Lender or a Lender as to which (a) the L/C
Issuer has a good faith belief that the Lender has defaulted in fulfilling its obligations
under one or more other syndicated credit facilities or (b) an entity that Controls the
Lender has been deemed insolvent or become subject to a bankruptcy or other similar
proceeding.



Section 2.2 Borrowings of Loans. The second sentence of subsection (a) of Section
2.02 of the Original Agreement is hereby amended to replace the reference to “11:00 a.m.” with
“12:00 noon”. The second sentence of subsection (b) of Section 2.02 of the Original Agreement is
hereby amended to replace the reference to “1:00 p.m.” with “3:00 p.m.”.



Section 2.3 Letters of Credit. Section 2.03 of the Original Agreement is hereby
amended in its entirety to read as follows:



2.03 Letters of Credit.



(a) The Letter of Credit Commitment.




(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees,
in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time
to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to
amend or extend Letters of Credit previously issued by it, in accordance with subsection (b)
below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally
agree to participate in Letters of Credit issued for the account of the Borrower and any
drawings thereunder; provided that after giving effect to any L/C Credit Extension
with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the
Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Pro Rata of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a representation
by the Borrower that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.




(ii) No L/C Issuer shall issue any Letter of Credit, if:




(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter
of Credit would occur more than twelve months after the date of issuance or last
extension, unless the Required Lenders have approved such expiry date; or




(B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such expiry
date.




(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:




(A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such
Letter of Credit, or any Law applicable to such L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C
Issuer refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which such L/C
Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which such L/C Issuer in good faith deems
material to it;




(B) the issuance of such Letter of Credit would violate one or more policies of
such L/C Issuer applicable to letters of credit generally;




(C) such Letter of Credit is to be denominated in a currency other than
Dollars;




(D) a default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless such L/C Issuer
has entered into arrangements reasonably satisfactory to such L/C Issuer, provided
that the Borrower and the L/C Issuers agree that cash collateral shall constitute
satisfactory arrangements, with the Borrower or such Lender to eliminate such L/C
Issuer’s risk with respect to such Lender; or




(E) any Lender is at such time an Impacted Lender hereunder, unless such L/C
Issuer has entered into arrangements reasonably satisfactory to such L/C Issuer,
provided that the Borrower and the L/C Issuers agree that cash collateral shall
constitute satisfactory arrangements, with the Borrower or such Lender to eliminate
such L/C Issuer’s risk with respect to such Lender.




(iv) No L/C Issuer shall be obligated to amend any Letter of Credit if the L/C Issuer
would not be permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.




(v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.




(vi) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and each L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article IX
with respect to any acts taken or omissions suffered by such L/C Issuer in connection with
Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to such L/C Issuer.



(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to applicable the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately completed
and signed by a Responsible Officer of the General Partner of the Borrower. Such Letter of
Credit Application must be received by the applicable L/C Issuer and the Administrative
Agent not later than 12:00 noon at least two Business Days (or such later date and time as
such L/C Issuer may agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be; provided that, if such
requested Letter of Credit will be issued in any of the forms previously approved by the
applicable L/C Issuer and the Administrative Agent, such L/C Issuer shall use its reasonable
efforts to issue such Letter of Credit on the date the Borrower delivers to such L/C Issuer
the Letter of Credit Application relating thereto (but shall have no liability for failing
to accomplish such issuance on such date). In the case of a request for an initial issuance
of a Letter of Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder, if applicable; (F) the full
text of any certificate to be presented by such beneficiary in case of any drawing
thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other
matters as such L/C Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as such L/C Issuer may require.
Additionally, the Borrower shall furnish to the applicable L/C Issuer and the Administrative
Agent such other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as such L/C Issuer or the
Administrative Agent may require.




(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless the applicable L/C Issuer has received written notice from any Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied, then, subject to
the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a
Letter of Credit for the account of the Borrower or enter into the applicable amendment, as
the case may be, in each case in accordance with such L/C Issuer’s usual and customary
business practices. Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such
L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product
of such Lender’s Pro Rata Share times the amount of such Letter of Credit.




(iii) If the Borrower so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer shall, if consistent with the provisions of Section 2.03(a)(ii) and in
its reasonable judgment the issuance would not be otherwise disadvantageous, shall agree to
issue a Letter of Credit that has automatic extension provisions (each, an
“Auto-Extension Letter of Credit”); provided that any such Auto-Extension
Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in
each twelve-month period (commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension
Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter
of Credit is issued. Notwithstanding the above, no L/C Issuer will give any such nonrenewal
notice if the conditions precedent in Section 4.02 have been met and a Responsible Officer
of General Partner has given such L/C Issuer a certificate to such effect, provided that
after giving effect to any automatic extension of a Letter of Credit, the expiry date of
such Letter of Credit will not occur after the Letter of Credit Expiration Date. Unless
otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make
a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter
of Credit has been issued, the Lenders shall be deemed to have authorized (but may not
require) such L/C Issuer to permit the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration Date; provided,
however, that such L/C Issuer shall not permit any such extension if (A) such L/C
Issuer has determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or
(B) it has received notice (which may be by telephone or in writing) on or before the day
that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, and in each such case directing
such L/C Issuer not to permit such extension.




(iv) If the Borrower so requests in any applicable Letter of Credit Application, the an
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
permits the automatic reinstatement of all or a portion of the stated amount thereof after
any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless
otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make
a specific request to such L/C Issuer to permit such reinstatement. Once an
Auto-Reinstatement Letter of Credit has been issued, except as provided in the following
sentence, the Lenders shall be deemed to have authorized (but may not require) such L/C
Issuer to reinstate all or a portion of the stated amount thereof in accordance with the
provisions of such Letter of Credit. Notwithstanding the foregoing, if such
Auto-Reinstatement Letter of Credit permits the applicable L/C Issuer to decline to
reinstate all or any portion of the stated amount thereof after a drawing thereunder by
giving notice of such non-reinstatement within a specified number of days after such drawing
(the “Non-Reinstatement Deadline”), such L/C Issuer shall not permit such
reinstatement if it has received a notice (which may be by telephone or in writing) on or
before the day that is seven Business Days before the Non-Reinstatement Deadline (A) from
the Administrative Agent that the Required Lenders have elected not to permit such
reinstatement or (B) from the Administrative Agent, any Lender or the Borrower that one or
more of the applicable conditions specified in Section 4.02 is not then satisfied (treating
such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each
case, directing such L/C Issuer not to permit such reinstatement.




(v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the
applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true
and complete copy of such Letter of Credit or amendment.



(c) Drawings and Reimbursements; Funding of Participations.




(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and
the Administrative Agent thereof. Not later than 12:00 noon on the date of any payment by
such L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the
Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal
to the amount of such drawing. If the Borrower fails to so reimburse the applicable L/C
Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the
amount of such Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed
to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date
in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the
amount of the unutilized portion of the Aggregate Commitments and the conditions set forth
in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by
either L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding effect of such
notice.




(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to the Administrative Agent for the account of the applicable L/C Issuer at the
Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base Rate Committed
Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so
received to the applicable L/C Issuer.




(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in Section
4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In such event, each
Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in
such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of
its participation obligation under this Section 2.03.




(iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section
2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely
for the account of such L/C Issuer.




(v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse any
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender
may have against such L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender’s obligation to make Committed Loans pursuant to this
Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery
by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve
or otherwise impair the obligation of the Borrower to reimburse such L/C Issuer for the
amount of any payment made by such L/C Issuer under any Letter of Credit, together with
interest as provided herein.




(vi) If any Lender fails to make available to the Administrative Agent for the account
of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), such L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to such L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by such L/C Issuer in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by
such L/C Issuer in connection with the foregoing. If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed
Loan included in the relevant Committed Borrowing or L/C Advance in respect of the relevant
L/C Borrowing, as the case may be. A certificate of the applicable L/C Issuer submitted to
any Lender (through the Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.



(d) Repayment of Participations.




(i) At any time after any L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the account of
such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Share thereof in the same funds as those received by
the Administrative Agent.




(ii) If any payment received by the Administrative Agent for the account of any L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement entered into
by such L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for
the account of such L/C Issuer its Pro Rata Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to
time in effect. The obligations of the Lenders under this clause shall survive the payment
in full of the Obligations and the termination of this Agreement.



(e) Obligations Absolute. The obligation of the Borrower to reimburse the applicable L/C
Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:




(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




(ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), such L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




(iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




(iv) any payment by such L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by such L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or




(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will immediately notify the applicable L/C Issuer.
The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuers
and its correspondents unless such notice is given as aforesaid.



(f) Role of L/C Issuers. Each Lender and the Borrower agree that, in paying any drawing
under a Letter of Credit, the L/C Issuers shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuers, the Administrative
Agent, any of their respective Related Parties nor any correspondent, participant or assignee of
the L/C Issuers shall be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable;
(ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii)
the due execution, effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not, preclude
the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant or assignee of the L/C
Issuers shall be liable or responsible for any of the matters described in clauses (i) through (v)
of Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the applicable L/C Issuer, and such
L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves
were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s
willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuers may accept
documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the L/C Issuers shall
not be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.



(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if any L/C Issuer
has honored any full or partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For
purposes of this Section 2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize” means
to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C
Issuers and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to the Administrative Agent and the
L/C Issuers (which documents are hereby consented to by the Lenders). Derivatives of such term
have corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the
benefit of the L/C Issuers and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.



(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable L/C
Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable
to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.



(i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share a Letter of Credit fee (the
“Letter of Credit Fee”) (i) for each commercial Letter of Credit equal to the Applicable
Rate times the daily amount available to be drawn under such Letter of Credit, and (ii) for
each standby Letter of Credit equal to the Applicable Rate times the daily amount available
to be drawn under such Letter of Credit. For purposes of computing the daily amount available to
be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.07. Letter of Credit Fees shall be (i) due and payable on each Interest
Payment Date for Base Rate Loans, commencing with the first such date to occur after the issuance
of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii)
computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each standby Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein,
upon the request of the Required Lenders, when any amount payable by the Borrower under any Loan
Document is not paid when due, all Letter of Credit Fees shall accrue at the Default Rate.



(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee (i)
with respect to each commercial Letter of Credit, 0.200% of the amount available to be drawn under
such Letter of Credit and (ii) with respect to each standby Letter of Credit issued and
outstanding, 0.200% per annum of the amount available to be drawn under such Letter of Credit,
computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis
in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of
each March, June, September and December in respect of the most recently-ended quarterly period (or
portion thereof, in the case of the first payment), commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07.
In addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account the
customary issuance, presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuers relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand and are nonrefundable.



(k) Conflict with Issuer Documents. In the event of any conflict between the terms hereof
and the terms of any Issuer Document, the terms hereof shall control.”



Section 2.4 Certificates; Other Information. Section 6.02 of the Original Agreement
is hereby amended to (i) delete the word “and” at the end of subsection (c), (ii) rename subsection
(d) as subsection (f), and (iii) add new subsections (d) and (e) thereto immediately following
subsection (c) thereof to read as follows:




(d) on fifteenth day and the last day of each month through and including February 28,
2009 (or, if such day not a Business Day, the next succeeding Business Day) and thereafter
monthly on the last day of each month (or, if such day not a Business Day, the next
succeeding Business Day), a certificate of a Responsible Officer of the General Partner of
the Borrower setting forth, as of the preceding Business Day of such month, a schedule of
all propane gallons subject to Swap Contracts and Commodity Swaps of the Borrower and the
other Loan Parties, the net mark-to-market value therefor, any margin required or supplied
under any such Swap Contracts and Commodity Swaps, the counterparty to each Swap Contract
and Commodity Swap, a sensitivity analysis with respect to Commodity Swaps included therein
reflecting the incremental margin that would be required to be supplied under any such
credit support document if (all other things being equal) commodity prices were at different
price levels as specified by the Administrative Agent to the Borrower, and such other
information with respect to such Swap Contracts and Commodity Swaps as may be reasonably
requested by the Administrative Agent or any Lender;




(e) on fifteenth day and the last day of each month through and including February 28,
2009 (or, if such day not a Business Day, the next succeeding Business Day) and thereafter
monthly on the last day of each month (or, if such day not a Business Day, the next
succeeding Business Day), a report setting forth, as of the preceding Business Day of such
month, a report summarizing the amount of gallons of propane anticipated to be sold to
customers during the following 12 month period subject to fixed price or cap or collar price
sales contracts, together with such other information with respect to such sales contracts
as may be reasonably requested by the Administrative Agent or any Lender; and



Section 2.5 Replacement of Lenders. The first sentence of Section 10.13 of the
Original Agreement is hereby amended to replace the phrase “if any Lender is a Defaulting Lender”
with “if any Lender is a Defaulting Lender or an Impacted Lender”.



ARTICLE III.




Conditions of Effectiveness




Section 3.1 Effective Date. This Amendment shall become effective as of the date
first above written when and only when:



(a) Administrative Agent shall have received all of the following, at Administrative Agent’s
office, duly executed and delivered all of the following:



(i) this Amendment;



(ii) the attached Consent and Agreement;




(iii) such certificates of resolutions or other action, incumbency certificates or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may reasonably require evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection with this Agreement
and the other Loan Documents to which such Loan Party is a party;




(iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed; and




(v) such other supporting documents as Agent may reasonably request.



(b) Borrower shall have paid, in connection with such Loan Documents, all recording, handling,
legal, and other fees or payments required to be paid to Administrative Agent or any Lender
pursuant to any Loan Documents.



ARTICLE IV.




Confirmation; Representations and Warranties




In order to induce each Lender to enter into this Amendment, the Borrower represents and
warrants to each Lender that:



(a) The representations and warranties of the Borrower contained in the Original Agreement are
true and correct at and as of the time of the effectiveness hereof, except to the extent that the
facts on which such representations and warranties are based have been changed by the extensions of
credit under the Credit Agreement or that such representations and warranties specifically refer to
an earlier date, in which case such representations and warranties were true and correct as of such
earlier date.



(b) The Borrower and the General Partner are duly authorized to execute and deliver this
Amendment and have duly taken all corporate action necessary to authorize the execution and
delivery of this Amendment and to authorize the performance of the obligations of the Borrower and
the General Partner hereunder.



(c) The execution and delivery by the Borrower and the General Partner of this Amendment, the
performance by the Borrower and the General Partner of their obligations hereunder and the
consummation of the transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the Organizational Documents of the Borrower or
the General Partner, or of any material agreement, judgment, license, order or permit applicable to
or binding upon the Borrower or the General Partner, or result in the creation of any lien, charge
or encumbrance upon any assets or properties of the Borrower or the General Partner. Except for
those which have been obtained, no consent, approval, authorization or order of any court or
Governmental Authority or third party is required in connection with the execution and delivery by
the Borrower and the General Partner of this Amendment or to consummate the transactions
contemplated hereby.



(d) When duly executed and delivered, each of this Amendment and the Credit Agreement will be
a legal and binding obligation of the Borrower and the General Partner, enforceable in accordance
with its terms, except as limited by bankruptcy, insolvency or similar laws of general application
relating to the enforcement of creditors’ rights and by equitable principles of general
application.



ARTICLE V.




Miscellaneous




Section 5.1 Ratification of Agreements. The Original Agreement as hereby amended is
hereby ratified and confirmed in all respects. The Loan Documents, as they may be amended or
affected by this Amendment, are hereby ratified and confirmed in all respects. Any reference to
the Credit Agreement in any Loan Document shall be deemed to be a reference to the Original
Agreement as hereby amended. The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the
Lenders under the Credit Agreement, the Notes, or any other Loan Document nor constitute a waiver
of any provision of the Credit Agreement, the Notes or any other Loan Document.



Section 5.2 Survival of Agreements. All representations, warranties, covenants and
agreements of the Borrower herein shall survive the execution and delivery of this Amendment and
the performance hereof, including without limitation the making or granting of the Loans, and shall
further survive until all of the Obligations are paid in full.



Section 5.3 L/C Pledge Agreement. On or before November 3, 2008 (and pursuant to the
provisions of Section 2.03 of the Credit Agreement), the Borrower shall Cash Collateralize the then
Outstanding Amount of all L/C Obligations in an amount equal to the Pro Rata Share of all
Defaulting Lenders’ and Impacted Lenders’ participation interest in such L/C Obligations to secure
the obligations of such Defaulting Lenders and Impacted Lenders under Section 2.03(c)(ii) of the
Credit Agreement.



Section 5.4 Loan Documents. This Amendment is a Loan Document, and all provisions in
the Credit Agreement pertaining to Loan Documents apply hereto.



Section 5.5 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.



Section 5.6 Counterparts; Fax. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each of which when so
executed shall be deemed to constitute one and the same Amendment. This Amendment may be validly
executed by facsimile or other electronic transmission.



THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.



[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]





1






IN WITNESS WHEREOF, this Amendment is executed as of the date first above written.




	 	 	 
	FERRELLGAS, L.P.
	By:

	 	Ferrellgas, Inc., as its General Partner

By:
	
 
	 	Name:
	
 
	 	Title:







FERRELLGAS, INC.




By:

Name:

Title:




2





S.CONTBANK OF AMERICA, N.A., as




Administrative Agent




	 	 	 	By:






Name:




Title:




BANK OF AMERICA, N.A., as a Lender, L/C Issuer and
Swing Line Lender




	 	 	 	By:






Name:




Title:



3




LASALLE BANK NATIONAL ASSOCIATION, as a Lender




	 	 	 	By:






Name:




Title:



4




BNP PARIBAS, as a Lender and an L/C Issuer




	 	 	 	By:






Name:




Title:




	 	 	 	By:






Name:




Title:



5




JPMORGAN CHASE BANK, NA, as a Lender




	 	 	 	By:






Name:




Title:



6




WELLS FARGO BANK, N.A., as a Lender




	 	 	 	By:






Name:




Title:



7




BANK OF OKLAHOMA, NATIONAL ASSOCIATION, as a
Lender




	 	 	 	By:






Name:




Title:



8




CAPITAL ONE, N.A., as a Lender




	 	 	 	By:






Name:




Title:



9




SOCIETE GENERALE, as a Lender




	 	 	 	By:






Name:




Title:



10




U.S. BANK NATIONAL ASSOCIATION, as a Lender




	 	 	 	By:






Name:




Title:



11




CREDIT SUISSE, CAYMAN ISLANDS BRANCH (f/k/a CREDIT
SUISSE FIRST BOSTON CAYMAN ISLANDS BRANCH), as a
Lender




	 	 	 	By:






Name:




Title:




	 	 	 	By:






Name:




Title:



12




FIFTH THIRD BANK, as a Lender




	 	 	 	By:






Name:




Title:



13




DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender




	 	 	 	By:






Name:




Title:



14




M&I MARSHALL & ILSLEY BANK, as a Lender




	 	 	 	By:






Name:




Title:



15





THE PRIVATEBANK AND TRUST COMPANY, as a
Lender




	 	 	 	By:






Name:




Title:



16





PNC BANK, NATIONAL ASSOCIATION, as a Lender




	 	 	 	By:






Name:




Title:



17



CONSENT AND AGREEMENT




The undersigned hereby (i) consents to the provisions of the Second Amendment to Fifth Amended
and Restated Credit Agreement Consent (the “Second Amendment”) and the transactions
contemplated herein, (ii) ratifies and confirms its Guaranty dated as of April 22, 2005, made by it
for the benefit of the Administrative Agent and the Lenders, executed pursuant to the Credit
Agreement and the other Loan Documents, (iii) agrees that all of its obligations and covenants
thereunder shall remain unimpaired by the execution and delivery of the Second Amendment and the
other documents and instruments executed in connection herewith, and (iv) agrees that its Guaranty
and the other Loan Documents shall remain in full force and effect.



BLUE RHINO GLOBAL SOURCING, INC.



By:      

Name:

Title:





18