Exhibit 10.4





Exhibit 10.4




THIRD AMENDMENT TO FIFTH AMENDED

AND RESTATED CREDIT AGREEMENT




THIS THIRD AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”)
dated as of April 15, 2009, 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 Third Amendment to Fifth Amended and Restated Credit
Agreement.




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



[Third Amendment]



 


 









 





ARTICLE II.




Amendments to Original Agreement





Section 2.1 Definitions.



(a) Clause (e) of the definition of “Permitted Investments” in Section 1.01 of the Original
Agreement is hereby amended in its entirety to read as follows:




(e) Investments made by the Borrower or any Restricted Subsidiary in any SPE consisting of
(i) capital contributions of Securitization Assets to such SPE and (ii) promissory notes
issued by such SPE payable to the order of the Borrower or any Restricted Subsidiary
representing the noncash portion of the purchase price for Securitization Assets sold to
such SPE, in each case in connection with Accounts Receivable Securitizations permitted
hereunder.



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




“Securitization Assets” means accounts receivable owed to the Borrower or any
Restricted Subsidiary, all collateral (if any) securing such accounts receivable, all
contracts and contract rights in respect thereof, all guarantees in respect thereof, all
proceeds thereof, and other assets that are of the type customarily transferred in
connection with a securitization, factoring, or monetization of similar assets and which are
sold, transferred or otherwise conveyed (or purported to be sold, transferred or otherwise
conveyed) by the Borrower or any Restricted Subsidiary to an SPE in connection with Accounts
Receivable Securitizations permitted hereunder.



Section 2.2 Liens. Subsection (q) of Section 7.01 of the Original Agreement is hereby
amended in its entirety to read as follows:




(q) Liens in Securitization Assets securing Indebtedness of an SPE in connection with
an Accounts Receivable Securitization permitted by Section 7.05 (including the filing of any
related financing statements naming the Borrower or any Restricted Subsidiary as the debtor
thereunder in connection with the sale of Securitization Assets by the Borrower or such
Restricted Subsidiary to such SPE in connection with any such permitted Accounts Receivable
Securitization).



Section 2.3 Asset Sales. Clause (i) in Subsection (c) of Section 7.02 of the Original
Agreement is hereby amended in its entirety to read as follows:




(i) sales or transfers of Securitization Assets by the Borrower or any Restricted
Subsidiary to an SPE and by an SPE to any other Person in connection with any Accounts
Receivable Securitization permitted by Section 7.05,



[Third Amendment]



 


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Section 2.4 Limitation on Indebtedness. Subsection (c) of Section 7.05 of the
Original Agreement is hereby amended to replace the reference to “$160,000,000” with
“$145,000,000”.



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) The Administrative Agent shall have received all of the following, at the 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;




(v) a written notice from the Borrower on or before May 1, 2009 that it desires the
Amendment to be effective; and




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



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



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.



[Third Amendment]




 


3









 







(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.



[Third Amendment]




 


4









 







Section 5.3 Amendment Fee. The Borrower hereby agrees to pay to the Administrative
Agent, for the account of each Lender that has delivered to the Administrative
Agent an executed counterpart to this Amendment at or prior to 5:00 p.m. Eastern Standard Time
on April 15, 2009, a non-refundable amendment fee (the “Amendment Fee”) in an amount equal
to 0.15% of each such Lender’s Commitment, which Amendment Fee has been fully earned as of the
effective date hereof and shall be due and payable in full on effective the date hereof.



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.]




[Third Amendment]




 


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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:	 	/s/ James R. VanWinkle	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	James R. VanWinkle	 	 
	 

	 	 	 	 	 	Title:
	 	Senior Vice President and	 	 
	 

	 	 	 	 	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	FERRELLGAS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ James R. VanWinkle	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	James R. VanWinkle	 	 
	 

	 	 	 	 	 	Title:
	 	Senior Vice President and	 	 
	 

	 	 	 	 	 	 	 	Chief Financial Officer	 	 






SIGNATURE PAGE TO THIRD AMENDMENT TO

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	 	 	BANK OF AMERICA,
N.A., as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Jay Salitza	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Jay Salitza	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as a Lender, L/C Issuer and Swing Line Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Jay Salitza	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Jay Salitza	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 





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	 	 	BNP PARIBAS, as a Lender and an L/C Issuer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Richard J. Wernli	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Richard J. Wernli	 	 
	 

	 	 	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Keith Richards	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Keith Richards	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






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	 	 	JPMORGAN CHASE BANK, NA, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Kenneth J. Fatur	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Kenneth J. Fatur	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 






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	 	 	WELLS FARGO BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Thomas E. Stelmar, Jr.	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Thomas E. Stelmar, Jr.	 	 
	 

	 	 	 	Title:
	 	AVP / Portfolio Manager	 	 






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	 	 	CAPITAL ONE, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Gina Monette	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Gina Monette	 	 
	 

	 	 	 	Title:
	 	VP — U.S. Corporate Banking	 	 






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	 	 	SOCIETE GENERALE, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Chung-Taek Oh	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Chung-Taek Oh	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Barbara Paulsen	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barbara Paulsen	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 






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	 	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ John Frazier	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	John Frazier	 	 
	 

	 	 	 	Title:
	 	Officer	 	 






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	 	 	CREDIT SUISSE, CAYMAN ISLANDS	 	 
	 	 	BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ James Moran	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	James Moran	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Nupur Kumar	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Nupur Kumar	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






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	 	 	FIFTH THIRD BANK, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Janice Kriwanek	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Janice Kriwanek	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






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	 	 	DEUTSCHE BANK TRUST COMPANY	 	 
	 	 	AMERICAS, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Dusan Lazarov	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Dusan Lazarov	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Evelyn Thierry	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Evelyn Thierry	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






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	 	 	M&I MARSHALL & ILSLEY BANK, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ David Hunt	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	David Hunt	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Aaron M. Wiechman	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Aaron M. Wiechman	 	 
	 

	 	 	 	Title:
	 	AVP	 	 






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	 	 	THE PRIVATE BANK AND TRUST COMPANY, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ James C. Binz	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	James C. Binz	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 






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	 	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ David B. Gookin	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	David B. Gookin	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 






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CONSENT AND AGREEMENT


The undersigned hereby (i) consents to the provisions of the Third Amendment to Fifth Amended
and Restated Credit Agreement Consent (the “Third 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 Third 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:	 	/s/ James R. VanWinkle	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	James R. VanWinkle	 	 
	 

	 	 	 	Title:
	 	Senior Vice President and Chief
Financial Officer	 	 





CONSENT AND AGREEMENT TO THIRD AMENDMENT TO

FIFTH AMENDED AND RESTATED CREDIT AGREEMENT