THIRD AMENDMENT TO PURCHASE AGREEMENT
This Third Amendment to Purchase Agreement (this "Third Amendment") is
entered into effective as of April 6, 2001, by and among Ferrellgas Partners,
L.P., a Delaware limited partnership ("Purchaser"), Ferrellgas, L.P., a Delaware
limited partnership ("Subsidiary OLP"), and The Williams Companies, Inc., a
Delaware corporation ("Seller") and successor in interest to Williams Natural
Gas Liquids, Inc., a Delaware corporation. This Third Amendment amends the
Purchase Agreement dated as of November 7, 1999, as amended (the "Purchase
Agreement"), by and among Purchaser, Subsidiary OLP and Williams Natural Gas
Liquids, Inc. Unless otherwise defined herein, all capitalized terms used herein
shall have the meaning given to them in the Purchase Agreement.
RECITALS:
WHEREAS, in connection with the Purchase Agreement, Purchaser issued Senior
Units to Williams Natural Gas Liquids, Inc.; and
WHEREAS, pursuant to Section 9.3 of the Purchase Agreement, the parties
hereto desire to amend the Purchase Agreement to reflect amendments incorporated
into the Third Amended and Restated Agreement of Limited Partnership of
Purchaser, which sets forth the rights, terms and obligations of the Senior
Units and the holders thereof;
NOW, THEREFORE, effective as of the date first set forth above, the
Purchase Agreement is amended as follows:
ARTICLE 1
AMENDMENTS
1.1 The first sentence of Section 4.2(d) of the Purchase Agreement is hereby
amended and restated in its entirety to be as follows:
On or prior to the eighth anniversary of the Closing Date, promptly
(and in each event, no later than five business days) after any sale of
common units issuable upon conversion of the Senior Units ("Common
Units") by Seller and/or a permitted transferee of Seller, Purchaser
and Subsidiary OLP, jointly and severally, shall pay to Seller and/or
such permitted transferee, as applicable, in cash the product of (i)
the difference, if positive, of the Converted Common Unit Value (plus
accumulated and undistributed distributions) less the Net Common Unit
Proceeds, multiplied by (ii) the number of Common Units sold; provided,
however, that this provision shall apply only to one sale for each
Common Unit and only to the extent that such sale complies with the
Purchaser MLP Partnership Agreement, as amended, and the
Representations Agreement dated December 17, 1999, as amended, among
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the Purchaser, the General Partner, Subsidiary OLP and Seller.
1.2 Section 4.2(d)(B) of the Purchase Agreement is hereby amended and
restated in its entirety to be as follows:
"Net Common Unit Proceeds" means an amount equal to the net proceeds,
on a per Common Unit basis, received by Seller or a permitted
transferee of Seller upon a sale by Seller or such permitted transferee
of any of the Common Units in a single transaction or a series of
transactions involving (x) a bona fide sale to an unaffiliated third
party, or (y) an underwritten public offering by a reputable investment
bank.
1.3 Section 4.2(f) of the Purchase Agreement is hereby amended and restated
in its entirety to be as follows:
In the event that, after the earlier of (a) December 31, 2005, or (B)
the occurrence of a Material Event, as defined in the Purchaser MLP
Partnership Agreement, one or more holder(s) of the Senior Units have
not irrevocably elected to convert their Senior Units into Common
Units, on or prior to the eighth anniversary of the Closing Date,
promptly (and in each event, no later than five business days) after
any sale of Senior Units by Seller and/or a permitted transferee of
Seller (which sale shall be in accordance with the definition of "Net
Senior Unit Proceeds" below), Purchaser and Subsidiary OLP, jointly and
severally, shall pay to Seller and/or a permitted transferee of Seller,
as applicable, in cash the product of (i) the difference, if positive,
of the Face Value per Senior Unit (plus accumulated and undistributed
distributions) less the Net Senior Unit Proceeds, multiplied by (ii)
the number of Senior Units sold; provided, however, that this provision
shall apply only to one sale for each Senior Unit and only to the
extent that such sale complies with the Purchaser MLP Partnership
Agreement, as amended, and the Representations Agreement dated December
17, 1999, as amended, among the Purchaser, the General Partner,
Subsidiary OLP and Seller. "Net Senior Unit Proceeds" means an amount
equal to the net proceeds, on a per Senior Unit basis, received by
Seller and/or a permitted transferee of Seller upon a sale by Seller or
such permitted transferee of any of the Senior Units in a single
transaction or a series of transactions involving (x) a bona fide sale
to an unaffiliated third party, or (y) an underwritten public offering
by a reputable investment bank.
1.4 The first clause of Section 7.3(a) of the Purchase Agreement until the
definition of "Seller Indemnitees" is hereby amended and restated in its
entirety to be as follows:
Subject to the terms and conditions set forth herein, from and after
the Closing, Purchaser shall indemnify and hold harmless (A) Seller,
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(B) any lender or lenders to whom the Senior Units (or any Common Units
into which the Senior Units are converted) are pledged in connection
with a loan to enable a permitted transferee of all or a portion of the
rights of Seller hereunder to purchase, among other things, the Senior
Units (or any Common Units into which the Senior Units are converted),
or any refinancings thereof, or to whom the Senior Units (or any Common
Units into which the Senior Units are converted) are assigned in
connection with a foreclosure on the Senior Units (or any Common Units
into which the Senior Units are converted) pursuant to such loan, (C)
any permitted transferee who acquires the Senior Units (or any Common
Units into which the Senior Units are converted) upon or after such
foreclosure, and (D) Seller in the event Seller acquires the Senior
Units from JEF Capital Management, Inc., and their respective
directors, officers, employees, affiliates, controlling persons, agents
and representatives and their successors and assigns (collectively,
"Seller Indemnitees")
1.5 A new Section 8.1(d) is hereby added to the Purchase Agreement and
shall read as follows:
Notwithstanding the foregoing, if any rights of a party to this
Agreement are assigned or transferred to any other person or entity in
accordance with the terms hereof, no such rights may thereafter be
modified or terminated without the consent of the assignee or
transferee.
1.6 The third notification address of Section 9.1 of the Purchase Agreement
is hereby amended by deleting in its entirety the address "Andrews and Kurth,
L.L.P., 805 Third Avenue, New York, New York 10022, Attention: Michael Swidler,
Telecopy: (212) 850-2929" and replacing it with the address "Vinson & Elkins,
L.L.P., 666 Fifth Avenue, 26th floor, New York, New York 10103, Attention:
Michael Swidler, Telecopy: (917) 206-8100."
1.7 The fifth notification address of Section 9.1 of the Purchase Agreement
is hereby amended by deleting in its entirety the address "Bryan Cave L.L.P.,
3500 One Kansas City Place, 1200 Main Street, Kansas City, MO 64105, Attention:
Morris K. Withers, Telecopy: (816) 374-3300" and replacing it with the address
"Mayer, Brown & Platt, 700 Louisiana Street, Suite 3600, Houston, Texas 77002,
Attention: David L. Ronn, Telecopy: (713) 632-1825."
1.8 Section 9.6 is hereby amended and restated in its entirety to read as
follows:
This Agreement shall be binding upon and inure solely to the benefit of
each party hereto, the Seller Indemnitees and the Purchaser
Indemnitees, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
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ARTICLE 2
GENERAL PROVISIONS
2.1 Except as expressly amended hereby, the Purchase Agreement shall
continue in full force and effect in accordance with the provisions thereof on
the date hereof.
2.2 Article IX of the Purchase Agreement shall apply to this Third
Amendment and be incorporated herein with the same force and effect as if those
sections were reprinted as part of this Third Amendment, including to the extent
Article IX was expressly amended herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
effective for all purposes as of the date first set forth above.
FERRELLGAS PARTNERS, L.P.
By: Ferrellgas, Inc., its General Partner
By: /s/ Kevin T. Kelly
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Kevin T. Kelly
Senior Vice President
FERRELLGAS, L.P.
By: Ferrellgas, Inc., its General Partner
By: /s/ Kevin T. Kelly
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Kevin T. Kelly
Senior Vice President
THE WILLIAMS COMPANIES, INC.
By: /s/ S. J. Malcolm By: /s/ Don R. Wellendorf, his attorney in fact
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Name: S. J. Malcolm
Title: Executive Vice President
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