FIRST AMENDMENT TO PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made
and entered into as of the 17th day of December, 1999, by and among Ferrellgas
Partners, L.P., a Delaware limited partnership ("Purchaser"), Ferrellgas, L.P.,
a Delaware limited partnership ("Subsidiary OLP"), and Williams Natural Gas
Liquids, Inc., a Delaware corporation ("Seller").
W I T N E S S E T H:
WHEREAS, Purchaser, Subsidiary OLP and Seller have entered into that
certain Purchase Agreement dated as of November 7, 1999 (the "Purchase
Agreement"); and
WHEREAS, Purchaser, Subsidiary OLP and Seller desire to amend the
Purchase Agreement as set forth in this Amendment;
WHEREAS, pursuant to Section 9.3 of the Purchase Agreement, the
Purchase Agreement may be amended in writing by the parties
thereto;
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants, agreements and conditions contained
herein, the parties hereto agree as follows:
ARTICLE
1 AMENDMENTS TO THE PURCHASE AGREEMENT 1.1 SECTION Amendment to the Preamble to
the Purchase Agreement .
The Preamble to the Purchase Agreement is hereby amended by deleting
the parenthetical "("Agreement")" in its entirety and inserting in lieu thereof
the parenthetical "(as amended, the "Agreement")".
1.1 SECTION Amendment to Article IV of the Purchase Agreement .
Article IV of the Purchase Agreement is hereby amended by adding the
following section:
"SECTION 4.13 Audit.
At Purchaser's request, Seller has engaged Ernst & Young
L.L.P. to perform an audit of the Company's financial records for the
nine months ended September 30, 1999, and for the years ended December
31, 1998 and December 31, 1997, and prepare financial statements whose
format will comply with the requirements of the Securities and Exchange
Commission. Purchaser agrees to pay the cost of the audit, including
audit fees and expenses, up to $300,000; provided, however, that if
Purchaser requests Ernst & Young L.L.P. to deviate in any substantial
manner from the scope of the audit as set forth in Annex A hereto,
Purchaser shall bear any incremental costs, even if the cost of the
audit exceeds $300,000. The cost of such audit, including audit fees
and expenses but excluding any incremental costs of the audit resulting
from any deviation in the scope of the audit as set forth in Annex A
hereto, above $300,000 will be borne by Seller. In connection with the
Company's audit, Seller agrees to use its reasonable best efforts to
execute a Management Representation Letter to be delivered to Ernst &
Young L.L.P."
1.1 SECTION Amendment to Section 5.1(e) of the Purchase Agreement .
Section 5.1(e) of the Purchase Agreement is hereby amended by deleting
the number "$120,230,000" in the second line thereof and inserting in lieu
thereof the number "$118,426,550".
1.1 SECTION Amendment to Section 5.1(f) of the Purchase Agreement .
Section 5.1(f) of the Purchase Agreement is hereby amended and restated
to read as follows:
"(f) Purchaser shall have received a certificate from an
authorized officer of Seller, dated the Closing Date, to the effect
that the conditions set forth in Sections 5.1(c), (d), (e) and (h) have
been satisfied by Seller; and"
1.1 SECTION Amendment to Section 5.2(e) of the Purchase Agreement .
Section 5.2(e) of the Purchase Agreement shall be amended and restated
to read as follows:
"(e) Seller shall have received a certificate from an
authorized officer of the General Partner with respect to Purchaser,
dated the Closing Date, to the effect that the conditions set forth in
Sections 5.2(c), (d), and (j) have been satisfied by Purchaser."
1.1 SECTION Amendment to Section 7.2(a)(ii) of the Purchase Agreement .
Section 7.2(a)(ii) of the Purchase Agreement shall be amended and
restated to read as follows:
"(ii) a breach of any representation or warranty contained in
Article II of this Agreement or in Section 5 of the Representations
Agreement (the "Representations Agreement") dated as of December 17,
1999, by and among Seller, Purchaser, Subsidiary OLP and the General
Partner,"
1.1 SECTION Amendment to Section 7.2(a)(iii) of the Purchase Agreement .
Section 7.2(a)(iii) of the Purchase Agreement shall be amended and
restated to read as follows:
"(iii) a breach of any agreement or covenant of Seller
set forth in this Agreement or in the Representations
Agreement,"
1.1 SECTION Amendment to Section 7.2(a) of the Purchase Agreement .
The last sentence in Section 7.2(a) of the Purchase Agreement shall be
amended and restated to read as follows:
"Purchaser agrees that, except as provided in Section 7.5, the
indemnification provided in this Section 7.2 is the exclusive remedy
for money damages for a breach by Seller of any representation or
warranty contained in Article II of this Agreement or in Section 5 of
the Representations Agreement, any covenant contained in Article IV of
this Agreement and Section 5 of the Representations Agreement and with
respect to any of the transactions contemplated in this Agreement or in
the Representations Agreement."
1.1 SECTION Amendment to Section 7.2(b) of the Purchase Agreement .
The preamble of Section 7.2(b) of the Purchase Agreement shall be
amended and restated to read as follows:
"(b) Seller's obligations to indemnify Purchaser Indemnitees
pursuant to clause (ii) of Section 7.2(a) hereof with respect to a
breach of a representation or warranty contained in this Agreement and
in the Representations Agreement are subject to the following
limitations:"
1.1 SECTION Amendment to Section 7.2(b)(i) of the Purchase Agreement .
The first clause of Section 7.2(b)(i) of the Purchase Agreement shall
be amended and restated to read as follows:
"(i) Except with respect to a breach of the representations
and warranties set forth in Sections 2.2, 2.4, 2.8, 2.12 and 2.20 of
this Agreement, Sections 5(d)(i), 5(d)(iv), 5(d)(v) and 5(d)(vii) of
the Representations Agreement and any claim based on fraud."
1.1 SECTION Amendment to Section 7.3(a)(ii) of the Purchase Agreement .
Section 7.3(a)(ii) of the Purchase Agreement shall be amended and
restated to read as follows:
"(ii) a breach of any representation or warranty
contained in Article III of this Agreement or Section 1 of the Representations
Agreement,"
1.1 SECTION Amendment to Section 7.3(a)(iv) of the Purchase Agreement .
Section 7.3(a)(iv) of the Purchase Agreement shall be amended and
restated to read as follows:
"(ii) a breach of any agreement or covenant of Purchaser in
this Agreement or in the Representations Agreement."
1.1 SECTION Amendment to Section 7.3(a) of the Purchase Agreement .
The last sentence of Section 7.3(a) of the Purchase Agreement shall be
amended and restated to read as follows:
"Seller agrees that the indemnification provided in this
Section 7.3 is the exclusive remedy for money damages for a breach by
Purchaser, the Subsidiary OLP or the General Partner of any
representation or warranty contained in Article III of this Agreement
and Section 1 of the Representations Agreement, any covenant contained
in Article IV of this Agreement and Section 3 of the Representations
Agreement and with respect to any transactions contemplated in this
Agreement and in the Representations Agreement."
1.1 SECTION Amendment to the Preamble of Section 7.3(b) of the Purchase
Agreement .
The preamble of Section 7.3(b) of the Purchase Agreement shall be
amended and restated to read as follows:
"(b) Purchaser's obligations to indemnify Seller Indemnitees
pursuant to clause (ii) of Section 7.3(a) hereof with respect to a
breach of a representation or warranty contained in this Agreement or
in the Representations Agreement are subject to the following
limitations:"
1.1 SECTION Amendment to Section 7.3(b)(i) of the Purchase Agreement .
The first clause of Section 7.3(b)(i) of the Purchase Agreement shall
be amended and restated to read as follows:
"(i) Except with respect to a breach of the representations
and warranties set forth in Section 3.9 of this Agreement, Sections
1(c), 1(j) and 1(m) of the Representations Agreement and any claim
based on fraud,"
1.1 SECTION Amendment to Section 9.3 of the Purchase Agreement .
The first sentence of Section 9.3 of the Purchase Agreement shall be
amended and restated to read as follows:
"This Agreement and the Representations Agreement dated as of
the Closing Date constitute the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersede all prior
agreements, understandings, negotiations and discussions, whether oral
or written, of the parties, and there are no warranties,
representations or other agreements among the parties in connection
with the subject matter hereof except as set forth specifically herein
or contemplated by this Agreement or the Representations Agreement."
1.1 SECTION Amendment to Exhibit A to the Purchase Agreement .
The first bullet point under the section of Exhibit A to the Purchase
Agreement entitled "Other Features- Material Event" shall be amended and
restated as follows:
"o if the closing price for Common Units (on the New York Stock
Exchange) is below $7.50, as appropriately adjusted for unit splits,
combinations, etc., for 10 consecutive trading days;"
ARTICLE
1 GENERAL PROVISIONS
1.1 SECTION Full Force and Effect .
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.
1.1 SECTION Other Provisions .
Article IX of the Purchase Agreement shall apply to this Amendment and
be incorporated herein with the same force and effect as if its provisions were
reprinted as part of this Amendment.
EXECUTED as of the date first written above.
NYC:71920.3
WILLIAMS NATURAL GAS LIQUIDS, INC.
By:
Name:
Title:
FERRELLGAS PARTNERS, L.P.
By: Ferrellgas Inc., its general partner
By:
Name:
Title:
FERRELLGAS, L.P.
By: Ferrellgas, Inc., its general partner
By:
Name:
Title: