SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
This Second Amendment to the Registration Rights Agreement (the "Second
Amendment") is entered into effective as of April 6, 2001, by and between
Ferrellgas Partners, L.P., a Delaware limited partnership (the "Issuer"), and
The Xxxxxxxx Companies, Inc., a Delaware corporation ("Xxxxxxxx") and successor
in interest to Xxxxxxxx Natural Gas Liquids, Inc., a Delaware corporation. This
Second Amendment amends the Registration Rights Agreement dated as of December
17, 1999, as amended (the "Registration Rights Agreement"), by and between the
Issuer and Xxxxxxxx Natural Gas Liquids, Inc. Unless otherwise defined herein,
all capitalized terms used herein shall have the meaning given to them in the
Registration Rights Agreement.
RECITALS:
WHEREAS, the Registration Rights Agreement was executed in connection with
the issuance of Registrable Units by the Issuer to Xxxxxxxx Natural Gas Liquids,
Inc.; and
WHEREAS, Xxxxxxxx is the holder of all the Registrable Units issued by the
Issuer; and
WHEREAS, pursuant to Section 9(d) of the Registration Rights Agreement, the
parties hereto desire to amend the Registration Rights Agreement to reflect
amendments incorporated into the Third Amended and Restated Agreement of Limited
Partnership of the Issuer, which sets forth the rights, terms and obligations of
the Registrable Units and the holders thereof;
NOW, THEREFORE, effective as of the date first set forth above, the
Registration Rights Agreement is amended as follows:
ARTICLE 1
AMENDMENTS
1.1 Clause (iv) of the definition of "Registrable Units" in Section 1 of
the Registration Rights Agreement is hereby amended by deleting the phrase "for
purposes of the Partnership Agreement."
1.2 The first sentence of Section 2(a)(ii) of the Registration Rights
Agreement is hereby amended by replacing the phrase "November 3, 2001" with the
phrase "October 2, 2005."
1.3 The second sentence of Section 3(b) of the Registration Rights
Agreement is hereby amended by replacing the phrase "February 1, 2002" with the
phrase "December 31, 2005."
1.4 The first clause of Section 6(a) of the Registration Rights Agreement
until the definition of "Participant" is hereby amended and restated in its
entirety to be as follows:
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The Issuer agrees to indemnify and hold harmless each Holder of
Registrable Units and any lender or lenders to whom the Registrable
Units are pledged in connection with a loan to enable, among other
things, that Holder to purchase those Registrable Units, or any
refinancings thereof (provided that, for the avoidance of doubt, the
lenders shall include The Xxxxxxxx Companies, Inc. to the extent that
entity or an affiliate thereof succeeds to the rights of the lenders)
and the respective officers, directors, employees and agents of such
Person, and each Person, if any, who controls any such Person within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (each, a "Participant")
1.5 Two new sentences are hereby added to the end of Section 9(a) of the
Registration Rights Agreement as follows:
If the Issuer or Ferrellgas, L.P. (i) fails to make any payment of more
than $100,000 when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any of
its outstanding indebtedness of more than $10 million, and such failure
continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure, (ii)
fails to perform or observe any other condition or covenant, or any
other event shall occur or condition exist, under any agreement or
instrument relating to any such indebtedness, and such failure
continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure if the
effect of such failure, event or condition is to cause, or to permit
the holder or holders of such indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause such indebtedness to be declared to be due and payable prior to
its stated maturity or to cause such indebtedness to be prepaid,
purchased or redeemed by the Issuer or Ferrellgas, L.P., (iii) ceases
or fails to be solvent, or generally fails to pay, or admits in writing
its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or
otherwise, (iv) voluntarily ceases to conduct its business in the
ordinary course, (v) commences any Insolvency Proceeding with respect
to itself; (vi) takes any action to effectuate or authorize any of the
foregoing items specified in clauses (iii) through (v), (vii) has any
involuntary Insolvency Proceeding commenced or filed against it, or any
writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of any of its properties,
and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process
shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (viii) admits the material allegations of
a petition against it in any Insolvency Proceeding, or an order for
relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (ix) acquiesces in the appointment of a
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receiver, trustee, custodian, conservator, liquidator, mortgagee in
possession (or agent therefor), or other similar person or entity for
itself or a substantial portion of its property or business, then the
Issuer agrees that upon the receipt of written notice from the Holders
of at least 25% in aggregate number of Outstanding Registrable Units,
the Issuer shall commence the preparation of an Initial Shelf
Registration as detailed under Section 2(a)(i) above but shall not be
required to file such Initial Shelf Registration until required under
the terms of Section 2(a)(i). For purposes of this Section 9(a)
"Insolvency Proceeding" means (i) any case, action or proceeding before
any court or other governmental authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (ii) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors,
or other similar arrangement in respect of an entity's creditors
generally or any substantial portion of an entity's creditors;
undertaken under U.S. Federal, state or foreign law, including the
United States bankruptcy code.
1.6 Section 9(k) is hereby amended and restated in its entirety to be as
follows:
Whenever the consent or approval of Holders of a specified percentage
of Registrable Units is required hereunder, Registrable Units held by
the Issuer shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
1.7 Section 9(l) is hereby amended and restated in its entirety to be as
follows:
Holders of Registrable Units and each Participant are intended third
party beneficiaries of this Agreement and this Agreement may be
enforced by such Person.
1.8 The second notification address of Section 9(e)(1) of the Registration
Rights Agreement is hereby amended by deleting in its entirety the address
"Xxxxxxx and Xxxxx, L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxx, Telecopy: (000) 000-0000" and replacing it with the
address "Xxxxxx & Xxxxxx, L.L.P., 000 Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, Telecopy: (000) 000-0000."
1.9 The second notification address of Section 9(e)(2) of the Registration
Rights Agreement is hereby amended by deleting in its entirety the address
"Xxxxxxxxx & Xxxxxxxxx LLP, South Tower Penzoil Place, 000 Xxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxx, Telecopy: (713)
222-3208" and replacing it with the address " Xxxxx, Xxxxx & Xxxxx, 000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxx,
Telecopy: (000) 000-0000."
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ARTICLE 2
GENERAL PROVISIONS
2.1 Except as expressly amended hereby, the Registration Rights Agreement
shall continue in full force and effect in accordance with the provisions
thereof on the date hereof.
2.2 Section 9 of the Registration Rights Agreement shall apply to this
Second Amendment and be incorporated herein with the same force and effect as if
those sections were reprinted as part of this Second Amendment, including to the
extent Section 9 was expressly amended herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
effective for all purposes as of the date first set forth above.
ISSUER:
FERRELLGAS PARTNERS, L.P.
By: Ferrellgas, Inc., its General Partner
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Senior Vice President
HOLDER OF ALL REGISTRABLE UNITS:
THE XXXXXXXX COMPANIES, INC.
By: /s/ X. X. Xxxxxxx By: /s/ Xxx X. Xxxxxxxxxx, his attorney in fact
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Name: X. X. Xxxxxxx
Title: Executive Vice President
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