exv10w35w1



 





Exhibit 10.35.1




FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT

AND CLOSING AGREEMENT




     This First Amendment to Purchase and Sale Agreement and Closing
Agreement (the “Amendment”) is dated as of this 1st day of June, 2004,
and is an amendment of that certain Purchase and Sale Agreement (the
“Agreement”), dated the 25th day of April, 2004, by and between TXU FUEL
COMPANY, a Texas corporation (“TXU”), and ENERGY TRANSFER PARTNERS, L.P.
(“Buyer”), a Delaware limited partnership. Any capitalized term used
herein but not otherwise defined herein shall have the meaning given to
such term in the Agreement. TXU and Buyer may be referred to in this
Amendment individually as a “Party,” and collectively as the “Parties.”



     For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the Parties, the Agreement is amended
as follows:



     Section 1.01. Amendment.



     (a) Paragraph 5.4(c)(v) of the Agreement is hereby deleted in its
entirety and replaced
with the following:



     (v) Severance Plan. Buyer agrees that, with respect to any
Transitioned Employee who executes the Agreement and Release, if it
terminates such Transitioned Employee following the ninetieth
(90th) day
of, and within the eighteen (18) month period after, such Transitioned
Employee’s Employment Effective Date for any reason other than cause (as
defined above), Buyer shall provide such Transitioned Employee with
severance benefits, in accordance with Schedule 5.4(c)(v).



     (b) Exhibit A to the Agreement is deleted in its entirety and replaced
with Exhibit A
attached to this Amendment.



     (c) Exhibit B-2 to the Agreement is deleted in its entirety and
replaced with Exhibit
B-2 attached to this Amendment.



     (d) Section 5.12 of the Agreement requires Buyer and TXU to supplement
or amend
the Schedules upon becoming aware of any fact, matter, circumstance or
event requiring that the
Schedules be supplemented or amended. The Schedules attached to this
Amendment have been
supplemented or amended by TXU since the execution of the Agreement,
and replace the
corresponding Schedules attached to the Agreement. The following
Schedules are attached:
2.2(b); 2.2(c); 2.3; 2.4; 2.1 l(a)(v); 3.6; 3.8; 3.9; 3.10; 3.16;
3.20; 5.4(c)(v); 6.1(g).



     (e) The following Paragraph 5(c)(vi) of the Agreement is hereby added:



     (vi) Appliance and Energy Conservation Programs. Buyer will continue
to administer outstanding appliance and energy conservation programs by
Transitioned Employees in accordance with a Schedule to be provided by
TXU. Buyer will deduct the payments in accordance with such Schedule and
remit such payment to TXU.



 









 





     Section 1.02. Adjustment to Effective Time.



     (a) Effective Time is defined in Section 2.6 of the Agreement as being
9:00 AM on
the Closing Date. Notwithstanding Section 2.6 of the Agreement, and
provided the Federal
Trade Commission does not take any action that would prevent Closing on
such date, then as of
11:01 pm Central Daylight Time on June 1, 2004: (i) Buyer agrees (assuming
TXU complies
with its Closing delivery obligations under Section 2.7(a) of the
Agreement), that the Conditions
to the Obligations of Buyer to close, as set forth in Section 6.1 of the
Agreement, have been
satisfied, (ii) TXU agrees (assuming Buyer complies with its Closing
delivery obligations under
Section 2.7(b) of the Agreement), that the Conditions to the Obligations
of TXU to close, as set
forth in Section 6.2 of the Agreement, have been satisfied, (iii) the
Closing will take place as of
11:01 pm Central Daylight Time on June 1, 2004, and (iv) the wire transfer
of the Purchase Price
will be initiated by Buyer immediately upon the opening of the Federal
Reserve Bank wire
transfer service on June 2, 2004. If such wire transfer of the Purchase
Price does not occur as set
forth in the proceeding sentence, Buyer will be in breach of its material
obligations under the
Agreement, and TXU will be entitled to all remedies available at law or in
equity.



     (b) The Preliminary Settlement Statement was prepared using a June 1,
2004
Effective Time. For purposes of the preparation of the Final Settlement
Statement and final
settlement between the Parties, all calculations required under Sections
2.10 (Revenues and
Expenses); 2.11 (Adjustments to Purchase Price) and 2.13 (Post-Closing
Adjustments) of the
Agreement will be made as if the Closing had occurred as of 9:00 am on
June 1, 2004 (it being
recognized that such time is being used for accounting purposes only).



     (c) In addition to the amounts on the Preliminary Settlement Statement,
Buyer will
pay to TXU at Closing, by wire transfer of immediately available funds, a
sum that is equal to
the interest on the Purchase Price for one day at the rate of 5% per annum
(this amount is
$68,500).



     (d) With respect to the Transition Services Agreement (Software Related
Services),
Transition Services Agreement (Engineering), Natural Gas Transportation
Agreement, Gas
Storage Contract (Bethel) and Gas Storage Contract (Bryson), the effective
date is hereby
amended to 11:01 PM Central Daylight Time on June 1, 2004; provided,
however, that for
accounting purposes hereunder, each agreement shall be determined as if
such agreement were
effective as of 9:00 AM Central Daylight Time on June 1,
2004.


     Section 1.03. Further Agreements Between the Parties.



     (a) Subsequent to the execution of the Agreement, TXU determined
that, in order to provide for consistency with respect to severance benefits
offered to employees of TXU affiliates under certain circumstances, it would be
necessary to modify the severance benefits available to Transitioned Employees
(as defined in the Agreement), under paragraph 5.4(c)(v) of the Agreement. TXU
agrees that, upon notification from Buyer, including reasonable backup
quantification, TXU will pay, or reimburse Buyer, for the difference, if any,
between severance benefits actually paid by Buyer to a Transitioned Employee
pursuant to paragraph 5.4(c)(v) and Schedule 5.4(c)(v), as amended by this
Amendment, and the severance benefits that would have



 









 




been paid by Buyer to
such Transitioned Employee pursuant to paragraph 5.4(c)(v) but for this
Amendment.




     (b) Additionally, the Parties have mutually identified certain
employees of TXU affiliates who will provide certain services to Buyer and to
whom Buyer may make offers of employment. These employees are identified in
Schedule 8.10 to the Transition Services and Access Agreement (Pipeline System
Services)(as amended) (the “Transition Agreement”) that is attached to this
Amendment as Exhibit B. The employees listed on Schedule 8.10 of the Transition
Agreement (as amended) will be considered to be Transitioned Employees (as
defined in the Agreement) for all purposes of the Agreement, including the
employment terms described in Section 5.4 of the Agreement as amended by this
Amendment.



     Section 1.04. Entire Agreement. Except as herein expressly modified,
changed and amended, all of the terms, provisions, covenants and conditions
in the Agreement remain in full force and effect.



     Section 1.05. Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document. It shall not be
necessary for Buyer and TXU to sign the same counterpart. Buyer or TXU may
execute this Agreement by signature transmitted via facsimile, to be followed
by original signatures delivered to the other party via overnight delivery
service.



     IN WITNESS WHEREOF, TXU and Buyer have caused this Amendment to be
executed, as of the day and year first written.



	 	 	 	 	 	 	 	 	 
	 	 	TXU FUEL COMPANY
	 	 	a Texas corporation
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	-s- Kirk R. Oliver
	 	 	 	 	

	 	 	Name:	 	Kirk R. Oliver
	 	 	Title:	 	Treasurer
	 
	 	 	 	 	 	 	 	 
	 	 	ENERGY TRANSFER PARTNERS. L.P
	 	 	a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	U.S. Propane, L.P.,
	 	 	 	 	 	 	Its General Partner
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	By:
	 	U.S. Propane, L.L.C.,
	

	 	 	 	 	 	 	 	Its General Partner
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	-s- Kelcy Warren
	 	 	 	 	 	 	

	 	 	 	 	Name:	 	Kelcy Warren
	 	 	 	 	Title:	 	CO - CEO