EXHIBIT 10.8(g)
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into effective as of December 7, 2000, among XXXXXXXX MARKETING, L.L.C., a
Delaware limited liability company (the "Borrower"), BANK OF AMERICA, N. A.
("Bank of America"), as a Bank, as an Issuing Bank, and as Agent for the Banks,
and Xxxxxxxx Marketing, Inc., Atmos Energy Marketing LLC, X. X. Xxxxxxxx and
Xxxxx Xxxxx (collectively the "Guarantors").
WHEREAS, Borrower and Banks entered into that certain Credit Agreement,
dated to be effective as of August 9, 2000, as amended by that certain First
Amendment to Credit Agreement and Guaranty of Atmos Energy Marketing, LLC dated
as of September 29, 2000, and that certain Second Amendment to Credit Agreement
dated as of November 3, 2000 (as amended the "Credit Agreement"); and
WHEREAS, the Obligations (as defined in the Credit Agreement) were
guaranteed by the Guarantors pursuant to a Guaranty Agreement executed by each
of the Guarantors, in favor of the Banks, dated as of August 9, 2000 (the
"Guaranty Agreements"); and
WHEREAS, the Obligations are secured by security interests in the
Collateral (as defined in the Credit Agreement) granted to Bank pursuant to the
Security Agreements (as defined in the Credit Agreement) and pursuant to the
Nations Funds Security Agreement (as defined in the Credit Agreement), each
executed by Borrower (collectively, the "Security Agreements"); and
WHEREAS, the parties hereto desire to amend the Credit Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, Borrower, Bank of America and the Guarantors agree as follows:
1. The definition of "Borrowing Base Sub-Cap" set forth in Section 1.01
of the Credit Agreement, Certain Defined Terms, is deleted in its entirety and
replaced with the following:
"Borrowing Base Sub-Cap" means, initially, an amount equal to
$50,000,000.00; provided, however, Borrower may elect from time to time
any of $50,000,000.00, $60,000,000.00, $70,000,000.00, $75,000,000.00,
$80,000,000.00, $90,000,000.00, $95,000,000.00 or $100,000,000.00, as
the Borrowing Base Sub-cap provided that Borrower's Net Working Capital
and Tangible Net Worth at the time of election are greater than, or
equal to, the amounts specified below:
(a) If Borrower elects $100,000,000.00,
Borrower's Net Working Capital must be at
least $20,000,000.00 and Tangible Net Worth
must be at least $21,000,000.00; or
(b) If Borrower elects $95,000,000.00,
Borrower's Net Working Capital must be at
least $19,000,000.00 and Tangible Net Worth
must be at least $20,000,000.00; or
(c) If Borrower elects $90,000,000.00,
Borrower's Net Working Capital must be at
least $18,000,000.00 and Tangible Net Worth
must be at least $19,000,000.00; or
(d) If Borrower elects $80,000,000.00,
Borrower's Net Working Capital must be at
least $16,000,000.00 and Tangible Net Worth
must be at least $17,000,000.00; or
(e) If Borrower elects $75,000,000.00,
Borrower's Net Working Capital must be at
least $15,000,000.00 and Tangible Net Worth
must be at least $16,000,000.00; or
(f) If Borrower elects $70,000,000.00,
Borrower's Net Working Capital must be at
least $14,000,000.00 and Tangible Net Worth
must be at least $15,000,000.00; or
(g) If Borrower elects $60,000,000.00,
Borrower's Net Working Capital must be at
least $12,000,000.00 and Tangible Net Worth
must be at least $13,000,000.00; or
(h) If Borrower elects $50,000,000.00,
Borrower's Net Working Capital must be at
least $10,000,000.00 and Tangible Net Worth
must be at least $11,000,000.00.
Borrower shall elect which Borrowing Base Sub-Cap is in effect
from time to time by delivering to Agent a written notice of such
election, together with a Compliance Certificate in the form of Exhibit
C which is attached hereto but modified to include a certification that
upon the effectiveness of such election, no Default or Event of Default
will exist. NOTWITHSTANDING THE FOREGOING, UNTIL THE EARLIER TO OCCUR
OF JANUARY 31, 2001, OR SUCH TIME AS ADDITIONAL BANKS BECOME PARTIES TO
THIS AGREEMENT WITH A BORROWING BASE LINE PORTION OF AT LEAST
25,000,000.00, THE BORROWING BASE SUB-CAP CANNOT EXCEED $95,000,000.00,
AND PROVIDED FURTHER THAT NOTWITHSTANDING THE FOREGOING, IF NO BANKS
ARE ADDED WITH A BORROWING BASE LINE PORTION OF AT LEAST 25,000,000.00
BY JANUARY 31, 2001, THEN FROM AND AFTER JANUARY 31, 2001, UNTIL SUCH
TIME AS ADDITIONAL BANKS BECOME PARTIES TO THIS AGREEMENT WITH A
BORROWING BASE LINE PORTION OF AT LEAST 25,000,000.00, THE BORROWING
BASE SUB-CAP CANNOT EXCEED $75,000,000.00. FURTHERMORE, UNTIL SUCH TIME
AS ADDITIONAL BANKS BECOME PARTIES TO THIS AGREEMENT WITH A BORROWING
THIRD AMENDMENT TO CREDIT AGREEMENT - PAGE 2
BASE LINE PORTION OF AT LEAST 25,000,000.00, UNDER NO CIRCUMSTANCES
SHALL THE EFFECTIVE AMOUNT OF ALL OUTSTANDING REVOLVING LOANS, PLUS THE
EFFECTIVE AMOUNT OF ALL L/C OBLIGATIONS UNDER THE BORROWING BASE LINE
EXCEED $75,000,000.00 UNLESS THE FULL AMOUNT AVAILABLE UNDER THE
COLLATERALIZED L/C LINE HAS BEEN FULLY UTILIZED.
2. The definition of "Dollar Advance Cap" set forth in Section 1.01 of
the Credit Agreement, Certain Defined Terms, is deleted in its entirety and
replaced with the following:
"Dollar Advance Cap" means a cap upon Revolving Loans under
the Borrowing Base Line with the following limits:
(a) $40,000,000.00 at such times as the Borrowing Base
Sub-Cap is $100,000,000.00; and
(b) $38,000,000.00 at such times as the Borrowing Base
Sub-Cap is $95,000,000.00; and
(c) $36,000,000.00 at such times as the Borrowing Base
Sub-Cap is $90,000,000.00; and
(d) $32,000,000.00 at such times as the Borrowing Base
Sub-Cap is $80,000,000.00; and
(e) $30,000,000.00 at such times as the Borrowing Base
Sub-Cap is $75,000,000.00; and
(f) $28,000,000.00 at such times as the Borrowing Base
Sub-Cap is $70,000,000.00; and
(g) $24,000,000.00 at such times as the Borrowing Base
Sub-Cap is $60,000,000.00; and
(h) $20,000,000.00 at such times as the Borrowing Base
Sub-Cap is $50,000,000.00.
3. Renewal; Continued Effect. Except as set forth above, the Credit
Agreement shall continue in full force and effect.
4. Representations. To induce the Banks to enter into this Amendment,
Borrower ratifies and confirms each representation and warranty set forth in the
Credit Agreement as if such representations and warranties were made on even
date herewith, and further represents and warrants (a) that no material adverse
change has occurred in the financial condition or business prospects of Borrower
since the date of the last financial statements delivered to the Banks, (b) that
no Event of Default exists and no event or condition exists or has occurred
which with
THIRD AMENDMENT TO CREDIT AGREEMENT - PAGE 3
passage of time, or notice, or both, would become an Event of Default (a
"Default"), and (c) that Borrower is fully authorized to enter into this
Amendment. BORROWER ACKNOWLEDGES THAT THE CREDIT AGREEMENT PROVIDES FOR A CREDIT
FACILITY THAT IS COMPLETELY OPTIONAL ON THE PART OF THE BANK AND THAT THE BANK
HAS ABSOLUTELY NO DUTY OR OBLIGATION TO ADVANCE ANY REVOLVING LOAN OR TO ISSUE
ANY LETTER OF CREDIT. BORROWER REPRESENTS AND WARRANTS TO BANK THAT BORROWER IS
AWARE OF THE RISKS ASSOCIATED WITH CONDUCTING BUSINESS UTILIZING AN UNCOMMITTED
FACILITY.
5. Conditions Precedent. As a condition to Bank of America entering
into this Amendment, no Default or Event of Default shall exist on the date
hereof, and Bank of America must have received executed originals of each of the
following documents and instruments, in form and substance satisfactory to Bank
of America:
(a) this Amendment, duly executed by Borrower; and
(b) such other documents or certificates as Bank of
America may reasonably request.
6. Ratification of Security Agreements. Borrower ratifies and confirms
the Security Agreements, and acknowledges and agrees that references to the
Credit Agreement in such Security Agreements are hereby amended to refer to the
Credit Agreement as amended by this Amendment and that in all other respects
such Security Agreements shall continue in full force and effect, and that
pursuant to such Security Agreements Borrower has granted and hereby confirms
and grants to Bank a continuing first and prior security interest in the
Collateral to secure payment and performance of all Obligations.
7. Ratification of Note. Borrower ratifies and confirms the Promissory
Note dated as of November 3, 2000, delivered by Borrower to Bank of America and
acknowledges and agrees that such note shall continue in full force and effect
and shall be a "Note" as defined in the Credit Agreement.
8. Miscellaneous.
(a) Severability. In case any of the provisions of this
Amendment shall for any reason be held to be invalid, illegal, or unenforceable,
such invalidity, illegality, or unenforceability shall not affect any other
provision hereof, and this Amendment shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
(b) Capitalized Terms. Except as otherwise defined herein,
capitalized terms shall have the meanings specified in the Credit Agreement.
(c) Execution in Counterparts. This Amendment may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument, and any party hereto may execute this Amendment by
signing one or more counterparts.
THIRD AMENDMENT TO CREDIT AGREEMENT - PAGE 4
(d) Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of California (without
reference to principles of conflicts of laws), provided, however, that Bank
shall retain all rights under federal law.
(e) Rights of Third Parties. All provisions herein are imposed
solely and exclusively for the benefit of Borrower and Bank, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with this Amendment or any of the other Loan Documents.
(f) COMPLETE AGREEMENT. THIS WRITTEN AMENDMENT AND THE OTHER
WRITTEN AGREEMENTS ENTERED INTO AMONG THE PARTIES REPRESENT THE FINAL AGREEMENT
AMONG 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 AMONG THE PARTIES.
THIRD AMENDMENT TO CREDIT AGREEMENT - PAGE 5
Executed as of the day and year first above written
BORROWER:
XXXXXXXX MARKETING, L.L.C.,
a Delaware limited liability company
By: /s/ XXXXX X. DRILLING
---------------------------
Name: Xxxxx X. Drilling
---------------------------
Title: Sr. Vice President
---------------------------
BANKS:
BANK OF AMERICA, N. A.,
as Agent
By: /s/ XXXXX X. XXXXXX
---------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: Vice President
---------------------------
BANK OF AMERICA, N. A.,
as a Bank and Issuing Bank
By: /s/ XXXXX X. XXXXXX
---------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: Vice President
---------------------------
GUARANTORS:
XXXXXXXX MARKETING, INC.
By: /s/ XXXXX X. DRILLING
----------------------------
Name: Xxxxx X. Drilling
----------------------------
Title: Sr. Vice President
----------------------------
ATMOS ENERGY MARKETING, LLC
By: /s/ XXXXXX X. XXXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------
Title: Vice President and Treasurer
----------------------------
/s/ X. X. XXXXXXXX
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X. X. XXXXXXXX
/s/ XXXXX XXXXX
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XXXXX XXXXX
