EXHIBIT 10.2 (c)
FIRST AMENDMENT TO GUARANTY
THIS FIRST AMENDMENT TO GUARANTY (this "First Amendment") is entered
into effective as of January 31, 2002 by and between ATMOS ENERGY MARKETING,
LLC, a Delaware limited liability company ("Guarantor") and FORTIS CAPITAL
CORP., a Connecticut corporation ("Agent"), as agent for the ratable benefit of
the Banks (as hereinafter defined).
WITNESSETH:
WHEREAS, pursuant to that certain Credit Agreement (as amended from
time to time, the "Credit Agreement"), dated as of December 1, 2001, between
XXXXXXXX MARKETING, L.L.C., a Delaware limited liability company (the
"Borrower"), Agent (Agent, in its capacity as a Bank, along with any other bank
which has or may become a Bank pursuant to the terms of the Credit Agreement
referred to collectively as the "Banks"), the Banks agreed, upon the conditions
and in accordance with the provisions thereof, to extend to the Borrower an
uncommitted discretionary and demand line of credit facility;
WHEREAS, in connection with the execution of the Credit Agreement,
Guarantor executed and delivered to and in favor of Agent, for the ratable
benefit of the Banks, a Guaranty guaranteeing the prompt payment to Banks, their
affiliates, successors and assigns, of all Obligations; and
WHEREAS, the parties hereto desire to enter into this First Amendment
to amend the Guaranty as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, Agent and Guarantor agree as follows:
1. Paragraph 8(b), which states "as soon as available, but not later
than 45 days after the end of each month, the Guarantor prepared financial
statements for the Guarantor in form acceptable to Banks," is deleted in its
entirety.
2. Renewal; Continued Effect. Except as set forth above, the Guaranty
shall continue in full force and effect in accordance with its terms.
3. Representations. To induce Agent to enter into this First Amendment,
Guarantor ratifies and confirms each representation and warranty set forth in
the Guaranty (as amended hereby) as if such representations and warranties were
made on even date herewith, and Guarantor is fully authorized to enter into this
First Amendment.
4. Conditions Precedent. As a condition to Agent entering into this
First Amendment, Agent must have received executed originals of each of the
following documents and instruments, in form and substance satisfactory to
Agent:
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(a) this First Amendment, duly executed by Guarantor; and
(d) such other documents or certificates as Agent may reasonably
request.
5. Miscellaneous.
(a) Severability. In case any of the provisions of this First 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 First 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 Guaranty.
(c) Execution in Counterparts. This First 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 First Amendment by
signing one or more counterparts.
(d) Governing Law. This First Amendment shall be construed in
accordance with and governed by the laws of the State of New York (without
reference to principles of conflicts of laws), provided, however, that Agent
shall retain all rights under federal law.
(e) Rights of Third Parties. Except as set forth herein, all provisions
herein are imposed solely and exclusively for the benefit of Guarantor and
Agent, for the ratable benefit of the Banks, 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
agreement or any of the other Loan Documents.
(f) COMPLETE AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER WRITTEN
AGREEMENTS ENTERED INTO AMONG THE PARTIES REPRESENT THE FINAL AGREEMENT AMONG
THE PARTIES CONCERNING THE SUBJECT MATTER HEREOF 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.
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EXECUTION PAGES FOLLOW]
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed and delivered by the proper and duly authorized officers as of the
day and year first above written.
ATMOS ENERGY MARKETING, LLC
a Delaware limited liability company
as Guarantor
By: /s/ XXXXXX X. XXXX
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
FORTIS CAPITAL CORP.,
a Connecticut corporation,
as Agent
By: /s/ XXXXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ XXXXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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