EXHIBIT 10.2 (b)
GUARANTY OF
ATMOS ENERGY MARKETING, LLC
This Guaranty (this "Guaranty"), entered into and effective as of
December 1, 2001, is made by ATMOS ENERGY MARKETING, LLC, a Delaware limited
liability company ("Guarantor"), in favor of FORTIS CAPITAL CORP., A CONNECTICUT
CORPORATION ("Agent") as agent for the ratable benefit of the Banks (as
hereinafter defined).
WHEREAS, pursuant to that certain Credit Agreement (as amended from
time to time, the "Credit Agreement"), dated to be effective as of the date
hereof, between XXXXXXXX MARKETING, L.L.C., a Delaware limited liability company
(the "Borrower"), and 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 have agreed that,
upon the conditions and in accordance with the provisions thereof, the Banks
will extend to the Borrower an uncommitted discretionary and demand line of
credit facility in an amount outstanding at any one time of up to an aggregate
of $125,000,000.00; and
WHEREAS, Agent, in its capacity as a Bank has further agreed that, upon
the conditions and in accordance with the provisions of the Credit Agreement,
Agent will extend to the Borrower an uncommitted, discretionary demand line for
overdraft advances; and
WHEREAS, BNP Paribas, a bank organized under the laws of France ("BNP
Paribas") , in its capacity as a Bank has further agreed that, upon the
conditions and in accordance with the provisions of the Credit Agreement, may
enter into Swap Contracts with the Borrower; and
WHEREAS, it is a condition precedent to the availability of such
extensions of credit that the Guarantor shall have executed and delivered this
Guaranty.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees as follows:
The Guarantor unconditionally guarantees the prompt payment to Banks,
their affiliates and their successors and assigns, of all Obligations (as
defined in the Credit Agreement). Nothing to the contrary contained herein or in
any other Loan Document, Guarantor's liability under this Guaranty is limited to
payment of the Guaranteed Payment Amount (as defined below).
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"Guaranteed Payment Amount" as used in this Guaranty shall mean the sum
of the following:
(1) an amount equal to one hundred percent (100%) of the
Obligations, plus
(2) interest (including interest that accrues during any
bankruptcy proceeding of Borrower), which (A) shall
accrue on any unpaid portion of the amount described
in clause (1) of this definition from the date demand
is made therefor by Agent (the "Demand Date") until
such amount is paid, (B) shall be calculated at the
interest rate presently in effect pursuant to the
terms of the Credit Agreement, plus
(3) all reasonable attorney's fees and other collection
costs incurred by Agent and Banks in connection with
the enforcement of and/or collection under this
Guaranty, including any bankruptcy proceeding
affecting Guarantor.
Guarantor acknowledges and agrees that Agent has no duty to foreclose
upon any collateral securing any of the Obligations, but, if Agent elects to
foreclose, Agent may pursue collection under this Guaranty prior to,
contemporaneously with, or after any foreclosure on such collateral.
At the time Guarantor pays any sum which may become due the Banks under
the terms of this Guaranty, written notice of such payment shall be delivered to
the Banks by Guarantor, and in the absence of such notice, any sum received by
the Banks on account of any of the Obligations shall be conclusively deemed paid
by the Borrower. All sums paid the Banks by Guarantor may be applied by the
Banks at their discretion upon any of the Obligations.
1. The obligations of the Guarantor hereunder shall be payable and
performable at Agent's Payment Office at 000 Xxxxxxxx Xxxxx, 000 Xxxxx 0000,
Xxxxxx, XX 00000, or any other office designated by the Agent.
2. This Guaranty is an absolute, complete and continuing one, and no
notice of the Obligations or any rearrangement, modification or waiver thereof
needs to be given to the Guarantor and in any such event the Guarantor will
remain fully bound hereunder. The Guarantor hereby expressly waives presentment,
demand, protest, and notice of protest and dishonor with respect to the
Obligations, and also notice of acceptance of this Guaranty, acceptance on the
part of Agent being conclusively presumed by its request for this Guaranty and
delivery of same to it.
3. The Guarantor authorizes Agent, without notice or demand and without
affecting its liability hereunder, to take and hold security from third Persons
for the
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payment of the Obligations, and exchange, enforce, waive and release any such
security; and to apply such security and direct the order or manner of sale
thereof as the Banks in their discretion may determine; and to obtain a guaranty
of the Obligations from any one or more other Persons whomsoever and at any time
or times to enforce, waive, rearrange, modify, limit or release such other
Persons from their obligations under such guaranties.
4. The Guarantor waives any right to require Agent to (a) proceed against
the Borrower, (b) proceed against or exhaust any security held from the
Borrower, or (c) pursue any other remedy in Agent's power whatsoever, including,
without limitation, any right of Agent to pursue any remedy against any other
guarantor. The Guarantor waives any defense of the Borrower or any other
guarantor of the Obligations or any portion thereof, and shall remain liable
hereon regardless of whether the Borrower or any other guarantor be found not
liable thereon for any reason including, without limitation, bankruptcy,
insolvency, or corporate dissolution and even though the Obligations, or any
part thereof, may be rendered void or unenforceable or uncollectible as against
the Borrower or any other guarantor. This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment of any
portion of the Obligations by the Borrower is rescinded or must otherwise be
returned by Agent upon the insolvency, bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been made, and the
Guarantor will, thereupon, guarantee payment of such amount as to which refund
or restitution has been made, together with interest accruing thereon subsequent
to the date of refund or restitution at the applicable rate under the Credit
Agreement and reasonable collection costs and fees (including, without
limitation, reasonable attorney's fees) applicable thereon. The Guarantor shall
(i) not exercise any right of subrogation and (ii) waives any right to exercise
any remedy which Agent now has or may hereafter have against the Borrower and
any right to participate in any security now or hereafter held by Agent, so long
as the Guaranteed Payment Amount, or any portion thereof, shall remain
outstanding.
5. The Guarantor agrees that if the maturity of the Obligations is
accelerated for any reason, including, without limitation, by bankruptcy or
otherwise, such maturity shall also be deemed accelerated for the purpose of
this Guaranty without demand or notice to the Guarantor.
6. It is expressly agreed that the liability of the Guarantor for payment
of the Obligations shall be primary and not secondary.
7. To induce the Banks and Agent to enter into the Credit Agreement with
the Borrower, the Guarantor represents and warrants to Banks and Agent (which
representations and warranties will survive the delivery of this Guaranty) that:
(a) The execution and delivery by the Guarantor of this Guaranty and
the performance of obligations hereunder are within its power and do not (i)
contravene or conflict with any provision of law, (ii) contravene or conflict
with any indenture, instrument or other agreement to which the Guarantor is a
party or by which its property
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may be presently bound or encumbered, or (iii) result in or require the creation
or imposition of any Lien in, upon or against any of the respective property of
the Guarantor under any such indenture, instrument or other agreement.
(b) This Guaranty when duly executed and delivered, will be the legal,
valid and binding obligation of the Guarantor enforceable in accordance with its
terms (subject to any applicable debtor relief laws and general principles of
equity).
(c) No authorization, consent, approval, exemption, franchise, permit
or license of, or filing with, any governmental or public authority or any third
party is required to authorize, or is otherwise required in connection with the
valid execution and delivery by the Guarantor of this Guaranty which has not
been obtained.
(d) The Guarantor has duly and properly filed all United States Income
Tax returns and all other tax returns (or permissible extensions thereof) which
are required to be filed, and has paid all taxes prior to delinquency pursuant
to all returns or pursuant to any assessment received, except such taxes, if
any, as are being contested in good faith and as to which adequate provisions
and disclosures to Agent have been made.
(e) Except as previously disclosed to Agent in writing, to the
knowledge of the Guarantor, there is no litigation or other action pending
before any court, governmental instrumentality, regulatory authority or arbitral
body or threatened against or affecting the Guarantor which might reasonably be
expected to result in a material adverse change in the financial condition of
the Guarantor.
8. So long as any of the Obligations shall remain unpaid or
unsatisfied, or any Letter of Credit (as defined in the Credit Agreement) shall
remain outstanding, Guarantor covenants and agrees as follows:
(a) as soon as available, but not later than 120 days after the end of
each fiscal year, a copy of the audited financial statements to include a
balance sheet as at the end of such year for the Guarantor, with schedules and
the related statements of income or operations, members' capital and cash flows
for such year for the Guarantor, setting forth in each case in comparative form
the figures for the previous fiscal year, and accompanied by the opinion of a
nationally-recognized independent public accounting firm ("Independent Auditor")
which report shall state that such financial statements present fairly the
financial position for the periods indicated in conformity with GAAP applied on
a basis consistent with prior years. Such opinion shall not be qualified or
limited because of a restricted or limited examination by the Independent
Auditor of any material portion of the Guarantor's or any subsidiary's records;
and
(b) 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.
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9. In all instances herein, the singular shall be construed to include
the plural and the masculine to include the feminine. In the event more than one
party executes this Guaranty as a guarantor, then each party agrees to be
jointly and severally liable for the Obligations.
10. This Guaranty is and shall be in every particular available to the
successors and assigns of Banks and is and shall always be fully binding upon
the successors and assigns of the Guarantor.
11. The Guarantor consents to the execution and delivery by the Borrower
of the Credit Agreement and each of the other Loan Documents and the performance
by the Borrower of their obligations thereunder.
12. No failure to exercise nor any delay in exercising on the part of
Agent of any right, power or privilege hereunder or at law or in equity shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided are cumulative and not exclusive of any rights or remedies
provided by law or in equity.
13. THIS GUARANTY SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS) OF THE STATE OF NEW
YORK.
14. ANY SUIT TO ENFORCE ANY RIGHT HEREUNDER OR TO OBTAIN A DECLARATION OF
ANY RIGHT OR OBLIGATION HEREUNDER, MAY, AT THE SOLE OPTION OF THE BANKS, BE
BROUGHT (I) IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK, OR (II) IN ANY COURT OF COMPETENT
JURISDICTION WHERE JURISDICTION MAY BE HAD OVER GUARANTOR. THE GUARANTOR HEREBY
EXPRESSLY CONSENTS TO THE JURISDICTION OF THE COURTS OF NEW YORK FOR SUCH
PURPOSES.
15. If any clause or portion of this Guaranty shall be declared
unenforceable, invalid, or illegal, the remaining clauses and portions shall not
be affected thereby.
16. The Guarantor warrants, represents and acknowledges that it is not
relying on any representations or statements of Agent or any Bank, or any other
party concerning the financial condition of the Borrower, the likelihood that
the Guarantor will be required to pay or perform the Obligations or any other
representations or statements other than as expressly set forth herein, and all
other representations or agreements, if any, are merged into this Guaranty.
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17. All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and may be personally served or sent by
telex, telecopier, mail or the express mail service of the United States Postal
Service, Federal Express or other equivalent overnight or expedited delivery
service and shall be deemed to have been given upon receipt. For purposes
hereof, the address of the Guarantor shall be the address written under
Guarantor's name on the signature page hereof, the address of Agent shall be as
follows:
Fortis Capital Corp.
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and the addresses of the Banks shall be as follows:
Fortis Capital Corp.
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BNP Paribas
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may, by proper written notice hereunder to the other parties, change
the address to which notices shall thereafter be sent to it.
18. Unless otherwise defined, all capitalized terms used herein have the
meanings assigned to such terms in the Credit Agreement.
19. THIS WRITTEN AGREEMENT 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.
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Executed as of the date first written above.
GUARANTOR:
ATMOS ENERGY MARKETING, LLC
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Vice President and
General Counsel
Address of Guarantor:
1800 Three Lincoln Centre
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
[Xxxxxxxx - Guaranty]
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