EXHIBIT 10.8(h)
FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into effective as of December 22, 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,
BNP PARIBAS, a bank organized under the laws of France ("BNP Paribas"), 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, that certain Second Amendment to Credit Agreement
dated as of November 3, 2000, and that certain Third Amendment to Credit
Agreement dated as of December 5, 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, on even date herewith Bank of America has assigned a portion
of its interest under the Credit Agreement to BNP Paribas; 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 "Adjusted Pro Rata Share" set forth in Section
1.01 of the Credit Agreement, Certain Defined Terms, is deleted in its entirety
and replaced with the following:
"Adjusted Pro Rata Share" means, as to any Bank at any
particular time, the percentage equivalent (expressed as a decimal,
rounded to the ninth decimal place) at such time of (a) an amount equal
to such Bank's Uncommitted Line Portion plus, in the case of Bank of
America, the amount of advances made in excess of the Borrowing Base
Advance Cap under the Overdraft Line or the Bankcard Line and/or to
fund Obligations of the Borrower under Swap Contracts or the Bankcard
Line, and/or to fund overdraft costs arising from of transfers of funds
made through the automated clearinghouse
system, and in the case of BNP Paribas, the amount of advances made in
excess of the Borrowing Base Advance Cap to fund Obligations of the
Borrower under Swap Contracts, divided by (b) the combined total of the
Uncommitted Line of all the Banks plus the amount of advances made in
excess of the Borrowing Base Advance Cap under the Overdraft Line and
the Bankcard Line and/or to fund the Obligations of the Borrower under
the Overdraft Line, the Bankcard Line and/or Swap Contracts, and/or to
fund overdraft costs arising from of transfers of funds made through
the automated clearinghouse system, if any.
2. A new definition, "Bankcard Advance", is added to Section 1.01 of
the Credit Agreement, Certain Defined Terms, to read as follows:
"Bankcard Advance" means any advance made hereunder by Bank of
America under the Bankcard Line.
3. A new definition, "Bankcard Line", is added to Section 1.01 of the
Credit Agreement, Certain Defined Terms, to read as follows:
"Bankcard Line" means that certain discretionary bankcard line
the Borrower maintains with Bank of America in an amount not to exceed
$50,000.00.
4. The definition of "Borrowing Base 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:
"Borrowing Base Advance Cap" means at any time an amount equal
to the least of:
(a) $125,000,000.00;
(b) the Borrowing Base Sub-Cap; or
(c) the sum of:
(i) the amount of Cash Collateral and other
liquid investments which are acceptable to the Banks
in their sole discretion and which are subject to a
first perfected security interest in favor of Agent,
as collateral agent for the Banks, and which have not
been used in determining availability for any other
advance (other than advances made under the Borrowing
Base Line) or Letter of Credit Issuance; plus
(ii) 90% of Borrower's equity in Banc of
America Futures Incorporated accounts, to the extent
such equity is not being used in determining
availability for any other advance (other than
advances made under the Borrowing Base Line) or
Letter of Credit Issuance; plus
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 2
(iii) 90% of Borrower's equity in BNP
Paribas Commodity Futures, Inc. accounts from and
after the date that a tri-party agreement with
respect to such accounts is entered into among
Borrower, Agent and BNP Paribas Commodity Futures,
Inc., to the extent such equity is not being used in
determining availability for any other advance (other
than advances made under the Borrowing Base Line) or
Letter of Credit Issuance; plus
(iv) 90% of the amount of Tier I Accounts
which are not being used in determining availability
for any other advance (other than advances made under
the Borrowing Base Line) or Letter of Credit
Issuance, net of deductions, offsets and
counterclaims; plus
(v) 85% of the amount of Tier II Accounts
and which are not being used in determining
availability for any other advance (other than
advances made under the Borrowing Base Line) or
Letter of Credit Issuance, net of deductions, offsets
and counterclaims; plus
(vi) 85% of the amount of Tier I Unbilled
Accounts which are not being used in determining
availability for any other advance (other than
advances made under the Borrowing Base Line) or
Letter of Credit Issuance; plus
(vii) 80% of the amount of Tier II Unbilled
Accounts which are not being used in determining
availability for any other advance (other than
advances made under the Borrowing Base Line) or
Letter of Credit Issuance; plus
(viii) 80% of the amount of Eligible
Inventory which are not being used in determining
availability for any other advance (other than
advances made under the Borrowing Base Line) or
Letter of Credit Issuance; plus
(ix) 80% of the amount of Eligible Exchange
Receivables which are not being used in determining
availability for any other advance (other than
advances made under the Borrowing Base Line) or
Letter of Credit Issuance; plus
(x) 80% of the amount of Undelivered Product
Value; less
(xi) the amounts which would be subject to a
so-called "First Purchaser Lien" as defined in Texas
Bus. & Com. Code Section 9.319, comparable laws of
the states of Oklahoma, Kansas, Wyoming or New
Mexico, or any other comparable law, unless a Letter
of Credit secures payment of all amounts subject to
such First Purchaser Lien; less
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 3
(xii) 125% of the xxxx-to-market amounts
owed to Bank of America and/or its Affiliates under
Swap Contracts;
(xiii) 125% of the xxxx-to-market amounts
owed to BNP Paribas and/or its Affiliates under Swap
Contracts; and
(xiv) 100% of Borrower's Unrealized
Xxxx-to-Market Losses as of the date of determination
of Borrowing Base Advance Cap.
In no event shall any amounts described in (b)(i) through
(b)(ix) above which may fall into more than one of such categories be
counted more than once when making the calculation under of this
definition.
5. 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, $100,000,000.00, $110,000,000.00,
$120,000,000.00 or $125,000,000.00 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 $125,000,000.00,
Borrower's Net Working Capital must be at
least $25,000,000.00 and Tangible Net Worth
must be at least $26,000,000.00; or
(b) If Borrower elects $120,000,000.00,
Borrower's Net Working Capital must be at
least $24,000,000.00 and Tangible Net Worth
must be at least $25,000,000.00; or
(c) If Borrower elects $110,000,000.00,
Borrower's Net Working Capital must be at
least $22,000,000.00 and Tangible Net Worth
must be at least $23,000,000.00; or
(d) 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
(e) 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
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 4
(f) 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
(g) 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
(h) 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
(i) 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
(j) 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
(k) 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.
6. 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) $50,000,000.00 at such times as the Borrowing Base
Sub-Cap is $125,000,000.00;
(b) $48,000,000.00 at such times as the Borrowing Base
Sub-Cap is $120,000,000.00;
(c) $44,000,000.00 at such times as the Borrowing Base
Sub-Cap is $110,000,000.00; and
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 5
(d) $40,000,000.00 at such times as the Borrowing Base
Sub-Cap is $100,000,000.00; and
(e) $38,000,000.00 at such times as the Borrowing Base
Sub-Cap is $95,000,000.00; and
(f) $36,000,000.00 at such times as the Borrowing Base
Sub-Cap is $90,000,000.00; and
(g) $32,000,000.00 at such times as the Borrowing Base
Sub-Cap is $80,000,000.00; and
(h) $30,000,000.00 at such times as the Borrowing Base
Sub-Cap is $75,000,000.00; and
(i) $28,000,000.00 at such times as the Borrowing Base
Sub-Cap is $70,000,000.00; and
(j) $24,000,000.00 at such times as the Borrowing Base
Sub-Cap is $60,000,000.00; and
(k) $20,000,000.00 at such times as the Borrowing Base
Sub-Cap is $50,000,000.00.
7. The definition of "Loan" set forth in Section 1.01 of the Credit
Agreement, Certain Defined Terms, is deleted in its entirety and replaced with
the following:
"Loan" means (a) any extension of credit by a Bank to the
Borrower under Article II or Article III in the form of a Revolving
Loan or an L/C Advance and (b) any Overdraft Advance or Bankcard
Advance.
8. The definition of "Obligations" set forth in Section 1.01 of the
Credit Agreement, Certain Defined Terms, is deleted in its entirety and replaced
with the following:
"Obligations" means all advances, debts,
liabilities, obligations, covenants and duties arising under any Loan
Document and any documents related to Bankcard transactions, owing by
the Borrower to any Bank, or any affiliate of any Bank, the Agent, or
any Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising, including without limitation
overdraft costs arising as a result of transfers of funds made through
the automated clearinghouse system and all obligations of the Borrower
under Revolving Loans, Letters of Credit, the Overdraft Line, the
Bankcard Line and any Swap Contracts.
9. The definition of "Swap Contract" set forth in Section 1.01 of the
Credit Agreement, Certain Defined Terms, is deleted in its entirety and replaced
with the following:
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 6
"Swap Contract" means any agreement entered into with Bank of
America or any Affiliate of Bank of America or BNP Paribas or any
Affiliate of BNP Paribas, whether or not in writing, relating to any
single transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index
swap or option, bond, note or xxxx option, interest rate option,
forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, currency option or any other
similar transaction (including any option to enter into any of the
foregoing) or any combination of the foregoing and, unless the context
clearly requires, any master agreement relating to or governing any or
all of the foregoing.
10. A definition of "Xxxx to Market" is added to Section 1.01 of the
Credit Agreement, Certain Defined Terms, as follows:
"Xxxx-to-Market" means, the method of accounting used to
account for derivative commodity instruments entered into for trading
purposes, in accordance with EITF 98-10, "Accounting for Energy Trading
and Risk Management Activities" and any future open obligation.
11. A definition of "Unrealized Xxxx-to-Market Losses" is added to
Section 1.01 of the Credit Agreement, Certain Defined Terms, as follows:
"Unrealized Xxxx-to-Market Losses" means, Borrower's
unrealized Xxxx-to-Market losses as of the day of determination of
Borrower's Borrowing Base Advance Cap to be reported on a Borrowing
Base Collateral Position Report, calculated net of unrealized
Xxxx-to-Market profits. If a loss, deduct the absolute value of that
loss, if a profit the value equals zero.
12. Subsection (c) of Section 2.01 of the Credit Agreement, Procedure
for Borrowing, is hereby deleted in its entirety and replaced with the
following:
(c) Advances Related to the Overdraft Line and Swap Contracts.
In addition to advances requested from time to time by the Borrower, in the
event that either (i) any amounts owing to Bank of America or BNP Paribas or any
of their Affiliates under the Overdraft Line or any Swap Contract are not paid
within two (2) Business Days after such obligation arises; or (ii) Bank of
America or any of its Affiliates have made an Overdraft Advance in the amount of
a drawing under a Letter of Credit which has not been timely reimbursed by the
Borrower in accordance with Section 3.03(b) of this Agreement and such amount
has not been paid by the Borrower within one (1) Business Day after such
obligation arises, then Bank of America shall notify the Agent of such failure
to pay and the Agent (without the necessity of any instructions or request from
the Borrower) shall make a Revolving Loan in accordance with the provisions of
Section 2.03 of this Agreement under the Borrowing Base Line for any amounts due
by the Borrower to Bank of America or BNP Paribas or any of their Affiliates
under the Overdraft Line, or any Swap Contract, and then apply the proceeds of
such advance to pay to Bank of America, or BNP Paribas or any of their
Affiliates (as the case may be) all amounts owed to such Person under the
Overdraft Line or such Swap Contract. Upon making any such Revolving Loan, the
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 7
Agent shall send notice of such Revolving Loan to the Borrower and the Banks.
Any such advance shall initially be a Base Rate Loan. In the event that any such
advance made to fund Bank of America or its Affiliates, other than an advance to
reimburse Bank of America for an Overdraft Advance made to fund a drawing under
Letters of Credit or to fund Reducing L/C Borrowings, results in an advance in
excess of the Borrowing Base Advance Cap, the Banks shall have no duty to fund
their pro rata share of any excess resulting from such advance made to repay
amounts owing to Bank of America or BNP Paribas or any of their Affiliates under
the Overdraft Line or any Swap Contract, but Bank of America or BNP Paribas or
any of their Affiliates', as the case may be, outstandings hereunder shall be
deemed to be increased by the amount of such excess. Notwithstanding the
foregoing, the Banks other than Bank of America shall have the duty, however, to
fund their pro rata share of all Overdraft Advances made to fund drawings under
Letters of Credit or to fund Reducing L/C Borrowings. In the event any advance
described above does exceed the Borrowing Base Advance Cap, the Borrower shall
pay to Agent, for the benefit of Bank of America or its Affiliate (as the case
may be), the amount of such excess, together with interest thereon, within one
(1) Business Day after the date of such advance and, notwithstanding anything to
the contrary herein, the Banks other than Bank of America shall not share in
such payment.
THE BORROWER ACKNOWLEDGES AND AGREES THAT THE BANKS HAVE ABSOLUTELY NO
DUTY TO FUND ANY REVOLVING LOAN REQUESTED BY THE BORROWER BUT WILL EVALUATE EACH
LOAN REQUEST AND IN EACH BANK'S ABSOLUTE AND SOLE DISCRETION WILL DECIDE WHETHER
TO FUND SUCH LOAN REQUEST. THE BORROWER FURTHER ACKNOWLEDGES AND AGREES THAT
BANK OF AMERICA HAS ABSOLUTELY NO DUTY TO MAKE OR FUND ANY OVERDRAFT ADVANCE OR
TO ENTER INTO ANY SWAP CONTRACT, AND ANY OVERDRAFT ADVANCE OR THE ENTERING INTO
OF ANY SWAP CONTRACT SHALL BE AT BANK OF AMERICA'S ABSOLUTE AND SOLE DISCRETION
AND THAT BNP PARIBAS HAS ABSOLUTELY NO DUTY TO ENTER INTO ANY SWAP CONTRACT, AND
THE ENTERING INTO OF ANY SWAP CONTRACT SHALL BE AT BNP PARIBAS' ABSOLUTE AND
SOLE DISCRETION.
13. Subsection (a) of Section 2.03 of the Credit Agreement, Procedure
for Borrowing, is hereby deleted in its entirety and replaced with the
following:
(a) Each Borrowing of Revolving Loans consisting only of Base
Rate Loans, if approved by the Banks in their sole discretion, shall be made
upon the Borrower's irrevocable written notice delivered to the Agent and the
Banks in the form of a Notice of Borrowing (Revolving Loan), which notice must
be received by the Agent and the Banks prior to 12:00 p.m. (Dallas time) on the
Borrowing Date specifying the amount of the Borrowing. Each such Notice of
Borrowing shall be by electronic transfer or facsimile, confirmed immediately in
an original writing. Each Borrowing of Revolving Loans that includes any
Offshore Rate Loans, if approved by the Banks in their sole discretion, shall be
made upon the Borrower's irrevocable written notice delivered to the Agent and
the Banks in the form of a Notice of Borrowing (which notice must be received by
the Agent and the Banks prior to 12:00 p.m. Dallas time three (3) Business Days
prior to the requested Borrowing Date), specifying the amount of the Borrowing.
Each such Notice of Borrowing shall be by electronic transfer or facsimile,
confirmed
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 8
immediately in an original writing. Each requested Offshore Rate Loan must have
an Offshore Effective Amount of at least $15,000,000. A Bankcard Advance may be
made by Bank of America in its sole discretion or, at Bank of America's
discretion, upon written request from Borrower.
14. Section 2.07 of the Credit Agreement, Repayment, is hereby deleted
in its entirety and replaced with the following:
2.07 Repayment. The Borrower shall repay the
principal amount of each Revolving Loan to the Agent on behalf
of the Banks, on the Advance Maturity Date for such Loan. The
Borrower shall repay to the Agent for the benefit of Bank of
America each Overdraft Advance made under the Overdraft Line
and each Bankcard Line Advance made under the Bankcard Line on
the next Business Day after such Overdraft Advance or Bankcard
Line is made. Notwithstanding anything to the contrary
contained herein, the Banks other than Bank of America shall
not share in any payment made with respect to the Overdraft
Line or the Bankcard Line. All amounts owing Bank of America
under the Overdraft Line or the Bankcard Line and all amounts
owing to Bank of America or BNP Paribas under any Swap
Contract, to the extent such amounts have not been repaid from
the proceeds of a Revolving Loan, shall be paid on demand, or
if no demand is made, on the first (1st) Business Day after
the Borrower receives notice that such amount was advanced by
or becomes owing to Bank of America or BNP Paribas.
15. Subsection (a) and Subsection (b) of Section 2.08 of the Credit
Agreement, Interest, are hereby deleted in their entirety and replaced with the
following:
(a) Each Revolving Loan and Overdraft Advance and each
Bankcard Advance (except for a Revolving Loan made as a result of a
drawing under a Letter of Credit or a Reducing L/C Borrowing) shall
bear interest on the outstanding principal amount thereof from the
applicable Borrowing Date at a floating rate per annum equal to the
Base Rate plus the Applicable Margin at all times such Loan is a Base
Rate Loan or at the Offshore Rate plus the Applicable Margin at all
times such Loan is an Offshore Rate Loan. Each Revolving Loan made as a
result of a drawing under a Letter of Credit or a Reducing L/C
Borrowing, all amounts owing to Bank of America or any Affiliate of
Bank of America under the Overdraft Line or the Bankcard Line or owing
to Bank of America or BNP Paribas with respect to any Swap Contract,
shall bear interest on the outstanding principal amount thereof from
the date funded at a floating rate per annum equal to the Base Rate
plus the Applicable Margin until such Loan has been outstanding for
more than two (2) Business Days and, thereafter, shall bear interest on
the outstanding principal amount thereof at a floating rate per annum
equal to the Base Rate, plus three percent (3.0%) per annum (the
"Default Rate").
(b) Interest on each Revolving Loan shall be paid upon demand,
or if no demand is made, shall be paid in arrears on each Interest
Payment Date. Interest on each Overdraft Advance and each Bankcard
Advance shall be paid upon demand, or if no
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 9
demand is made, on the earlier to occur of the date of repayment of
such Overdraft Advance or Bankcard Advance or the date such Overdraft
Advance is due and payable.
16. Section 2.13 of the Credit Agreement, Sharing of Payments, Etc., is
hereby deleted in its entirety and replaced with the following:
2.13 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Pro Rata Share or Adjusted Pro Rata
Share, as the case may be at such time (other than payments to Bank of America
or BNP Paribas with respect to advances made in excess of the Borrowing Base
Advance Cap as a result of payment under a Swap Contract or advances under the
Overdraft Line or the Bankcard Line), such Bank shall immediately (a) notify the
Agent of such fact, and (b) purchase from the other Banks such participations in
the Loans made by them as shall be necessary to cause such purchasing Bank to
share the excess payment pro rata with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Bank, such purchase shall to that extent be rescinded and each other
Bank shall repay to the purchasing Bank the purchase price paid therefor,
together with an amount equal to such paying Bank's ratable share (according to
the proportion of (i) the amount of such paying Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Borrower agrees that any Bank so purchasing a
participation from another Bank may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 11.09) with respect to such participation as fully as if such Bank
were the direct creditor of the Borrower in the amount of such participation.
The Agent will keep records (which shall be conclusive and binding in the
absence of manifest error) of participations purchased under this Section and
will in each case notify the Banks following any such purchases or repayments.
17. Section 2.14 of the Credit Agreement, The Election of One Bank to
Continue Funding, is hereby deleted in its entirety and replaced with the
following:
2.14 The Election of One Bank to Continue Funding. If one or
more Banks (the "Declining Banks") do not approve a requested Revolving
Loan or the issuance or amendment of a requested Letter of Credit for
reasons other than a Default and the other Bank or Banks do approve
such Revolving Loan or the issuance or amendment of such Letter of
Credit, the Agent shall notify the Banks. If the Bank or Banks which
are not the Declining Banks desire, they may (on a pro rata basis among
the Banks that have elected to continue funding) make the full amount
of such requested Revolving Loan or issue or amend the requested Letter
of Credit irrespective of the Declining Banks' disapproval (in such
case, the Banks that elect to continue funding shall be referred to as
the "Approving Banks"). In such event, from such date (the "Conversion
to Single Funding Bank Date") forward (a) all subsequent Revolving
Loans and Issuances of Letters of Credit or Amendments to Letters of
Credit that increase the face amount of a Letter of Credit or extend
the term of a Letter of Credit shall be made unilaterally by the
Approving Banks and no Letter of Credit thereafter Issued shall be
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 10
participated in by the Declining Banks, (b) all Banks' interests in the
Collateral and loan management decisions shall be pro-rata based on
each Bank's total Effective Amount of Revolving Loans, plus the
Effective Amounts of such Bank's L/C Obligations from time to time, and
(c) the Approving Banks' Uncommitted Line Portion shall be increased on
the basis of each such advance and Issuance of a Letter of Credit.
NOTWITHSTANDING THE FOREGOING, HOWEVER, FOR PURPOSES
OF ALLOCATING REPAYMENTS PRIOR TO THE OCCURRENCE OF A DEFAULT
HEREUNDER, THE ADJUSTED PRO RATA SHARE OF THE UNCOMMITTED LINE OF EACH
BANK SHALL REMAIN FIXED AT THE PERCENTAGE HELD BY SUCH BANK THE DAY
BEFORE THE CONVERSION TO SINGLE FUNDING BANK DATE, WITHOUT RESPECT TO
ANY CHANGES WHICH MAY SUBSEQUENTLY OCCUR IN SUCH BANK'S PRO RATA SHARE
OF THE UNCOMMITTED LINE EXCEPT THAT IN THE EVENT THAT OBLIGATIONS
BECOME OWING TO BANK OF AMERICA OR BNP PARIBAS AND THEIR AFFILIATES
AFTER SUCH DATE PURSUANT TO THE OVERDRAFT LINE OR THE BANKCARD LINE OR
PURSUANT TO SWAP CONTRACTS AS A RESULT OF CONTRACTS OR TRANSACTIONS
EXISTING ON THE CONVERSION TO SINGLE FUNDING BANK DATE, THE ADJUSTED
PRO RATA SHARE OF EACH BANK SHALL BE RECALCULATED TO ACCOUNT FOR THE
INCREASE IN OBLIGATIONS THAT HAVE BECOME OWING TO BANK OF AMERICA OR
BNP PARIBAS OR THEIR AFFILIATES UNTIL SUCH TIME, IF ANY, THAT ONE BANK
IS FULLY REPAID. UPON THE OCCURRENCE OF A DEFAULT AND THEREAFTER,
REPAYMENTS SHALL BE ALLOCATED ACCORDING TO THE ADJUSTED PRO RATA SHARE
OF THE OUTSTANDING BALANCES HELD BY THE BANKS ON THE DATE OF DEFAULT
EXCEPT THAT IN THE EVENT THAT OBLIGATIONS BECOME OWING TO BANK OF
AMERICA OR BNP PARIBAS OR THEIR AFFILIATES AFTER SUCH DATE PURSUANT TO
THE OVERDRAFT LINE OR THE BANKCARD LINE OR PURSUANT TO SWAP CONTRACTS
AS A RESULT OF CONTRACTS OR TRANSACTIONS EXISTING ON THE DATE OF SUCH
DEFAULT, THE ADJUSTED PRO RATA SHARE OF EACH BANK SHALL BE RECALCULATED
TO ACCOUNT FOR THE INCREASE IN OBLIGATIONS OWING TO BANK OF AMERICA OR
BNP PARIBAS OR THEIR AFFILIATES.
18. Schedule 2.01 of the Credit Agreement is deleted in its entirety
and replaced with the Schedule 2.01 attached hereto.
19. Schedule 11.02 of the Credit Agreement is deleted in its entirety
and replaced with the Schedule 11.02 attached hereto.
20. Exhibit E to the Credit Agreement is deleted in its entirety and
replaced with the Exhibit E attached hereto.
21. Renewal; Continued Effect. Except as set forth above, the Credit
Agreement shall continue in full force and effect.
22. 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
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 11
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.
23. 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;
(b) a Promissory Note in the amount of $84,000,000.00, duly
executed by Borrower and payable to the order of Bank
of America;
(c) a Promissory Note in the amount of $56,000,000.00, duly
executed by Borrower and payable to the order of BNP
Paribas;
(d) a Second Amended and Restated Guaranty of each of the
Guarantors, duly executed by each Guarantor;
(e) an Amended and Restated Security Agreement, duly
executed by Borrower;
(f) an Amended and Restated Security Agreement (BNP Paribas
Commodity Futures, Inc.), duly executed by Borrower;
(g) an Acknowledgement and Ratification of Subordination
and Support Agreements, duly executed by Atmos Energy
Corporation Atmos Energy Marketing, LLC; and
(g) such other documents or certificates as Bank of America
may reasonably request.
24. 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.
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 12
25. Acknowledgment of and Consent to Assignment. The Borrower and the
Guarantors acknowledge and consent to the assignment by Bank of America of a
portion of its interest under the Credit Agreement to BNP Paribas.
26. 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.
(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.
FOURTH AMENDMENT TO CREDIT AGREEMENT - PAGE 13
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
---------------------------
BNP PARIBAS,
as a Bank
By: /s/ XXXXXX X. XXXX
------------------------------
Name: Xxxxxx X. Xxxx
----------------------------
Title: Director
---------------------------
By: /s/ OLIVIER LE BIHAN
------------------------------
Name: Olivier Le Bihan
----------------------------
Title: Vice President
---------------------------
SIGNATURE PAGE - FOURTH AMENDMENT TO CREDIT AGREEMENT
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
----------------------------------------
X. X. XXXXXXXX
/s/ XXXXX XXXXX
----------------------------------------
XXXXX XXXXX
SIGNATURE PAGE - FOURTH AMENDMENT TO CREDIT AGREEMENT
SCHEDULE 2.01
UNCOMMITTED LINE AND
UNCOMMITTED LINE PORTION
(EXCLUDING OVERDRAFT LINES AND
SWAP CONTRACTS)
I. Until such time as the Borrower first elects a Borrowing Base Sub-Cap of
$110,000,000 or more:
Pro Rata
Line: Bank Dollar Amount Share
----- ---- ------------- -----
Borrowing Base Bank of America $75,000,000.00 75%
Line
BNP Paribas $25,000,000.00 25%
Collateralized Bank of America $11,250,000.00 75%
L/C Line
BNP Paribas $3,750,000.00 25%
II. Commencing with and at all times after the date the Borrower first elects a
Borrowing Base Sub-Cap of $110,000,000 or more:
Line: Bank Dollar Amount Share
----- ---- ------------- -----
Borrowing Base Bank of America $75,000,000.00 60%
Line
BNP Paribas $50,000,000.00 40%
Collateralized Bank of America $ 9,000,000.00 60%
L/C Line
BNP Paribas $ 6,000,000.00 40%
SCHEDULE 11.02
LENDING OFFICES AND ADDRESSES FOR NOTICES
BANK OF AMERICA, N. A.,
as Agent
Bank of America, N. A.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AGENT'S PAYMENT OFFICE:
Bank of America, N. A.
Bank of America Plaza, 8th Floor
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
BANK OF AMERICA, N. A.,
as Issuing Bank
Bank of America, N. A.
International Trade Operations Center
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N. A.,
as a Bank
Bank of America, N. A.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BNP PARIBAS,
as a Bank
BNP Paribas
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx Xxxx
Telephone: (000) 000 0000
Facsimile: (000) 000 0000
EXHIBIT E
FORM OF
BORROWING BASE COLLATERAL POSITION REPORT
[Date]
Bank of America, N. A., as Agent
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Re: Credit Agreement, dated to be effective as of August 9, 2000 (as
amended or supplemented from time to time, the "Agreement"), by
and among Xxxxxxxx Marketing, L.L.C. (the "Borrower"), the banks
that from time to time are parties thereto, and Bank of America,
N. A., as Agent
Ladies and Gentlemen:
The Borrower, acting through its duly authorized Responsible Officer
(as that term is defined in the Agreement), deliver the attached report to the
Banks and certify to each of the Banks that it is in compliance with the
Agreement. Further, the undersigned hereby certifies that the Net Position has
at no time exceeded the limitations set forth in Section 8.11 of the Agreement
and that the undersigned has no knowledge of any Defaults or Events of Default
under the Agreement which exist as of the date of this letter.
The undersigned also certifies that the amounts set forth on the
attached report constitute all Collateral which has been or is being used in
determining availability for an advance or letter of credit issued under the
Borrowing Base Line as of the preceding date. This certificate and attached
reports are submitted pursuant to Section 7.02(b) of the Agreement. Capitalized
terms used herein and in the attached reports have the meanings specified in the
Agreement.
Very truly yours,
XXXXXXXX MARKETING, L.L.C.
By:
-------------------------------------
Name:
-----------------------------------
Title: Responsible Officer
XXXXXXXX MARKETING, L.L.C.,
BORROWING BASE COLLATERAL POSITION REPORT
AS OF [DATE]
In my capacity as Responsible Officer for Xxxxxxxx Marketing, L.L.C., I
hereby certify that as of the date written above, the amounts indicated below
were accurate and true as of the date of preparation. I also certify that the
net long or short position has not exceeded the limitations set forth in Section
8.11 of the Credit Agreement.
I. COLLATERAL
A. Cash Collateral $_______ 100% $________
B. BA Futures equity $_______ 90% $________
C. BNP Paribas Futures equity $_______ 90% $________
D. Tier I Accounts $_______ 90% $________
E. Tier II Accounts $_______ 85% $________
F. Tier I Unbilled Accounts $_______ 85% $________
G. Tier II Unbilled Accounts $_______ 80% $________
H. Eligible Inventory $_______ 80% $________
I. Eligible Exchange Receivables $_______ 80% $________
J. Undelivered Product Value $_______ 80% $________
K. First purchaser liability $(______) 100% $(_______)
L. 125% of Net amounts due Bank of America
under commodity Swap Contracts $(______) 125% $(_______)
M. 125% of Net Amounts due BNP Paribas
under commodity Swap Contracts $(______) 125% $(_______)
N. 100% of Borrower's Unrealized Xxxx-to-Market Losses $(______) 100% $(_______)
--------- ---- ---------
========== ==== ==========
TOTAL COLLATERAL $_______ ____ $_________
BORROWING BASE SUB-CAP $_________
BORROWING BASE ADVANCE CAP (Least of
$125,000,000.00, Borrowing Base Sub-Cap or Total Collateral) $_________
II. BANK OUTSTANDINGS
A. Loans from the Banks $_________
B. L/Cs from the Banks $_________
TOTAL OUTSTANDINGS UNDER BORROWING BASE LINE $_________
III. EXCESS/(DEFICIT) (I-II) $_________
IV. NET SHORT OR LONG POSITION __________ MMBTUS
Attached hereto are (i) an aging report, (ii) a schedule of netted qualified
exchange balances, (iii) a schedule of qualified inventory and (iv) a schedule
of all contras applied against (i), (ii), and (iii).
By:
----------------------------------------
Responsible Officer
