EXHIBIT 10.8(e)
SECOND AMENDED AND RESTATED GUARANTY OF
ATMOS ENERGY MARKETING, LLC
This Second Amended and Restated Guaranty (this "Guaranty"), entered into
effective as of December 22, 2000, is made by ATMOS ENERGY MARKETING, LLC, a
Delaware limited liability company ("Guarantor"), in favor of BANK OF AMERICA,
N.A. ("Agent") as agent for the ratable benefit of the Banks (as hereinafter
defined) in amendment and restatement in its entirety of that certain GUARANTY
OF ATMOS ENERGY MARKETING, LLC dated as of August 9, 2000, as amended by that
certain FIRST AMENDMENT TO CREDIT AGREEMENT AND GUARANTY OF ATMOS ENERGY
MARKETING, LLC entered into effective as of September 29, 2000, among XXXXXXXX
MARKETING, L.L.C., BANK OF AMERICA, N. A., 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 and that certain Amended and Restated Guaranty of
ATMOS ENERGY MARKETING, LLC entered into effective as of November 3, 2000.
WHEREAS, pursuant to that certain Credit Agreement, dated to be effective
as of August 9, 2000, 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 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, 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 $100,000,000.00, which Credit Agreement , 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, which Second Amendment to Credit Agreement
increased the uncommitted discretionary and demand line of credit facility to an
amount outstanding at any one time of up to an aggregate of $115,000,000.00,
that certain Third Amendment to Credit Agreement dated as of December 5, 2000
and that certain Fourth Amendment to Credit Agreement dated as of even date
herewith which Fourth Amendment to Credit Agreement increased the uncommitted
discretionary and demand line of credit facility to an amount outstanding at any
one time of up to an aggregate of $140,000,000.00 (as amended and as further
amended from time to time, the "Credit Agreement"); 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, 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
in its capacity as a Bank may enter into Swap Contracts with the Borrower; and
SECOND AMENDED AND RESTATED GUARANTY - Page 1
(ATMOS ENERGY MARKETING, LLC)
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).
"Guaranteed Payment Amount" as used in this Guaranty shall mean the sum of
the following:
(1) an amount equal to forty-five percent (45%) 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.
Notwithstanding anything to the contrary contained herein or in any other
Loan Document, except for payments of the Guaranteed Payment Amount made by
Guarantor from Guarantor's own funds and clearly identified as such in a written
notice to Agent at the time such payment is made, the Guaranteed Payment Amount
shall not be reduced by any payments made under the Note or any reductions in
the Obligations which occur after the Demand Date, including, without
limitation, any such payments or reductions by reason of (a) payments made by
Borrower or with the Borrower's assets, (b) payments made by any other guarantor
or with such guarantor's assets, (c) any offset by Banks, or (d) any foreclosure
of, or other realization on (including without limitation collection of
insurance proceeds) or in respect of, any of the liens, collateral assignments,
security interests, letters of credit or other security devices now or hereafter
securing payment of the Obligations (including without limitation payments or
reductions resulting from the application of the proceeds of the foreclosure of
or other realization on collateral pledged by Borrower or Guarantor to secure
payment of the Obligations). 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.
Further notwithstanding anything to the contrary contained herein or in any
other Loan Document, upon the closing of any transaction or transactions which
results in Guarantor owning
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(ATMOS ENERGY MARKETING, LLC)
100% of the membership interests of Borrower (the "Acquisition"), the percentage
set forth in subpart (1) of the definition of Guaranteed Payment Amount above,
shall automatically increase from forty-five percent (45%) to one hundred
percent (100%), without notice to Guarantor or any other Person and without
further action by Agent or the Banks.
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 Bank of America Plaza, 8th Floor, 000
Xxxx Xx., Xxxxxx, Xxxxx 00000-0000, 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 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)
SECOND AMENDED AND RESTATED GUARANTY - Page 3
(ATMOS ENERGY MARKETING, LLC)
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.
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 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:
SECOND AMENDED AND RESTATED GUARANTY - Page 4
(ATMOS ENERGY MARKETING, LLC)
(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.
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
CALIFORNIA.
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 CALIFORNIA OR OF THE UNITED STATES FOR
THE CENTRAL DISTRICT OF CALIFORNIA, 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 CALIFORNIA FOR SUCH
PURPOSES.
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(ATMOS ENERGY MARKETING, LLC)
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.
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:
Bank of America, N.A.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and the addresses of the Banks shall be as follows:
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
000 Xxxxxxx 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.
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(ATMOS ENERGY MARKETING, LLC)
19. Guarantor hereby agrees that, immediately upon closing of the
Acquisition, Guarantor will execute and deliver to Agent a Consent and
Ratification in the form attached hereto as Exhibit A.
20. 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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SECOND AMENDED AND RESTATED GUARANTY - Page 7
(ATMOS ENERGY MARKETING, LLC)
Executed as of the date first written above.
GUARANTOR:
ATMOS ENERGY MARKETING, LLC
By:
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Name:
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Title:
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Address:
1800 Three Lincoln Centre
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
EXECUTION PAGE TO SECOND AMENDED AND RESTATED GUARANTY
(ATMOS ENERGY MARKETING, LLC)
EXHIBIT A
FORM OF CONSENT AND RATIFICATION
The undersigned, ATMOS ENERGY MARKETING, LLC, has executed that certain
Second Amended and Restated Guaranty, dated as of December 22, 2000 (the
"Guaranty"), in favor of BANK OF AMERICA, N.A. ("Agent"), as Agent for the
ratable benefit of the Banks. The undersigned hereby (i) consents and agrees to
the release by Agent of those certain Guaranty agreements executed by X.X.
Xxxxxxxx, Xxxxx Xxxxx and Xxxxxxxx Marketing, Inc., each dated the same date as
the Guaranty (the "Released Guaranties"), and (ii) agrees that the Guaranty
shall remain in full force and effect and shall continue to be the legal, valid
and binding obligation of the undersigned enforceable against it in accordance
with its terms. Furthermore, the undersigned hereby agrees and acknowledges that
(a) the Acquisition has occurred, (b) as a result of the Acquisition, the
undersigned owns 100% of the membership interests in Borrower, (c) pursuant to
the terms of the Guaranty, as of the date of the Acquisition, the percentage set
forth in subpart (1) of the definition of Guaranteed Payment Amount in the
Guaranty, automatically increased from forty-five percent (45%) to one hundred
percent (100%) (i.e. Guarantor has guaranteed one hundred percent (100%) of the
Obligations), and (d) the Guaranty is not subject to any claims, defenses or
offsets, (e) the release by the Agent of the Released Guaranties shall in no way
reduce, impair or discharge any obligations of the undersigned as guarantor
pursuant to the Guaranty and shall not constitute a waiver by Agent of any of
Agent's rights against the undersigned. Unless otherwise defined herein, all
capitalized terms used herein have the meanings assigned to such terms in the
Guaranty.
Executed as of the ___ day of ______, 2000.
ATMOS ENERGY MARKETING, LLC
By:
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Name:
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Title:
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EXHIBIT A
