EXHIBIT 10.1 (b)
EIGHTH AMENDMENT TO CREDIT AGREEMENT
This EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into effective as of October 31, 2001, 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
Atmos Energy Marketing, LLC (the "Guarantor").
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, that certain Third Amendment to Credit Agreement
dated as of December 5, 2000, that certain Fourth Amendment to Credit Agreement
dated as of December 22, 2000, that certain Fifth Amendment to Credit Agreement
dated as of December 31, 2000, that certain Sixth Amendment to Credit Agreement
dated as of June 29, 2001, that certain Seventh Amendment to Credit Agreement
dated as of September 30, 2001 (as amended, modified, supplemented, extended and
replaced from time to time, the "Credit Agreement"); and
WHEREAS, all Obligations (as defined in the Credit Agreement) are
guaranteed by the Guarantor pursuant to a Second Amended And Restated Guaranty
of Atmos Energy Marketing, LLC executed by the Guarantor, entered into effective
as of December 22, 2000, in favor of the Banks (the "Guaranty Agreement"); and
WHEREAS, the Obligations are secured by security interests in the
Collateral (as defined in the Credit Agreement) granted to Agent for the benefit
of the Banks 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, BNP Paribas and the Guarantor agree
as follows:
1. The definition of "Expiration Date" set forth in Section 1.01 of the
Credit Agreement is deleted in its entirety and replaced with the following
definition:
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"Expiration Date" means the earliest to occur of:
(a) November 30, 2001; or
(b) the date demand for payment is made by the Agents; or
(c) the date an Event of Default occurs.
2. The definition of "Maturity Date" set forth in Section 1.01 of the
Credit Agreement is deleted in its entirety and replaced with the following
definition:
"Maturity Date" means February 15, 2002.
3. Renewal; Continued Effect. Except as set forth above, the Credit
Agreement shall continue in full force and effect.
4. Representations. To induce the Agent and 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 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 BANKS AND THAT THE BANKS HAVE ABSOLUTELY NO DUTY OR OBLIGATION TO ADVANCE
ANY REVOLVING LOAN OR TO ISSUE ANY LETTER OF CREDIT. BORROWER REPRESENTS AND
WARRANTS TO THE BANKS THAT BORROWER IS AWARE OF THE RISKS ASSOCIATED WITH
CONDUCTING BUSINESS UTILIZING AN UNCOMMITTED FACILITY.
5. Conditions Precedent. As a condition to Agent and the Banks entering
into this Amendment, no Default or Event of Default shall exist on the date
hereof, and Agent and the Banks must have received executed originals of each of
the following documents and instruments, in form and substance satisfactory to
Agent and the Banks:
(a) this Amendment, duly executed by Borrower; and
(b) such other documents or certificates as Agent 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
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confirms and grants to Agent for the benefit of the Banks a continuing first and
prior security interest in the Collateral to secure payment and performance of
all Obligations.
7. Guaranty Ratification. Atmos Energy Marketing, LLC ratifies and
confirms the SECOND AMENDED AND RESTATED GUARANTY OF ATMOS ENERGY MARKETING, LLC
and acknowledges and agrees that such Guaranty Agreement shall continue in full
force and effect, and that pursuant to the Guaranty Agreement, the Guarantor has
guaranteed and continues to guaranty the full payment and performance of all
Obligations under the Credit Agreement, as amended from time to time.
8. Notes Amendment and Ratification. The Borrower ratifies and confirms
the Promissory Notes issued to Bank of America and BNP Paribas and acknowledges
and agrees that such Promissory Notes shall continue in full force and effect,
and shall be "Notes" as defined in the Credit Agreement, as amended hereby.
9. 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 Agent, Banks and all
Agent-Related Persons 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, Agent, Banks and all
Agent-Related Persons, 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.
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Executed as of the day and year first above written
BORROWER:
XXXXXXXX MARKETING, L.L.C.,
a Delaware limited liability company
By: /s/ XXXXXX X. XXXX
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
BANKS:
BANK OF AMERICA, N. A.,
as Agent
By: /s/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Principal
BANK OF AMERICA, N. A.,
as a Bank and Issuing Bank
By: /s/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Principal
BNP PARIBAS,
as a Bank
By: /s/ XXXXXX X. XXXX
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
By: /s/ XXXXX XXX
---------------------------------
Name: Xxxxx Xxx
Title: Director
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GUARANTOR:
ATMOS ENERGY MARKETING, LLC
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
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