EXHIBIT 10.4
FIRST AMENDMENT TO CREDIT AGREEMENT AND GUARANTY OF
ATMOS ENERGY MARKETING, LLC
This FIRST AMENDMENT TO CREDIT AGREEMENT AND GUARANTY OF ATMOS ENERGY MARKETING,
LLC (this "Amendment") is entered into effective as of September 29, 2000, among
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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
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Issuing Bank, and as Agent for the Banks, and Xxxxxxxx Marketing, Inc., Atmos
Energy Marketing LLC, X. X. Xxxxxxxx and Xxxxx Xxxxx (collectively the
"Guarantors").
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WHEREAS, Borrower and Banks entered into that certain Credit Agreement (the
"Credit Agreement"), dated to be effective as of August 9, 2000; and
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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 (the "Guaranty Agreements"), dated as
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of August 9, 2000, including, without limitation, that certain GUARANTY OF ATMOS
ENERGY MARKETING, LLC (the "Atmos Guaranty"), executed by ATMOS ENERGY
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MARKETING, LLC; 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
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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 Responsible Officer set forth in Section 1.01 of the
Credit Agreement, Certain Defined Terms, is deleted in its entirety and replaced
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with the following:
"Responsible Officer" means any of the following: X.X. Xxxxxxxx III, Xxxxx
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O. Drilling or Xxxxx X. Xxxxxx.
2 Section 8 (a) of the Atmos Guararnty is deleted in its entirety and
replaced with the following:
(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
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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. Notwithstanding the
foregoing, the audited financial statements for fiscal year ended
September 30, 2000 (except for the balance sheet) do not need to
compare financial performance for the fiscal year ended September 30,
2000 to financial performance for the fiscal year ended September 30,
1999; and
The foregoing amendment does not relieve the obligation of ATMOS ENERGY
MARKETING, LLC to provide comparative statements for any period after fiscal
year ended September 30, 2000.
3. Renewal; Continued Effect. Except as set forth above, the Credit
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Agreement and the Atmos Guaranty shall continue in full force and effect.
4. Representations. To induce the Banks to enter into this Amendment,
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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
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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.
5. Conditions Precedent. As a condition to Bank of America entering into
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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 and each of the
Guarantors; and
(b) such other documents or certificates as Bank of America may
reasonably request.
6. Guaranty Ratifications. Each of the Guarantors ratifies and confirms
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its Guaranty Agreement and acknowledges and agrees that references to the Credit
Agreement in such
FIRST AMENDMENT TO 2
CREDIT AGREEMENT
Guaranty Agreement are hereby amended to refer to the Credit Agreement as
amended by this Amendment and that in all other respects such Guaranty Agreement
shall continue in full force and effect, and that pursuant to such Guaranty
Agreement, the Guarantor has guaranteed payment and performance of the
Obligations as specified in such Guaranty Agreement.
7. Ratification of Security Agreements. Borrower ratifies and confirms
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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.
8. Miscellaneous.
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(a) Severability. In case any of the provisions of this Amendment
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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
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terms shall have the meanings specified in the Credit Agreement.
(c) Execution in Counterparts. This Amendment may be executed in any
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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
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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
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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
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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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
FIRST AMENDMENT TO 3
CREDIT AGREEMENT
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
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Name: Xxxxx X. Drilling
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Title: Senior Vice President
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BANKS:
BANK OF AMERICA, N. A.,
as Agent
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
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Title: Managing Director
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BANK OF AMERICA, N. A.,
as a Bank and Issuing Bank
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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FIRST AMENDMENT TO 4
CREDIT AGREEMENT
GUARANTORS:
XXXXXXXX MARKETING, INC.
By: /s/ XXXXX X. DRILLING
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Name: Xxxxx X. Drilling
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Title: Vice President
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ATMOS ENERGY MARKETING, INC.
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
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Title: Vice President & Treasurer
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/s/ X. X. XXXXXXXX
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X. X. XXXXXXXX
/s/ XXXXX XXXXX
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XXXXX XXXXX
FIRST AMENDMENT TO 5
CREDIT AGREEMENT
