EXHIBIT 10.1
EXECUTION COPY
FIRST AMENDMENT
This FIRST AMENDMENT (this "Amendment") is entered into effective as of
December 23, 2002, in respect of the Uncommitted Amended and Restated Credit
Agreement, dated as of July 1, 2002 (as amended, supplemented or otherwise
modified prior to the date hereof, the "Credit Agreement") among WOODWARD
MARKETING, L.L.C., a Delaware limited liability company (the "Borrower"), the
financial institutions parties thereto (the "Banks"), FORTIS CAPITAL CORP., a
Connecticut corporation ("Fortis"), as a Bank, as an Issuing Bank, as Collateral
Agent and as Administrative Agent for the Banks, and BNP PARIBAS, a bank
organized under the laws of France ("BNP Paribas"), as a Bank, as an Issuing
Bank, and as Documentation Agent.
WHEREAS, the parties hereto desire to amend the Credit Agreement as set
forth herein.
NOW, THEREFORE, in consideration of premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower, Fortis, BNP Paribas and the other Banks agree as
follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined.
2. Amendments. The Credit Agreement is hereby amended as follows:
(a) The definition of "Expiration Date" in Section 1.01,
Certain Defined Terms, is hereby amended by deleting the date "December 31,
2002" in subsection (a) and substituting in lieu thereof "February 28, 2003".
(b) The definition of "Maturity Date" in Section 1.01, Certain
Defined Terms, is hereby amended by deleting the date "March 31, 2003" and
substituting in lieu thereof "May 31, 2003".
3. Representations. To induce the Administrative 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 Administrative Agent and 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.
1
4. Conditions Precedent. As a condition to Administrative Agent and the
Banks entering into this Amendment, the Administrative Agent and the Banks must
have received executed originals of each of the following documents and
instruments, in form and substance satisfactory to the Administrative Agent and
the Banks:
(a) this Amendment, duly executed by Borrower and the Banks;
and
(b) such other documents or certificates as the Administrative
Agent may reasonably request.
5. Miscellaneous.
(a) No Other Amendments or Waivers. Except as expressly
consented to hereby, the Credit Agreement and the other Loan Documents shall
remain in full force and effect in accordance with their respective terms,
without any consent, amendment, waiver or modification of any provision thereof.
(b) 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.
(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. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier shall be effective as delivery of
an originally executed counterpart of this Amendment.
(d) Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of New York (without
reference to principles of conflicts of laws); provided, however, that the
Administrative Agent, the 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, Administrative Agent, the
Banks, 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.
[SIGNATURE PAGES FOLLOW]
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
WOODWARD MARKETING, L.L.C.,
a Delaware limited liability company
By: /s/ RONALD W. BAHR
----------------------------------
Name: Ronald W. Bahr
----------------------------------
Title: Senior Vice President
----------------------------------
Borrower's Address:
11251 Northwest Freeway, Suite 400
Houston, Texas 77092
Attention: Ronald W. Bahr
Telephone: (713) 688-7771
Facsimile: (713) 688-5124
FORTIS CAPITAL CORP.,
a Connecticut corporation
as Administrative Agent, Collateral
Agent, Issuing Bank and a Bank
By: /s/ IRENE C. RUMMEL
-------------------------------------
Name: Irene C. Rummel
Title: Senior Vice President
By: /s/ LEONARD RUSSO
-------------------------------------
Name: Leonard Russo
Title: Director
100 Crescent Court
Suite 1777
Dallas, TX 75201
Telephone: (214) 953-9314
Facsimile: (214) 969-9332
[Signatures continue on following page.]
[Amendment to Credit Agreement]
3
BNP PARIBAS,
a bank organized under the laws of France
as a Bank, Issuing Bank, and
Documentation Agent
By: /s/ ZALI WIN
----------------------------------
Name: Zali Win
----------------------------------
Title: Director
----------------------------------
787 Seventh Avenue
New York, New York 10019
Attention: Zali Win
Telephone: (212) 841-2020
Facsimile: (212) 841-2536
BNP PARIBAS,
a bank organized under the laws of France
as a Bank, Issuing Bank, and
Documentation Agent
By: /s/ EDWARD K. CHIN
----------------------------------
Name: Edward K. Chin
----------------------------------
Title: Director
----------------------------------
787 Seventh Avenue
New York, New York 10019
Attention: Ed Chin
Telephone: (212) 841-2020
Facsimile: (212) 841-2536
[Signatures continue on following page.]
[Amendment to Credit Agreement]
4
SOCIETE GENERALE,
as a Bank
By: /s/ BARBARA PAULSEN
----------------------------------
Name: Barbara Paulsen
----------------------------------
Title: VP
----------------------------------
1221 Avenue of the Americas
New York, New York 10020
Attention: Barbara Paulsen
Telephone: (212) 278-6496
Facsimile: (212) 278-7417
SOCIETE GENERALE,
as a Bank
By: /s/ EMMANUEL CHESNEAU
----------------------------------
Name: Emmanuel Chesneau
----------------------------------
Title: Director
----------------------------------
1221 Avenue of the Americas
New York, New York 10020
Attention: Emmanuel Chesneau
Telephone: (212) 278-6496
Facsimile: (212) 278-7417
[Signatures continue on following page.]
[Amendment to Credit Agreement]
5
NATEXIS BANQUES POPULAIRES, NEW YORK
BRANCH, as a Bank
By: /s/ DAVID PERSHAD
----------------------------------
Name: David Pershad
----------------------------------
Title: Vice President
----------------------------------
1251 Avenue of the Americas, 34th Floor
New York, New York 10020
Attention: David Pershad
Telephone: (212) 872-5015
Facsimile: (212) 354-9095
NATEXIS BANQUES POPULAIRES, NEW YORK
BRANCH, as a Bank
By: /s/ GUILLAUME DE PARSCAU
----------------------------------
Name: Guillaume de Parscau
----------------------------------
Title: First Vice President & Manager
----------------------------------
Commodities Finance Group
----------------------------------
1251 Avenue of the Americas, 34th Floor
New York, New York 10020
Attention: Guillaume de Parscau
Telephone: (212) 872-5015
Facsimile: (212) 354-9095
[Signatures continue on following page.]
[Amendment to Credit Agreement]
6
RZB FINANCE LLC,
as a Bank
By: /s/ HERMINE KIROLOS
----------------------------------
Name: Hermine Kirolos
----------------------------------
Title: Group Vice President
----------------------------------
1133 Avenue of the Americas
New York, New York 10036
Attention: Hermine Kirolos
Telephone: (212) 845-4114
Facsimile: (212) 944-6389
RZB FINANCE LLC,
as a Bank
By: /s/ PEARL GETTERS
----------------------------------
Name: Pearl Getters
----------------------------------
Title: First Vice President
----------------------------------
1133 Avenue of the Americas
New York, New York 10036
Attention: Pearl Getters
Telephone: (212) 845-4114
Facsimile: (212) 944-6389
[Signatures continue on following page.]
[Amendment to Credit Agreement]
7
GUARANTORS:
ATMOS ENERGY MARKETING, LLC
By: /s/ LAURIE M. SHERWOOD
----------------------------------
Name: Laurie M. Sherwood
----------------------------------
Title: VP and Treasurer
----------------------------------
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, TX 75240
ATMOS ENERGY HOLDINGS, INC.
By: /s/ LAURIE M. SHERWOOD
----------------------------------
Name: Laurie M. Sherwood
----------------------------------
Title: VP and Treasurer
----------------------------------
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, TX 75240
[Amendment to Credit Agreement]
8