EXHIBIT 10.7(k)
TENTH AMENDMENT TO CREDIT AGREEMENT
AND FIRST AMENDMENT TO SUPPORT AGREEMENT
TENTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO SUPPORT
AGREEMENT, dated as of September 17, 2004 (this "Amendment"), in respect of (i)
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
"Existing Credit Agreement"; as amended hereby and as further amended, restated,
supplemented or otherwise modified and in effect from time to time, the "Credit
Agreement") among ATMOS ENERGY MARKETING, LLC (formerly known as Woodward
Marketing, L.L.C.), a Delaware limited liability company (the "the Borrower"),
the financial institutions from time to time parties thereto (the "Banks"),
FORTIS CAPITAL CORP., a Connecticut corporation ("Fortis"), as a Bank, an
Issuing Bank, Collateral Agent and Administrative Agent for the Banks, and BNP
PARIBAS, a bank organized under the laws of France ("BNP Paribas"), as a Bank,
an Issuing Bank and Documentation Agent, and (ii) the Support Agreement, dated
as of July 1, 2002, of Atmos Energy Corporation (the "Support Agreement").
WHEREAS, the parties hereto desire to amend the Existing Credit
Agreement and the Support Agreement as more fully 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 parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Existing Credit Agreement are used herein as therein defined.
2. Amendments to Existing Credit Agreement. The Existing Credit
Agreement is hereby amended as follows:
(a) Subsection (a) of the definition of "Eligible Accounts" set forth
in Section 1.01, Certain Defined Terms, is hereby deleted in its entirety and
the following new subsection (a) is inserted in lieu thereof:
"(a) Such Account (i) if for an amount in excess of
$750,000.00, is acceptable to the Banks in their sole discretion and
either (x) is the result of a sale to a Tier I or Tier II Account
Party, or (y) is secured by letters of credit in form acceptable to the
Banks in their sole discretion and issued by banks approved by the
Banks in their sole discretion, or (ii) if for an amount of $750,000.00
or less, such Account will be included as a Tier II Account unless
such Account has been previously approved by the Banks as a Tier I
Account;"
(b) Subsection (i) of the definition of "Eligible Accounts" set forth
in Section 1.01, Certain Defined Terms, is hereby deleted in its entirety and
the following new subsection (i) is inserted in lieu thereof:
"(i) No Account Debtor in respect of such Account is (i)
incorporated in or primarily conducting business in any jurisdiction
outside of the U.S., unless such Account Debtor and the Account is
approved by the Banks and the Borrower is notified in writing by the
Administrative Agent, or (ii) an Affiliate of the Borrower, other than
Atmos Energy Corporation, provided, that as long as Atmos Energy
Corporation maintains an S&P rating of BBB or a Moody's rating of Baa2
or better, and such Accounts would otherwise qualify as Eligible
Accounts, Accounts of Atmos Energy Corporation (and its Subsidiaries
and Affiliates that have been approved by Agents as Tier I Account
Parties) may be included as Tier I Accounts to the extent that such
Accounts do not exceed 50% of Borrower's total Accounts, provided,
further, should Atmos Energy Corporation not maintain such ratings, and
such Accounts would otherwise qualify as Eligible Accounts, Accounts of
Atmos Energy Corporation may be included, subject to the approval of
the Banks, as Eligible Accounts as a Tier I Account or a Tier II
Account."
(c) The definition of "Swap Bank" in Section 1.01, Certain Defined
Terms, is hereby amended by deleting such definition in its entirety and
substituting in lieu thereof the following new definition:
"'Swap Bank' means BNP Paribas, Societe Generale, or Fortis,
or any Affiliate of BNP Paribas, Societe Generale, or Fortis, or any
other Bank approved by the Agents."
3. Amendment to Support Agreement. The sixth paragraph of the Support
Agreement is hereby amended by deleting such paragraph in its entirety and
substituting in lieu thereof the following new paragraph:
"Further, within 30 days of the event that our long-term
unsecured debt is rated BBB- or lower by Standard and Poor's and Baa3
or lower by Moody's, we will cause you, for the benefit of the Banks
(as defined in the Facility), to be named as an additional insured and
loss payee under all applicable insurance policies by endorsement of
such policies in a manner reasonably satisfactory to you."
4. Representations. To induce the Administrative Agent and the Banks to
enter into this Amendment, the 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 that
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(a) no material adverse change has occurred in the financial condition or
business prospects of the Borrower since the date of the last financial
statements delivered to the Administrative Agent and the Banks, (b) no Default
or Event of Default has occurred and is continuing, and (c) the Borrower is
fully authorized to enter into this Amendment. THE 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. This Amendment shall become effective on the
first date (the "Effective Date") on which each of the following conditions
precedent shall have been satisfied:
(a) Fees and Expenses. Each of the Agents and the Banks parties to this
amendment shall have received payment of a $2,500 amendment fee, in addition to
any other fees or expenses owed to them by the Borrower as of the Effective
Date,
(b) Delivered Documents. On the Effective Date, the Administrative
Agent shall have received executed originals of:
(i) this Amendment, executed by a duly authorized officer of
each of the Borrower and the Required Banks; and
(ii) such other documents or certificates as the
Administrative Agent or counsel to the Administrative Agent may
reasonably request.
(c) No Default. On the Effective Date, the Borrower shall be in
compliance in all material respects with all of the terms and provisions set
forth in the Credit Agreement and the other Loan Documents on its part to be
observed and no Event of Default shall have occurred and be continuing.
6. Miscellaneous.
(a) Limited Effect. 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; provided, however,
that upon the Effective Date, all references herein and therein to the "Loan
Documents" shall be deemed to include, in any event, the Existing Credit
Agreement, the First Amendment, dated as of December 23, 2002, the Second
Amendment, dated as of February 7, 2003, the Third Amendment, dated as of
February 28, 2003, the Fourth Amendment, dated as of March 31, 2003, the
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Fifth Amendment and Waiver, dated as of April 28, 2003, the sixth Amendment to
Credit Agreement, Global Amendment to Loan Documents and Waiver, dated as of
October 1, 2003, the Amendment to Guaranty, dated as of October 1, 2003, the
Seventh Amendment and Joinder Agreement, dated as of December 19, 2003, the
Eighth Amendment and Joinder Agreement to Credit Agreement and First Amendment
to Subordination Agreement, dated as of February 18, 2004, the Ninth Amendment
to Credit Agreement, dated as of March 31, 2004, this Amendment, the Notes, the
Guaranty, the Security Agreement, the L/C-Related Documents, the Swap Contracts,
the Three Party Agreement, the Atmos Support Agreement, and all other documents
delivered to the Administrative Agent or any Bank in connection therewith. Each
reference to the Credit Agreement in any of the Loan Documents shall be deemed
to be a reference to the Credit Agreement as amended hereby.
(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 facsimile or telecopier shall be effective as delivery of an
originally executed counterpart of this Amendment.
(d) Governing Law. This Amendment shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York without
giving effect to the conflict of law principles thereof; 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 the 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.
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[SIGNATURES FOLLOW]
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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.
BORROWER
ATMOS ENERGY MARKETING, LLC
(formerly known as Woodward Marketing,
L.L.C.), a Delaware limited liability
company
By: /s/ LOUIS P. GREGORY
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Name: Louis P. Gregory
Title: V.P. and General Counsel
the Borrower's Address:
11251 Northwest Freeway, Suite 400
Houston, Texas 77092
Attention: Ronald W. Bahr
Telephone: (713) 688-7771
Facsimile: (713) 688-5124
GUARANTOR
ATMOS ENERGY HOLDINGS, INC.
By: /s/ LOUIS P. GREGORY
-------------------------------------------
Name: Louis P. Gregory
Title: V.P. and General Counsel
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, TX 75240
ACCEPTED, ACKNOWLEDGED AND AGREED:
ATMOS ENERGY CORPORATION
By: /s/ LOUIS P. GREGORY
-------------------------------------------
Name: Louis P. Gregory
Title: V.P. and General Counsel
FORTIS CAPITAL CORP.,
a Connecticut corporation, as Administrative Agent,
Collateral Agent, Issuing Bank, and a Bank
By: /s/ IRENE RUMMEL
-------------------------------------------
Name: Irene Rummel
Title: Senior Vice President
By: /s/ LEONARD RUSSO
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Name: Leonard Russo
Title: Director
15455 N. Dallas Parkway
Suite 1400
Addison, TX 75001
Telephone: (214) 953-9313
Facsimile: (214) 969-9332
BNP PARIBAS,
a bank organized under the laws of France, as a
Bank, Issuing Bank, and Documentation Agent
By: /s/ EDWARD CHIN
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Name: Edward Chin
Title: Managing Director
By: /s/ SALLY HASWELL
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Name: Sally Haswell
Title: Director
787 Seventh Avenue
New York, New York 10019
Attention: Ed Chin
Telephone: (212) 841-2020
Facsimile: (212) 841-2536
SOCIETE GENERALE, as a Bank
By: /s/ BARBARA PAULSEN
-------------------------------------------
Name: Barbara Paulsen
Title: Director
1221 Avenue of the Americas
New York, New York 10020
Attention: Barbara Paulsen
Telephone: (212) 278-6496
Facsimile: (212) 278-7417
NATEXIS BANQUES POPULAIRES, NEW YORK BRANCH,
as a Bank
By: /s/ DAVID PERSHAD
-------------------------------------------
Name: David Pershad
Title: Vice President
By: /s/ GUILLAUME DE PARASCAU
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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: David Pershad
Telephone: (212) 872-5015
Facsimile: (212) 354-9095
RZB FINANCE LLC, as a Bank
By: /s/ HERMINE KIROLOS
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Name: Hermine Kirolos
Title: Group Vice President
By: /s/ GRISELDA ALVIZO
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Name: Griselda Alvizo
Title: Vice President
1133 Avenue of the Americas
New York, New York 10036
Attention: Hermine Kirolos
Telephone: (212) 845-4114
Facsimile: (212) 944-6389
UFJ BANK LIMITED, NEW YORK BRANCH, as a Bank
By: /s/L.J. PERENYI
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Name: L.J. Perenyi
Title: Vice President
Attention: Seiji Tate
Telephone: 212-339-6235
Facsimile: 213-754-2360
BROWN BROTHERS HARRIMAN & CO., as a Bank
By: /s/ JOHN C. SANTOS, JR.
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Name: John C. Santos, Jr.
Title: Managing Director
40 Broadway
New York, New York 10005
Attention: Paul Feldman
Telephone: (212) 493-7732
Facsimile: (212) 493-8998