Tenth Amendment to Credit Agreement and First Amendment to Support Agreement

EX-10.7(K) 7 d20385exv10w7xky.txt TENTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO SUPPORT AGREEMENT 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 -2- (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 -3- 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. -4- [SIGNATURES FOLLOW] -5- 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 ------------------------------------------- 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 ------------------------------------------- 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 ------------------------------------------- Name: Edward Chin Title: Managing Director By: /s/ SALLY HASWELL ------------------------------------------- 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 ------------------------------------------- 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 ------------------------------------------- Name: Hermine Kirolos Title: Group Vice President By: /s/ GRISELDA ALVIZO ------------------------------------------- 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 ------------------------------------------- Name: L.J. Perenyi Title: Vice President Attention: Seiji Tate Telephone: 212 ###-###-#### Facsimile: 213 ###-###-#### BROWN BROTHERS HARRIMAN & CO., as a Bank By: /s/ JOHN C. SANTOS, JR. ----------------------------------------- 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