exv10w1



 






Exhibit 10.1




ELEVENTH AMENDMENT TO CREDIT AGREEMENT




     This ELEVENTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into
effective as of December 14, 2004, 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”) by and among ATMOS ENERGY MARKETING, LLC (formerly
known as 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 Borrower has requested that the Administrative Agent and the Banks agree to amend
a certain provision of the Credit Agreement, as more fully set forth herein; and



          WHEREAS, the Administrative Agent and the Required Banks are willing to agree to such
amendment, but only on the terms and subject to the conditions set forth in this Amendment;



          NOW, THEREFORE, in consideration of premises and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Borrower and the Required Banks
agree as follows:



          1. Defined Terms. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.




          2. Amendment. Section 7.01(a)(iii) of the Credit Agreement is hereby amended by
inserting immediately following the phrase “setting forth in each case in comparative form the
figures for the previous fiscal year” the phrase “except that no such comparative figures shall be
required for the fiscal year ended September 30, 2004”.




          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.




          4. Conditions Precedent. This Amendment shall become effective upon the
Administrative Agent and the Banks having received:




          (a) Payment of all fees and expenses owed to them; and




          (b) Executed originals of each of the following documents and instruments, in form and
substance satisfactory to the Administrative Agent and the Banks:




          (i) this Amendment, duly executed by Borrower and the Required Banks;




          (ii) 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.



2









 





                (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]


3









 





          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.



	 	 	 	 	 
	 	ATMOS ENERGY MARKETING, LLC

(formerly known as
Woodward Marketing, L.L.C.), a Delaware limited liability company

 

 	 
	 	By:  	/s/ C. RICHARD ALFORD
 	 
	 	Name:	C. Richard Alford 	 
	 	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




[Signatures continue on following page.]




[Amendment to Credit Agreement]




 









 








	 	 	 	 	 
	 	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

Dallas, TX 75001

Telephone: (214) 953-9313

Facsimile: (214) 969-9332





[Signatures continue on following page.]




[Amendment to Credit Agreement]




 









 








	 	 	 	 	 
	 	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/ RICK WERNLI
 	 
	 	Name:	Rick Wernli 	 
	 	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]




 









 








	 	 	 	 	 
	 	SOCIÉTÉ GÉNÉRALE, as a Bank

 
 	 
	 	By:  	/s/
EMMANUEL CHESNEAU
 	 
	 	Name:	Emmanuel Chesneau 	 
	 	Title:	Director 	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                  /s/ CHUNG-TAEK OH
 	 
	 	Name:	Chung-Taek Oh 	 
	 	Title:	Associate 	 
	 
	 	1221 Avenue of the Americas

New York, New York 10020

Attention: Barbara Paulsen

Telephone: (212) 278-6496

Facsimile: (212) 278-7417




[Signatures continue on following page.]




[Amendment to Credit Agreement]




 









 








	 	 	 	 	 
	 	NATEXIS BANQUES POPULAIRES, NEW YORK BRANCH, as a Bank

 
 	 
	 	By:  	/s/ DAVID PERSHAD
 	 
	 	Name:	David Pershad 	 
	 	Title:	Vice President 	 



	 	 	 	 	 
	 	 	 
	 	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: 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




[Signatures continue on following page.]




[Amendment to Credit Agreement]




 









 








	 	 	 	 	 
	 	UFJ BANK LIMITED, NEW YORK BRANCH, as a Bank

 
 	 
	 	By:  	/s/ L.J. PERENYI
 	 
	 	Name:	L.J. Perenyi 	 
	 	Title:	Vice President 	 
	 
	 	Attention: L.J. Perenyi

Telephone:

Facsimile:



	 	 	 	 	 
	 	BROWN BROTHERS HARRIMAN & CO., as a Bank

 
 	 
	 	By:  	/s/ PAUL FELDMAN
 	 
	 	Name:	Paul Feldman 	 
	 	Title:	SVP 	 
	 
	 	Attention:

Telephone: 212-493-7732

Facsimile: 212-493-8998



[Signatures continue on following page.]




[Amendment to Credit Agreement]




 









 








	 	 	 	 	 
	 	CONSENTED TO:





ATMOS ENERGY HOLDINGS, INC., Guarantor

 
 	 
	 	By:  	/s/ LAURIE M. SHERWOOD
 	 
	 	Name:	Laurie M. Sherwood	 
	 	Title:	Vice President & Treasurer 	 
	 
	 	1800 Three Lincoln Centre

5430 LBJ Freeway

Dallas, TX 75240




[Amendment to Credit Agreement]