Transitional Access Agreement



 EXHIBIT 10.4 
  
 TRANSITIONAL ACCESS AGREEMENT 
  
 THIS TRANSITIONAL ACCESS AGREEMENT is entered into as of October 1, 2004 (the “Execution Date”), by and between TXU Energy Retail Company
LP, TXU Business Services Company, TXU Properties Company, and TXU Electric Delivery Company (collectively referred to herein as the “TXU Companies”) and Atmos Energy Corporation (“Atmos Energy”). The aforementioned
entities are referred to collectively as the “Parties” and individually as a “Party”. 
  
 WHEREAS, TXU Gas Company (“TXU Gas”) and the TXU Companies have shared access to certain properties, facilities, software application and other
items with each other; and 
  
 WHEREAS, the Parties desire
to provide each other with the same level of access to such properties, facilities, software application (to the extent contractually authorized under the underlying software agreements) and other items (the “Access”) after the
Execution Date. 
  
 NOW, THEREFORE, in consideration of the
foregoing, the Parties agree as follows: 
  
 ARTICLE I 

ACCESS 
  
 1.1 The Access. The TXU Companies shall provide or cause to be provided to Atmos Energy the Access to the same extent as was being provided by the
TXU Companies to TXU Gas prior to the Execution Date. Atmos Energy shall provide or cause to be provided to the TXU Companies the Access to the same extent as was being provided by TXU Gas to the TXU Companies prior to the Execution Date. The Party
providing or causing to be provided the Access hereunder shall be referred to herein as the “Access Provider” and the Party receiving such Access shall be referred to herein as the “Access Recipient.” 
  
 1.2 Impracticability. The Access Provider shall not be required to
provide any Access to the extent it (a) becomes impracticable, in any material respect, as a result of a cause or causes outside the reasonable control of the Access Provider, (b) would require the Access Provider to violate any applicable laws,
rules, or regulations, or (c) would result in the breach of any agreement or other applicable contract existing on the Execution Date. 
  
 1.3 Information to be Furnished to Access Provider. The Access Recipient agrees to provide the Access Provider in a timely manner with information
necessary for, or reasonably requested by, the Access Provider to provide the Access required to be provided by the Access Provider hereunder. 
  
 1.4 Additional Resources. In providing the Access, the Access Provider shall not be obligated to (a) hire any additional employees, (b) maintain
the employment of any specific employee, or (c) purchase, lease or license any additional equipment or materials. 







 ARTICLE II 
 TERM AND TERMINATION 
  
 2.1
Term. The Access shall commence on the date this Agreement is executed and continue for a period of one (1) year, and month to month thereafter until canceled by either Party with at least 30 days’ prior written notice to the other
Party. Provided, however, Access provided to Atmos Energy by the TXU Companies to any particular property, facility, software application or other item that is related to a service covered by a Transitional Services Agreement issued in connection
with the transaction between Atmos Energy and TXU Gas shall cease at the same time the associated service is terminated. Notwithstanding anything to the contrary, this Agreement or the Access to any facility, property, software application or other
item covered hereunder may be terminated by the mutual written consent of the Parties at any time. 
  
 ARTICLE III 
 GENERAL OBLIGATIONS; STANDARD OF CARE 
  
 3.1 Indemnification by the Access Recipient. With respect to the
Access provided under this Agreement, the Access Recipient shall indemnify, defend, and hold harmless the Access Provider, as applicable, its officers, employees, agents, and consultants from and against any and all liabilities that arise out of, or
result from, the provision of Access by the Access Provider, as applicable, in accordance with this Agreement, other than liabilities arising solely from the gross negligence or willful misconduct of the Access Provider, as applicable, or its agents
or employees. Additionally, each Party will maintain policies of insurance with coverages, limits and deductibles that are reasonable and customary within the industry. 
  
 3.2 Good Faith Cooperation. The Parties will use good faith efforts to cooperate with each other in all matters
relating to the provision and receipt of the Access. 
  
 3.3
Confidentiality. It is understood that from time to time in the performance of this Agreement, that the Parties may receive, or have access to, confidential or proprietary information of the other Party. As such, each Party agrees to keep any
such information confidential and not to disclose such confidential information to third parties. Notwithstanding the forgoing, each Party will have the right to make such disclosures, if any, to governmental agencies, courts of law and to its
affiliates, attorneys, auditors and accountants, as may be reasonably necessary. In the event a Party is required to provide such confidential information in a proceeding before a governmental agency or court of law, then such Party will immediately
notify the other Party, who may seek a protective order or confidentiality agreement, whichever is applicable, and the Party in possession of such confidential information will fully cooperate with the other Party in such efforts. In the event a
Party discloses such confidential information to its affiliates, attorneys, auditors or accountants, then such Party will nevertheless continue to have the obligation to protect such confidential information of the other Party, and will remain
liable for any failure to do so. 
  

 2 








 ARTICLE IV 
 FORCE MAJEURE 
  
 The Access
Provider will be excused for any failure or delay in performing any of its obligations under this Agreement if such failure or delay is caused by Force Majeure. For the purposes of this Agreement, “Force Majeure” means any circumstance or
event beyond the reasonable control of the Party relying upon such event or circumstance, including, without limitation: any act of God; any accident, explosion, fire, ice, earthquake, lightning, tornado, hurricane, or other severe weather condition
or calamity; any civil disturbance, labor dispute, or labor or material shortage or interruption; any sabotage or acts of terrorism; any acts of a public enemy, uprising, insurrection, civil unrest, war, or rebellion; or any action or restraint by
court order or public or governmental authority or lawfully established civilian authorities. 
  
 ARTICLE V 
 MISCELLANEOUS 
  
 5.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject
matter hereof and thereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof and thereof. 
  
 5.2 Governing Law. This Agreement shall be governed and construed and enforced in accordance with the laws of the
State of Texas as to all matters, without regard to principles of conflicts of laws that would require the application of the law of another state. 
  
 5.3 Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. 
  
 5.4 Notices. Any
notice, demand, offer, request, or other communication required or permitted to be given by either Party pursuant to the terms of this Agreement shall sent to the other Party’s address set forth below, and will be deemed to be received: (i)
when placed in the United States Mail, postage pre-paid, if mailed; or (ii) when actually received, if delivered by any other means: 
  

			
	 TXU Energy Retail Company LP
 1601 Bryan Street,
42nd Floor
 Dallas,
Texas 75201
	 	 TXU Electric Delivery Company
 1601 Bryan Street,
42nd Floor
 Dallas,
Texas 75201

		
	 TXU Business Services Company
 1601 Bryan Street,
42nd Floor
 Dallas,
Texas 75201
	 	 Atmos Energy Corporation
 1800 Three Lincoln
Centre
 5430 LBJ Freeway
 Dallas, Texas
75240

		
	 TXU Properties Company
 1601 Bryan Street, 42nd Floor
 Dallas, Texas
75201
	 	 

  

 3 








 5.5 Assignability; Third-Party Beneficiaries. Neither Party may, directly or indirectly, in whole
or in part, whether by operation of law or otherwise, assign or transfer this Agreement, without the other Party’s prior written consent, which consent will not be unreasonably withheld; provided, however, either Party may transfer its
interests, rights and obligations under this Agreement without consent to (i) any parent, (ii) any affiliate, (iii) any individual, bank, trustee, company or corporation as security for any note, notes, bonds or other obligations or securities of
such assignor; or (iv) any party that acquires all or substantially all of the transferring Party’s assets. Each Party shall cause the transferee of any assets necessary for the provision of any Services hereunder or of any documents or records
to which either party may be entitled to access hereunder to be bound by the terms of this Agreement with respect thereto. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives and
permitted successors and assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement. 
  
 5.6 Severability. If any term or other provision of this Agreement is
determined by a nonappealable decision by a court, administrative agency or arbitrator to be invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to either Party. Upon such determination that any term or other
provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the fullest extent possible. 
  
 5.7 Failure Or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of either Party hereto in the exercise of any right hereunder shall impair such right or be construed to be a waiver
of, or acquiescence in, any breach of any representation, warranty, or agreement herein, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right. All rights and remedies
existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available. 
  
 5.8 Amendment. No change or amendment will be made to this Agreement except by a written instrument signed on behalf of each of the Parties hereto.

  
 5.9 Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same Agreement, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties. 
  

 4 








 IN WITNESS WHEREOF, the Parties have signed this Transitional Access Agreement effective as of the
Execution Date. 
  

			
	TXU Electric Delivery Company
		
	By:	 	 /s/  JAMES A. GREER


	Title:	 	 Vice President


	
	TXU Energy Retail Company LP
		
	By:	 	TXU Energy Retail Management Company LLC, its general partner
		
	By:	 	 /s/  ANTHONY HORTON


	Title:	 	 Treasurer and Assistant Secretary


	
	TXU Business Services Company
		
	By:	 	 /s/  ANTHONY HORTON


	Title:	 	 Senior Vice President, Treasurer

 and Assistant Secretary


	
	TXU Properties Company
		
	By:	 	 /s/  ANTHONY HORTON


	Title:	 	 Treasurer and Assistant Secretary


	
	Atmos Energy Corporation
		
	By:	 	 /s/  J. PATRICK REDDY


	Title:	 	 Senior Vice President and Chief Financial Officer




  

 5