EX-10.3(H) 4 d10753exv10w3xhy.txt SIXTH AMENDMENT TO CREDIT AGREEMENT EXHIBIT 10.3(h) SIXTH AMENDMENT TO CREDIT AGREEMENT, GLOBAL AMENDMENT TO LOAN DOCUMENTS AND WAIVER This SIXTH AMENDMENT TO CREDIT AGREEMENT, GLOBAL AMENDMENT TO LOAN DOCUMENTS AND WAIVER (this "Amendment") is entered into effective as of October 1, 2003, 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 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 each of the Banks agree to waive any Default or Event of Default which may exist under Section 8.02 of the Credit Agreement based solely upon (i) Southern Resources, Inc., a Kentucky corporation ("Southern") and a Subsidiary of the Borrower, merging with and into the Borrower, (ii) Trans Louisiana Industrial Gas Company, Inc., a Delaware corporation ("TLIG") and a Subsidiary of Atmos Energy Marketing, LLC, a Delaware limited liability company ("AEM"), merging with and into AEM, (iii) AEM merging with and into the Borrower, (iv) the existing Guaranty of AEM being concurrently released upon the effective time of such merger, and (v) the Borrower changing its name to "Atmos Energy Marketing, LLC" (the transaction described in the foregoing clauses (i) through (v), the "Restructuring Transaction"). WHEREAS, the Borrower has requested that the Administrative Agent and the Banks agree to amend certain provisions of the Credit Agreement, as more fully set forth herein, in connection with the Restructuring Transaction; and WHEREAS, the Administrative Agent and the Banks are willing to agree to such waivers and amendments, 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, 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. Upon the satisfaction of all of the conditions precedent set forth in Section 5 of this Amendment, the Credit Agreement and the other Loan Documents shall be deemed amended with effect as of October 1, 2003 such that (a) all references in the Credit Agreement and in each other Loan Document to the Borrower as "Woodward Marketing, L.L.C." shall be deleted and replaced with "Atmos Energy Marketing, LLC", (b) the definition of "Guarantors" shall be amended to read: "Guarantor" means Atmos Energy Holdings, Inc." and (c) all references in the Credit Agreement and in each other Loan Document to "Guarantors" shall be deleted and replaced with "Guarantor", and such conforming changes shall be made in such Loan Documents to reflect such change in number. 3. Waiver. The Administrative Agent and each of the Banks hereby waive any Default or Event of Default which may exist under Section 8.02 of the Credit Agreement based solely upon the occurrence of the Restructuring Transaction. 4. 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, other than the violations of Section 8.02 of the Credit Agreement described in this Amendment, which violations have been waived by the Administrative Agent and each of the Banks in Section 3 herein, 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. 5. Conditions Precedent. This Amendment shall become effective, with effect as of October 1, 2003, upon the Administrative Agent and the Banks having received: (a) Payment of all fees and expenses owed to them on October 1, 2003; and 2 (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 Banks; (ii) amended and restated Notes of the Borrower, duly executed by the Borrower; (iii) an amendment to the Guaranty, in form and substance satisfactory to the Administrative Agent and the Lenders; (iv) copies of the resolutions of the members of the Borrower authorizing the transactions contemplated hereby and by the Credit Agreement, certified as of the date hereof by the Secretary of the Borrower, and certifying the names and true signatures of the officers of the Borrower authorized to execute, deliver and perform, as applicable, this Amendment and the other Loan Documents; (v) copies of the documents and instruments entered into in connection with the Restructuring Transaction, certified as of the date hereof by a Secretary of the Borrower; (vi) evidence satisfactory to the Administrative Agent that the Restructuring Transaction shall have occurred; (vii) the certificate of formation and the operating agreement of the Borrower as in effect after giving effect to the Restructuring Transaction, all certified by the Secretary of the Borrower as of the date hereof, together with certificates of existence and good standing for the Borrower from the Secretary of State (or similar, applicable Governmental Authority) of its state of formation and each state where the Borrower is qualified to do business, certified as of the date hereof; (viii) an amendment to the financing statement of the Borrower in favor of the Administrative Agent as secured party for the benefit of the Banks, amending the name of the Borrower as provided herein, and evidence that all other filings or actions needed to maintain the perfection of the security interests granted by the Security Agreements have been completed or due provision has been made therefor; (ix) evidence of insurance required to be maintained by the Borrower under the Credit Agreement, reflecting the Borrower's name as amended herein; and 3 (x) such other documents or certificates as the Administrative Agent may reasonably request. Upon the satisfaction of the foregoing conditions precedent, including without limitation an instrument executed and delivered by the Borrower expressly confirming the Borrower's assumption of all obligations of AEM in respect of the Loan Documents upon the effective time of the merger of AEM into the Borrower, the Guaranty of AEM shall be released without further action of any Person. 6. 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 4 THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES. [SIGNATURE PAGES 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. WOODWARD MARKETING, L.L.C. (TO BE RENAMED ATMOS ENERGY MARKETING, LLC), a Delaware limited liability company By: /s/ Richard C. Alford ---------------------------------- Name: Richard C. 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/ Chad Clark --------------------------------- Name: Chad Clark Title: Vice President 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 K. Chin ---------------------------------- Name: Edward K. Chin Title: Director By: /s/ Zali Win ---------------------------------- Name: Zali Win 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] SOCIETE GENERALE, as a Bank By: /s/ Barbara Paulsen ---------------------------------- Name: Barbara Paulsen Title: Vice President By: /s/ Emmanuel Chesneau ---------------------------------- Name: Emmanuel Chesneau Title: Director 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 Perhad 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/ Frank J.Yautz ------------------------ Name: Frank J. Yautz Title: First Vice President By: /s/ Pearl Geffers ------------------------- Name: Pearl Geffers Title: First 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] CONSENTED TO: ATMOS ENERGY HOLDINGS, INC., GUARANTOR By: /s/ Ronald W. Bahr ------------------------ Name: Ronald W. Bahr Title: Vice President 1800 Three Lincoln Centre 5430 LBJ Freeway Dallas, TX 75240 [Amendment to Credit Agreement]