EXHIBIT 10.5
EXECUTION COPY
FIFTH AMENDMENT AND WAIVER
This FIFTH AMENDMENT AND WAIVER (this "Amendment") is entered
into effective as of April 28, 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 XXXXXXXX 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 and waive certain provisions of the Credit
Agreement, as more fully set forth herein; and
WHEREAS, the Administrative Agent and the Banks are willing to
agree to such amendments and waivers, 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. The Credit Agreement is hereby amended as
follows:
(a) The definition of "Expiration Date" in Section
1.01, Certain Defined Terms, is hereby amended by deleting the date "April 30,
2003" in subsection (a) and substituting in lieu thereof "March 31, 2004".
(b) The Credit Agreement is hereby amended by adding
a new definition of "Fifth Amendment" immediately after the definition of
'Federal Funds Rate', such new definition to read in its entirety as follows:
"'Fifth Amendment' means the Fifth Amendment and
Waiver, dated as of April 28, 2003, by and among the
parties to this Agreement."
(c) The definition of "Maturity Date" 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:
"'Maturity Date' means June 30, 2004".
(d) The definition of "Net Position Value" 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:
"'Net Position Value' means Borrower's Net Position
valued at the One-Year NYMEX Natural Gas Strip as
quoted by BNP Paribas' Commodity Indexed Transactions
Group, such Net Position Value to be adjusted
initially on the effective date of the Fifth
Amendment and thereafter on the first Business Day of
each January, April, July and October."
(e) Section 1.01, Certain Defined Terms, is hereby
amended by adding a new definition of "One-Year NYMEX Natural Gas Strip"
immediately following the definition of "Offshore Rate Loan", such new
definition to read in its entirety as follows:
"'One-Year NYMEX Natural Gas Strip' means, for any
date of determination, the average of the monthly
NYMEX price of natural gas for the succeeding
twelve-month period."
3. Waiver. The Administrative Agent and each of the Banks
hereby waive any Default or Event of Default which may exist under Section
7.15(c) of the Credit Agreement based solely upon the failure of the ratio of
Total Liabilities (excluding the amount of Subordinated Debt that is included in
the calculation of Tangible Net Worth) to Tangible Net Worth to be equal to or
less than 5.0 to 1.0 for the monthly financial statements of February 2003.
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 7.15(c) of the Credit Agreement
described in this Amendment, which violations have been waived by the
Administrative
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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. As a condition to Administrative
Agent and the Banks entering into this Amendment, the Administrative Agent and
the Banks must have received payment of all fees and expenses owed to them on
the date hereof, and executed originals of each of the following documents and
instruments, in form and substance satisfactory to the Administrative Agent and
the Banks:
(a) this Amendment, duly executed by Borrower and the
Banks;
(b) a Reaffirmation Agreement, reaffirming the Loan
Documents;
(c) a legal opinion of counsel to the Borrower and
counsel to Guarantors each addressed to the Administrative Agent and the Banks,
in form and substance acceptable to the Administrative Agent and the Banks; and
(d) such other documents or certificates as the
Administrative Agent may reasonably request.
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.
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(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 THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[SIGNATURE PAGES 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.
XXXXXXXX MARKETING, L.L.C., a Delaware
limited liability company
By: /s/ XXXXXX X. XXXX
--------------------------------
Name: Xxxxxx X. Xxxx
-------------------------
Title: Senior Vice President
-------------------------
Borrower's Address:
00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Signatures continue on following page.]
[Amendment to Credit Agreement]
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FORTIS CAPITAL CORP., a Connecticut
corporation as Administrative Agent,
Collateral Agent, Issuing Bank and a Bank
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Asst. Vice President
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Signatures continue on following page.]
[Amendment to Credit Agreement]
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BNP PARIBAS, a bank organized under the
laws of France as a Bank, Issuing Bank,
and Documentation Agent
By: /s/ XXXXXX X. XXXX
--------------------------------
Name: Xxxxxx X. Xxxx
-------------------------
Title: Director
-------------------------
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BNP PARIBAS, a bank organized under the
laws of France as a Bank, Issuing Bank,
and Documentation Agent
By: /s/ ZALI WIN
--------------------------------
Name: Zali Win
-------------------------
Title: Director
-------------------------
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Zali Win
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Signatures continue on following page.]
[Amendment to Credit Agreement]
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SOCIETE GENERALE, as a Bank
By: /s/ XXXXXXX XXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------
Title: VP
-------------------------
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SOCIETE GENERALE, as a Bank
By: /s/ XXXXXXXX XXXXXXXX
--------------------------------
Name: Xxxxxxxx Xxxxxxxx
-------------------------
Title: Director
-------------------------
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Signatures continue on following page.]
[Amendment to Credit Agreement]
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NATEXIS BANQUES POPULAIRES, NEW YORK
BRANCH, as a Bank
By: /s/ XXXXX XXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxx
-------------------------
Title: Vice President
-------------------------
1251 Avenue of the Xxxxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATEXIS BANQUES POPULAIRES, NEW YORK
BRANCH, as a Bank
By: /s/ GUILLAUME DE PARSCAU
--------------------------------
Name: Guillaume de Parscau
-------------------------
Title: First Vice President &
-------------------------
Manager Commodities &
-------------------------
Finance Group
-------------------------
1251 Avenue of the Xxxxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Guillaume de Parscau
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Signatures continue on following page.]
[Amendment to Credit Agreement]
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RZB FINANCE LLC, as a Bank
By: /s/ XXXXXXX XXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------
Title: Group Vice President
-------------------------
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By: /s/ XXXXX X. XXXXX
--------------------------------
Name: Xxxxx X. Xxxxx
-------------------------
Title: First Vice President
-------------------------
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Signatures continue on following page.]
[Amendment to Credit Agreement]
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GUARANTORS:
ATMOS ENERGY MARKETING, LLC
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------
Title: Vice President & Treasurer
--------------------------
1800 Three Lincoln Centre
0000 XXX Xxxxxxx
Xxxxxx, XX 00000
ATMOS ENERGY HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------
Title: Vice President & Treasurer
--------------------------
1800 Three Lincoln Centre
0000 XXX Xxxxxxx
Xxxxxx, XX 00000
[Amendment to Credit Agreement]
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