UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934
March 30, 2005
Date of Report (Date of earliest event reported)
ATMOS ENERGY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
| TEXAS AND VIRGINIA | 1-10042 | 75-1743247 | ||
| (State or Other Jurisdiction of Incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) |
|
1800 THREE LINCOLN CENTRE, 5430 LBJ FREEWAY, DALLAS, TEXAS |
75240 | |
| (Address of Principal Executive Offices) | (Zip Code) |
(972) 934-9227
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
On March 30, 2005, Atmos Energy Marketing, LLC (“AEM”), a Delaware limited liability company, which is wholly-owned by Atmos Energy Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Atmos Energy Corporation, entered into an Uncommitted Second Amended and Restated Credit Agreement (the “credit facility”), with and among Fortis Capital Corp., a Connecticut corporation, as a bank, issuing bank, administrative agent for the banks and collateral agent, BNP Paribas, as a bank, issuing bank and documentation agent for the banks, and a syndicate of five additional banks identified therein. The credit facility replaced AEM’s $250 million credit facility entered into on July 1, 2002 and amended on numerous occasions thereafter, primarily to extend the expiration date, the last of which was March 31, 2005. The credit facility will be used on an uncommitted and fully discretionary basis, to continue to provide loans to AEM and to continue to issue letters of credit for the account of AEM, primarily in order to provide working capital for its natural gas marketing business.
Borrowings made as revolving loans under the credit facility will bear interest at a floating rate equal to a base rate, defined as the higher of .50% per annum above the federal funds rate or the per annum rate of interest established by JP Morgan Chase Bank N.A. as its prime rate at the time of such borrowing plus an applicable margin, which is defined as .50% per annum. Based upon the current prime rate, revolving loans would bear interest at 6.25% per annum. Borrowings made as offshore rate loans will bear interest at a floating rate equal to an offshore rate, which is defined as a rate equal to LIBOR divided by the result of subtracting the Eurodollar reserve percentage (maximum reserve percentage as issued by the Federal Reserve Board of Governors with respect to Eurocurrency funding) from the number one, plus an applicable margin, which will range from 1.375% to 1.75% per annum, depending on the excess tangible net worth of AEM, as defined in the credit facility. Based upon the current LIBOR rate, offshore rate loans would bear interest at 4.37% per annum.
Fees assessed on letters of credit issued by the banks will equal to the greater of $700 or an applicable margin, which will range from 1.125% to 2.00% per annum, depending on the excess tangible net worth of AEM and whether the letters of credit are swap-related standby letters of credit. Based upon the current level of excess tangible net worth of AEM, fees for letters of credit that are not swap-related would be assessed at a rate of 1.25% per annum. With respect to other fees, upon the closing of the credit facility on March 30, 2005, AEM paid a structuring fee to BNP Paribas and Fortis in the total amount of $70,000 (50% to each bank) and a total of $510,500 in fees to the banks as a whole, based on each bank’s portion of the total uncommitted line of $250 million, ranging from .60% at $10 million to .28% at $75 million. AEM must also pay agent fees of $37,500 each quarter.
The credit facility will expire on June 30, 2006, at which time all outstanding amounts under the credit facility will be due and payable. The credit facility contains usual and customary covenants for transactions of this type, including covenants limiting liens, additional indebtedness and mergers. In addition, AEM will be required to not exceed a maximum ratio of total liabilities to tangible net worth of 5.00 to 1 or a maximum cumulative loss from March 30, 2005 ranging from $4 million to $10 million, along with maintaining minimum levels of net working capital ranging from $20 million to $50 million and tangible net worth ranging from $21 million to $51 million, as all such terms are defined in the credit facility, depending on the total amount of borrowing elected from time to time by AEM.
In the event of a default by AEM under the credit facility, including cross-defaults relating to specified other indebtedness of AEM having a principal amount of more than $250,000 in the aggregate, the administrative agent may, and shall upon the request of a certain minimum number of the banks, terminate the obligations of the banks to make loans or issue letters of credit under the credit facility, declare the amount outstanding, including all accrued interest and unpaid fees, payable immediately, and enforce any and all rights and interests created and existing under the credit facility documents, including, without limitation, all rights of set-off and all other rights available under the law.
With respect to the other parties to the credit facility, AEM has or may have had customary banking relationships based on the provision of a variety of financial services, including the purchase and sale of financial instruments traded on various commodity exchanges. These instruments include, but are not limited to, NYMEX futures and options contracts and over-the-counter natural gas hedges, none of which are material individually or in the aggregate with respect to any individual party. A copy of the credit facility is attached hereto as Exhibit 10.1 and is incorporated herein by reference. The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the credit facility.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information described in Item 1.01 above is hereby incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
| (c) | Exhibits. |
| 10.1 | Uncommitted Second Amended and Restated Credit Agreement, dated as of March 30, 2005, among Atmos Energy Marketing, LLC, Fortis Capital Corp., a Connecticut corporation, as a Bank, Issuing Bank, Administrative Agent for the Banks and Collateral Agent, BNP Paribas, a bank organized under the laws of France, as a Bank, Issuing Bank, and Documentation Agent and a syndicate of five additional Banks identified therein |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
ATMOS ENERGY CORPORATION |
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|
(Registrant) |
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DATE: April 5, 2005 |
By: |
/s/ LOUIS P. GREGORY |
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Louis P. Gregory |
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|
Senior Vice President and General Counsel |
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INDEX TO EXHIBITS
Exhibit 10.1
UNCOMMITTED SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated to be Effective as of March 30, 2005
among
ATMOS ENERGY MARKETING, LLC,
as Borrower,
FORTIS CAPITAL CORP.,
as Administrative Agent, Collateral Agent, an Issuing Bank, and a Bank,
BNP PARIBAS,
as Documentation Agent, an Issuing Bank, and a Bank
and
THE OTHER FINANCIAL INSTITUTIONS WHICH
MAY BECOME PARTIES HERETO
THIS AGREEMENT PROVIDES FOR AN
UNCOMMITTED FACILITY WITH A DEMAND FEATURE.
ALL ADVANCES AND ISSUANCES OF LETTERS OF CREDIT
ARE DISCRETIONARY ON THE PART OF THE BANKS
IN THEIR SOLE AND ABSOLUTE DISCRETION.
THE BANKS MAY MAKE DEMAND FOR PAYMENT AT ANY TIME
IN THEIR SOLE AND ABSOLUTE DISCRETION.
UNCOMMITTED SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This UNCOMMITTED SECOND AMENDED AND RESTATED CREDIT AGREEMENT (the “Agreement”) is entered into effective as of March 30, 2005, among ATMOS ENERGY MARKETING, LLC, a Delaware limited liability company (the “ Borrower ”), FORTIS CAPITAL CORP., a Connecticut corporation (“ Fortis ”), as a Bank, as an Issuing Bank, and as Administrative Agent for the Banks (in such capacity, the “ Administrative Agent ”), and as Collateral Agent, BNP PARIBAS, a bank organized under the laws of France (“ BNP Paribas ”), as a Bank, as an Issuing Bank, and as Documentation Agent (together with the Administrative Agent, the “ Agents ”), and each other financial institution which may become a party hereto (collectively the “ Banks ”).
WHEREAS, the Borrower, the Agents, the Issuing Banks and the Banks entered into that certain Uncommitted Amended and Restated Credit Agreement dated as of July 1, 2002 (as amended through the date hereof, the “ Original Credit Agreement ”) with respect to an uncommitted facility of up to $250,000,000, including an uncommitted letter of credit facility.
WHEREAS, the Borrower, the Agents, the Issuing Banks and the Banks desire to amend and restate the Original Credit Agreement so that, from time to time, the Banks, on an uncommitted and fully discretionary basis, continue to make loans to the Borrower and continue to issue Letters of Credit for the account of the Borrower in order to provide working capital to the Borrower, to facilitate the Borrower’s purchases of natural gas in the ordinary course of business, to secure swap counterparties for out-of-the-money swap obligations, and for such other purposes set forth herein. The Banks have indicated their willingness to consider to continue to lend such amounts and to consider to continue to issue and participate in such Letters of Credit on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms . The following terms have the following meanings:
“ Account ” has the meaning stated in the New York Uniform Commercial Code.
“ Account Debtor ” means a Person who is obligated to the Borrower under an Account of the Borrower.
“ Acquisition ” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the capital stock, partnership interests or equity of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary); provided , however , that the relevant Borrower or the Subsidiary is the surviving entity.
“ Activation Period ” means the period which commences within a reasonable period of time not to exceed two Business Days after receipt by Bank of America, N.A. of a written notice from Fortis in the form of Exhibit B to the Three Party Agreement Relating to Lockbox Services (With Activation) dated as of April 15, 2002 among the Borrower, Fortis and Bank of America, N.A.
“ Adjusted Pro Rata Share ” means, as to any Bank at any particular time, the percentage equivalent (expressed as a decimal, rounded to the ninth decimal place) at such time of (a) an amount equal to such Bank’s Effective Amount plus, in the case of any Swap Bank, the amount of advances made in excess of the Borrowing Base Advance Cap to fund Obligations of the Borrower under Swap Contracts, divided by (b) the combined total of the Effective Amount of all the Banks plus, in the case of any Swap Bank, the amount of advances made in excess of the Borrowing Base Advance Cap to fund Obligations of the Borrower under Swap Contracts.
“ Administrative Agent ” means Fortis in its capacity as administrative agent for the Banks hereunder, and any successor agent arising under Section 10.09 .
“ Administrative Agent’s Payment Office ” means the address for payments set forth on Schedule 11.02 hereto in relation to the Administrative Agent, or such other address as the Administrative Agent may from time to time specify.
“ Advance Maturity Date ” means the maturity date of advances made hereunder which for Base Rate Loans will be the earliest to occur of (a) written demand by any Agent, or (b) 60 days from the date of the Borrowing, and for Offshore Rate Loans will be the earliest to occur of (i) written demand by any Agent, or (ii) 60 days from the date of the Borrowing, or (iii) the end of the Interest Period for such Offshore Rate Loan.
“ Affiliate ” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise.
“ Agents ” means the Administrative Agent, the Collateral Agent and the Documentation Agent.
“ Agent-Related Persons ” means the Administrative Agent, the Collateral Agent and the Documentation Agent, together with their respective Affiliates and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
“ Agreement ” means this Credit Agreement.
“ Applicable Margin ” means (i) with respect to Base Rate Loans, .50% per annum and (ii) with respect to Offshore Rate Loans and Letters of Credit, during the period from the Closing Date until delivery pursuant to Sections 7.01(c) of the Borrower’s consolidated financial statements for the calendar month ended January 31, 2005, 1.75% per annum in the case of Offshore Rate Loans, 1.50% per annum in the case of Letters of Credit (other than Swap-Related Standby Letters of Credit) and 2.00% in the case of Swap-Related Standby Letters of Credit, and (ii) thereafter, for any day, the applicable rate per annum set forth below, based upon the Excess Tangible Net Worth determined as the last day of the most recently ended fiscal quarter:
For the purposes of the foregoing, (a) the Excess Tangible Net Worth shall be determined based upon the Borrower’s most recent consolidated financial statements delivered pursuant to Section 7.01(c), and each