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
November 1, 2007
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
(Registrants 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 November 1, 2007, Atmos Energy Corporation (the Company) entered into a $300 million Revolving Credit Agreement (364 Day Facility) (the credit facility), with SunTrust Bank, as Administrative Agent, Wachovia Bank, N.A. as Syndication Agent and Bank of America, N.A., JPMorgan Chase Bank, N.A., and the Royal Bank of Scotland plc as Co-Documentation Agents, and a syndicate of 14 lenders identified therein . The credit facility replaces the $300 million Revolving Credit Agreement (364 Day Facility) with SunTrust Bank, as Administrative Agent, Wachovia Bank, N.A. as Syndication Agent and Bank of America, N.A., JPMorgan Chase Bank, N.A., and the Royal Bank of Scotland plc as Co-Documentation Agents, and a syndicate of 15 lenders identified therein, which was entered into on November 7, 2006 and was due to expire November 5, 2007. The credit facility will continue to supplement the Companys $600 million working capital facility (5 Year Facility) entered into on December 15, 2006 and contains substantially the same terms as both the previous 364 day facility and the 5 Year Facility. The credit facility will be used to continue to provide up to $300 million of additional working capital to the Company.
Borrowings under the credit facility will bear interest at a rate dependent on the Companys credit ratings at the time of such borrowing and based, at the Companys election, on a base rate or LIBOR. The base rate is defined as the higher of (i) the per annum rate of interest established by SunTrust Bank as its prime lending rate at the time of such borrowing or (ii) the Federal Funds Rate, as in effect at the time of borrowing, plus one-half of one percent (0.50%) per annum. Based upon the current prime rate charged by SunTrust Bank and the Companys current credit ratings, borrowings at the base rate would bear interest at 7.50% per annum. In the case of borrowings based on LIBOR, an applicable margin would be added to the rate, ranging from 0.30% to 0.75% per annum, based on the Companys then current credit ratings. Based on the Companys current credit ratings, borrowings based on LIBOR would bear interest at LIBOR for the applicable interest period plus an applicable margin of 0.45%. Based upon the current LIBOR for a 30 day period, borrowings at LIBOR would bear interest at 4.6875% per annum, plus an applicable margin of 0.45%, or an effective total interest rate of 5.1375% per annum.
The Company must also pay commitment fees quarterly in arrears on the average daily unused portion of the credit facility at rates ranging from 0.055% to 0.110% per annum, dependent on the Companys credit ratings. Based upon the Companys current credit ratings, the commitment fee would be at the rate of 0.080%. The Company must also pay utilization fees, quarterly in arrears, on the principal amount of all outstanding loans, but only to the extent that the aggregate principal amount of such outstanding loans is equal to or greater than 50% of the aggregate commitments of the lenders. The utilization fees will be at rates ranging from 0.050% to 0.100% per annum of such excess amount, dependent on the Companys credit ratings. Based upon the Companys current credit ratings, the utilization fee would be at the rate of 0.050%.
The credit facility will expire on October 30, 2008, 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, substantial asset sales and mergers. In addition, the credit facility provides that during the term of the facility, the Companys debt to capitalization ratio as of the last day of each of its fiscal quarters shall be less than or equal to 0.70 to 1.00, excluding from the calculation of debt (i) any pension and other post-retirement benefits liability adjustments recorded in accordance with generally accepted accounting principles; and (ii) an amount of hybrid securities, as defined in the credit facility (generally, deferrable interest subordinated debt with a maturity of at least 20 years), not to exceed a total of 15% of total capitalization.
In the event of a default by the Company under the credit facility, including cross-defaults relating to specified other indebtedness of the Company, SunTrust Bank may, upon the consent of a certain minimum number of lenders, and shall, upon the request and direction of such lenders, terminate the commitments made 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. For certain events of default relating to insolvency, bankruptcy or receivership, the commitments are automatically terminated and the amounts outstanding automatically become payable immediately.
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With respect to the other parties to the credit facility, most of whom are also parties to the 5 Year Facility discussed above, the Company also has or may have had customary banking relationships based on the provision of a variety of financial services, including pension fund, cash management, investment banking, and equipment financing and leasing services, 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 1.02. | Termination of a Material Definitive Agreement. |
On November 1, 2007, upon the execution of the credit facility described in Item 1.01 above, the Company terminated its $300 million Revolving Credit Agreement (364 Day Facility) entered into on November 7, 2006, with SunTrust Bank, as Administrative Agent, Wachovia Bank, N.A. as Syndication Agent and Bank of America, N.A., JPMorgan Chase Bank, N.A., and the Royal Bank of Scotland plc as Co-Documentation Agents, and a syndicate of 15 lenders identified therein. The Company incurred no early termination penalties as a result of such termination. With respect to the other parties to such terminated credit facility, the Company has or may have had customary banking relationships based on the provision of a variety of financial services, including pension fund, cash management, investment banking, and equipment financing and leasing services, none of which are material individually or in the aggregate with respect to any individual party.
| Item 2.02. | Results of Operations and Financial Condition. |
On Wednesday, November 7, 2007, the Company announced in a news release its financial results for the fourth quarter and full fiscal year ended September 30, 2007 and that certain of its officers would discuss such financial results in a conference call on Thursday, November 8, 2007 at 9:00 a.m. EST. In the release, the Company also announced that the conference call would be webcast live and that slides for the webcast would be available on its Web site for all interested parties.
A copy of the news release is furnished as Exhibit 99.1. The information furnished in this Item 2.02 and in Exhibit 99.1 attached hereto shall not be deemed to be filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section, nor shall such information be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act.
| 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 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
On November 7, 2007, Richard W. Douglas was elected to the Board of Directors of the Company, effective November 8, 2007, with his term expiring at the 2008 annual meeting of shareholders on February 6, 2008. The Board of Directors also appointed Mr. Douglas to serve as a member of the Human Resources Committee as well as the Work Session/Annual Meeting Committee, also effective November 8, 2007.
A copy of a news release issued on November 7, 2007 announcing Mr. Douglas election to the Board of Directors is filed herewith as Exhibit 99.2 and is incorporated herein into this Item 5.02 by reference.
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| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| 10.1 | Revolving Credit Agreement (364 Day Facility), dated as of November 1, 2007, among Atmos Energy Corporation, the Lenders from time to time parties thereto, SunTrust Bank, as Administrative Agent, Wachovia Bank, N.A. as Syndication Agent, and Bank of America, N.A., JPMorgan Chase Bank, N.A., and the Royal Bank of Scotland plc as Co-Documentation Agents | |
| 99.1 | News Release issued by Atmos Energy Corporation dated November 7, 2007 | |
| 99.2 | News Release issued by Atmos Energy Corporation dated November 7, 2007 | |
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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 (Registrant) |
||||||
| DATE: November 7, 2007 | By: | /s/ LOUIS P. GREGORY | ||||
| Louis P. Gregory | ||||||
|
Senior Vice President and General Counsel |
||||||
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INDEX TO EXHIBITS
|
Exhibit Number |
Description |
|
| 10.1 | Revolving Credit Agreement (364 Day Facility), dated as of November 1, 2007, among Atmos Energy Corporation, the Lenders from time to time parties thereto, SunTrust Bank, as Administrative Agent, Wachovia Bank, N.A. as Syndication Agent, and Bank of America, N.A., JPMorgan Chase Bank, N.A., and the Royal Bank of Scotland plc as Co-Documentation Agents | |
| 99.1 | News Release issued by Atmos Energy Corporation dated November 7, 2007 | |
| 99.2 | News Release issued by Atmos Energy Corporation dated November 7, 2007 | |
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EXHIBIT 10.1
Execution Version
REVOLVING CREDIT AGREEMENT
(364 Day Facility)
dated as of November 1, 2007
among
ATMOS ENERGY CORPORATION,
as Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
SUNTRUST BANK,
as Administrative Agent,
WACHOVIA BANK, N.A.
as Syndication Agent,
and
BANK OF AMERICA, N.A., JPMORGAN CHASE BANK, N.A., AND THE ROYAL
BANK OF SCOTLAND PLC
as Co-Documentation Agents
SUNTRUST ROBINSON HUMPHREY, INC.
and
WACHOVIA CAPITAL MARKETS, LLC,
As Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
| Page | ||||
| ARTICLE I DEFINITIONS; CONSTRUCTION | 1 | |||
| Section 1.1. | Definitions | 1 | ||
| Section 1.2. | Classifications of Loans and Borrowings | 15 | ||
| Section 1.3. | Accounting Terms and Determination | 15 | ||
| Section 1.4. | Terms Generally | 15 | ||
| ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS | 16 | |||
| Section 2.1. | General Description of Facilities | 16 | ||
| Section 2.2. | Loans | 16 | ||
| Section 2.3. | Procedure for Borrowings | 16 | ||
| Section 2.4. | Funding of Borrowings | 17 | ||
| Section 2.5. | Interest Elections | 17 | ||
| Section 2.6. | Optional Reduction and Termination of Commitments | 18 | ||
| Section 2.7. | Repayment of Loans | 19 | ||
| Section 2.8. | Evidence of Indebtedness | 19 | ||
| Section 2.9. | Optional Prepayments | 19 | ||
| Section 2.10. | Interest on Loans | 20 | ||
| Section 2.11. | Fees | 20 | ||
| Section 2.12. | Computation of Interest and Fees | 21 | ||
| Section 2.13. | Inability to Determine Interest Rates | 21 | ||
| Section 2.14. | Illegality | 22 | ||
| Section 2.15. | Increased Costs | 22 | ||
| Section 2.16. | Funding Indemnity | 23 | ||
| Section 2.17. | Taxes | 23 | ||
| Section 2.18. | Payments Generally; Pro Rata Treatment; Sharing of Set-offs | 25 | ||
| Section 2.19. | Mitigation of Obligations | 26 | ||
| Section 2.20. | Replacement of Lenders | 27 | ||
| ARTICLE III CONDITIONS PRECEDENT TO LOANS | 27 | |||
| Section 3.1. | Conditions To Effectiveness | 27 | ||
| Section 3.2. | Each Credit Event | 29 | ||
| Section 3.3. | Delivery of Documents | 29 | ||
| ARTICLE IV REPRESENTATIONS AND WARRANTIES | 29 | |||
| Section 4.1. | Organization and Good Standing | 29 | ||
| Section 4.2. | Due Authorization | 30 | ||
| Section 4.3. | No Conflicts | 30 | ||
| Section 4.4. | Consents | 30 | ||
| Section 4.5. | Enforceable Obligations | 30 | ||
| Section 4.6. | Financial Condition | 30 | ||
| Section 4.7. | Intentionally Omitted | 31 | ||
| Section 4.8. | No Default | 31 | ||
| Section 4.9. | Intentionally Omitted | 31 | ||
| Section 4.10. | Taxes | 31 | ||
| Section 4.11. | Compliance with Law | 31 | ||
| Section 4.12. | Material Agreements | 31 | ||
| Section 4.13. | ERISA | 31 | ||
| Section 4.14. | Use of Proceeds | 32 | ||
| Section 4.15. | Government Regulation | 32 | ||
| Section 4.16. | Disclosure | 33 | ||
| Section 4.17. | Intentionally Omitted | 33 | ||
| Section 4.18. | Insurance | 33 | ||
| Section 4.19. | Franchises, Licenses, Etc. | 33 | ||
| Section 4.20. | Secured Indebtedness | 33 | ||
| Section 4.21. | Subsidiaries | 33 | ||
| ARTICLE V AFFIRMATIVE COVENANTS | 34 | |||
| Section 5.1. | Information Covenants | 34 | ||
| Section 5.2. | Debt to Capitalization Ratio | 36 | ||
| Section 5.3. | Preservation of Existence, Franchises and Assets | 36 | ||
| Section 5.4. | Books and Records | 36 | ||
| Section 5.5. | Compliance with Law | 36 | ||
| Section 5.6. | Payment of Taxes and Other Claims | 36 | ||
| Section 5.7. | Insurance | 37 | ||
| Section 5.8. | Use of Proceeds | 37 | ||
| Section 5.9. | Audits/Inspections | 37 | ||
| ARTICLE VI NEGATIVE COVENANTS | 37 | |||
| Section 6.1. | Nature of Business | 37 | ||
| Section 6.2. | Consolidation and Merger | 38 | ||
| Section 6.3. | Sale or Lease of Assets | 38 | ||
| Section 6.4. | Arms-Length Transactions | 38 | ||
| Section 6.5. | Fiscal Year; Organizational Documents | 38 | ||
| Section 6.6. | Liens | 38 | ||
| ARTICLE VII EVENTS OF DEFAULT | 40 | |||
| Section 7.1. | Events of Default | 40 | ||
| Section 7.2. | Acceleration; Remedies | 42 | ||
| Section 7.3. | Allocation of Payments After Event of Default | 42 | ||
| ARTICLE VIII THE ADMINISTRATIVE AGENT | 43 | |||
| Section 8.1. | Appointment of Administrative Agent | 43 | ||
| Section 8.2. | Nature of Duties of Administrative Agent | 44 | ||
| Section 8.3. | Lack of Reliance on the Administrative Agent | 44 | ||
| Section 8.4. | Certain Rights of the Administrative Agent | 45 | ||
| Section 8.5. | Reliance by Administrative Agent | 45 | ||
| Section 8.6. | The Administrative Agent in its Individual Capacity | 45 | ||
| Section 8.7. | Successor Administrative Agent | 45 | ||
| Section 8.8. | Authorization to Execute other Credit Documents | 46 | ||
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| Section 8.9. | Co-Documentation Agents; Syndication Agent | 46 | ||
| ARTICLE IX MISCELLANEOUS | 46 | |||
| Section 9.1. | Notices | 46 | ||
| Section 9.2. | Waiver; Amendments | 48 | ||
| Section 9.3. | Expenses; Indemnification | 49 | ||
| Section 9.4. | Successors and Assigns | 51 | ||
| Section 9.5. | Governing Law; Jurisdiction; Consent to Service of Process | 54 | ||
| Section 9.6. | WAIVER OF JURY TRIAL | 55 | ||
| Section 9.7. | Right of Setoff | 55 | ||
| Section 9.8. | Counterparts; Integration | 55 | ||
| Section 9.9. | Survival | 56 | ||
| Section 9.10. | Severability | 56 | ||
| Section 9.11. | Confidentiality | 56 | ||
| Section 9.12. | Interest Rate Limitation | 57 | ||
| Section 9.13. | Waiver of Effect of Corporate Seal | 57 | ||
| Section 9.14. | Patriot Act | 57 | ||
| Section 9.15. | Location of Closing | 57 | ||
| Schedules | ||||
|
Schedule I |
| Applicable Margins and Applicable Percentages | ||
|
Schedule II |
| Commitment Amounts | ||
|
Schedule 4.20 |
| Secured Indebtedness | ||
|
Schedule 4.21 |
| Subsidiaries | ||
| Exhibits | ||||
|
Exhibit A |
| Form of Note | ||
|
Exhibit B |
| Form of Assignment and Acceptance | ||
|
Exhibit 2.3 |
| Form of Notice of Borrowing | ||
|
Exhibit 2.5 |
| Form of Notice of Continuation/Conversion | ||
|
Exhibit 3.1(b)(iv) |
| Form of Secretarys Certificate | ||
|
Exhibit 3.1(b)(vii) |
| Form of Officers Certificate | ||
|
Exhibit 5.1(c) |
| Form of Compliance Certificate | ||
iii
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this Agreement ) is made and entered into as of November 1, 2007, by and among ATMOS ENERGY CORPORATION, a Texas and Virginia corporation (the Borrower ), the several banks and other financial institutions and lenders from time to time party hereto (the Lenders ), and SUNTRUST BANK, in its capacity as administrative agent for the Lenders (the Administrative Agent ).
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders establish in favor of the Borrower a $300,000,000 revolving credit facility having a scheduled term of 364 days;
WHEREAS , subject to the terms and conditions of this Agreement, the Lenders, to the extent of their respective Commitments as defined herein, are willing severally to establish the requested revolving credit facility in favor of the Borrower.
NOW, THEREFORE , in consideration of the premises and the mutual covenants herein contained, the Borrower, the Lenders and the Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1. Definitions . In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (to be equally applicable to both the singular and plural forms of the terms defined):
Adjusted LIBO Rate shall mean, with respect to each Interest Period for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar Reserve Percentage.
Administrative Questionnaire shall mean, with respect to each Lender, an administrative questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative Agent duly completed by such Lender.
Affiliate shall mean, as to any Person, any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power (a) to vote 10% or more of the securities having ordinary voting power for the election of directors of such other Person or (b) to direct or cause direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.
Aggregate Commitment Amount shall mean the aggregate principal amount of the Aggregate Commitments from time to time. On the Closing Date, the Aggregate Commitment Amount equals $300,000,000.
Aggregate Commitments shall mean, collectively, all Commitments of all Lenders at any time outstanding.
Applicable Commitment Fee Percentage shall mean, as of any date, with respect to the Commitment Fee as of any date, the percentage per annum determined by reference to the applicable Rating Category as set forth on Schedule I ; provided , that a change in the Applicable Commitment Fee Percentage resulting from a change in the Rating Category shall be effective on the day on which either rating agency changes its rating and shall continue until the day prior to the day that a further change becomes effective. Notwithstanding the foregoing, the Applicable Commitment Fee Percentage for the Commitment Fee from the Closing Date until the first change in the applicable Rating Category after the Closing Date shall be at Level III as set forth on Schedule I .
Applicable Lending Office shall mean, for each Lender and for each Type of Loan, the Lending Office of such Lender (or an Affiliate of such Lender) designated for such Type of Loan in the Administrative Questionnaire submitted by such Lender or such other office of such Lender (or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.
Applicable Margin shall mean, as of any date, the percentage per annum determined by reference to the applicable Rating Category from time to time in effect as set forth on Schedule I ; provided , that a change in the Applicable Margin resulting from a change in the Rating Category shall be effective on the day on which any rating agency changes its rating and shall continue until the day prior to the day that a further change becomes effective. Notwithstanding the foregoing, the Applicable Margin from the Closing Date until the first change in the applicable Rating Category after the Closing Date shall be at Level III as set forth on Schedule I .
Applicable Utilization Fee Percentage shall mean, as of any date, with respect to the Utilization Fee as of any date, the percentage per annum determined by reference to the applicable Rating Category as set forth on Schedule I ; provided , that a change in the Applicable Utilization Fee Percentage resulting from a change in the Rating Category shall be effective on the day on which either rating agency changes its rating and shall continue until the day prior to the day that a further change becomes effective. Notwithstanding the foregoing, the Applicable Utilization Fee Percentage for the Utilization Fee from the Closing Date until the first change in the applicable Rating Category after the Closing Date shall be at Level III as set forth on Schedule I .
Approved Fund shall mean any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
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Assignment and Acceptance shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.4(b) ) and accepted by the Administrative Agent, in the form of Exhibit B attached hereto or any other form approved by the Administrative Agent.
Availability Period shall mean the period from the Closing Date to the Commitment Termination Date.
Bankruptcy Code shall mean the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.
Base Rate shall mean the higher of (i) the per annum rate which the Administrative Agent publicly announces from time to time to be its prime lending rate, as in effect from time to time, and (ii) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%). The Administrative Agents prime lending rate is a reference rate and does not necessarily represent the lowest or best rate charged to customers. The Administrative Agent may make commercial loans or other loans at rates of interest at, above or below the Administrative Agents prime lending rate. Each change in the Administrative Agents prime lending rate shall be effective from and including the date such change is publicly announced as being effective.
Borrowing shall mean a borrowing consisting of Loans of the same Type, made, converted or continued on the same date and in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
Business Day shall mean (i) any day other than a Saturday, Sunday or other day on which commercial banks in Atlanta, Georgia and New York, New York are authorized or required by law to close and (ii) if such day relates to a Borrowing of, a payment or prepayment of principal or interest on, a conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with respect to any of the foregoing, any day on which dealings in Dollars are carried on in the London interbank market.
Capital Stock shall mean (a) in the case of a corporation, all classes of capital stock of such corporation, (b) in the case of a partnership, partnership interests (whether general or limited), (c) in the case of a limited liability company, membership interests and (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
Change in Law shall mean (i) the adoption of any applicable law, rule or regulation after the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any change in the interpretation or application thereof, by any Governmental Authority after the date of this Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office) (or for purposes of Section 2.15(b ), by such Lenders parent corporation, if applicable) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.
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Change of Control shall mean either of the following events:
(a) any person or group (within the meaning of Section 13(d) or 14(d) of the Exchange Act) has become, directly or indirectly, the beneficial owner (as defined in Rules 13d-3 (other than subsection (d) thereof) and 13d-5 under the Exchange Act), by way of merger, consolidation or otherwise of 40% or more of the voting power of the Borrower on a fully-diluted basis, after giving effect to the conversion and exercise of all outstanding warrants, options and other securities of the Borrower convertible into or exercisable for voting stock of the Borrower (whether or not such securities are then currently convertible or exercisable); or
(b) during any period of two consecutive calendar years, individuals who at the beginning of such period constituted the board of directors of the Borrower together with any new members of such board of directors whose elections by such board of directors or whose nomination for election by the stockholders of the Borrower was approved by a vote of a majority of the members of such board of directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved cease for any reason to constitute a majority of the directors of the Borrower then in office.
Charges shall have the meaning set forth in Section 9.12 .
Closing Date shall mean the date on which the conditions precedent set forth in Section 3.1 and Section 3.2 have been satisfied or waived in accordance with Section 9.2 .
Code shall mean the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder.
Commitment shall mean, with respect to each Lender, the obligation of such Lender to make Loans to the Borrower in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on Schedule II , or in the case of a Person becoming a Lender after the Closing Date through an assignment of an existing Commitment, the amount of the assigned Commitment as provided in the Assignment and Acceptance executed by such Person as an assignee, as the same may be increased or deceased pursuant to terms hereof.
Commitment Fee shall have the meaning set forth in Section 2.11(b) .
Commitment Termination Date shall mean the earliest of (i) October 30, 2008, (ii) the date on which the Commitments are terminated pursuant to Section 2.6 and (iii) the date on which all amounts outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise).
Compliance Certificate shall mean a certificate from a Financial Officer of the Borrower in the form of, and containing the certifications set forth in, the certificate attached hereto as Exhibit 5.1(c) .
Consolidated Capitalization shall mean, without duplication, the sum of (a) all of the shareholders equity or net worth of the Borrower and its Subsidiaries on a consolidated
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basis, as determined in accordance with GAAP plus (b) the aggregate principal amount of Preferred Securities plus (c) the aggregate Minority Interests in Subsidiaries plus (d) Consolidated Funded Debt.
Consolidated Funded Debt shall mean, without duplication, the sum of (a) all indebtedness of the Borrower and its Subsidiaries for borrowed money, (b) all purchase money indebtedness of the Borrower and its Subsidiaries (other than trade accounts payable), (c) the principal portion of all obligations of the Borrower and its Subsidiaries under capital leases, (d) all commercial letters of credit and all performance and standby letters of credit issued or bankers acceptances created for the account of the Borrower or one of its Subsidiaries, including, without duplication, all unreimbursed draws thereunder, (e) all Guaranty Obligations of the Borrower and its Subsidiaries with respect to funded indebtedness of another Person of the types listed in clauses (a) through (d), (f) all indebtedness of another entity secured by a Lien on any property of the Borrower or any of its Subsidiaries whether or not such indebtedness has been assumed by the Borrower or any of its Subsidiaries, (g) all indebtedness of any partnership or unincorporated joint venture to the extent the Borrower or one of its Subsidiaries is legally obligated with respect thereto, net of any assets of such partnership or joint venture and in the case of the Capital Stock of such partnership or joint venture being held by a Subsidiary, limited to the net worth of such Subsidiary, (h) all obligations of the Borrower and its Subsidiaries to advance or provide funds or other support for the payment or purchase of funded indebtedness (including, without limitation, maintenance agreements, comfort letters or similar agreements or arrangements) (other than as may be given in respect of Atmos Energy Marketing, LLC (AEM)) and (i) the principal balance outstanding under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product of the Borrower or one of its Material Subsidiaries where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP; provided , however , that (x) neither the indebtedness of AEM incurred in connection with the purchase of gas by AEM for resale to the Borrower nor the guaranty by the Borrower or one of its Subsidiaries of such indebtedness shall be included in this definition if such indebtedness has been outstanding for less than two months from the date of its incurrence by AEM and (y) for the purposes of calculating the Debt to Capitalization Ratio, Consolidated Funded Debt will exclude (to the extent otherwise included in Consolidated Funded Debt) (i) any pension and other post-retirement benefits liability adjustments recorded in accordance with GAAP and (ii) an amount of Hybrid Securities not to exceed a total of 15% of Consolidated Capitalization.
Consolidated Net Property shall mean the Fixed Assets less, without duplication, the amount of accumulated depreciation and amortization attributable thereto.
Contractual Obligation of any Person shall mean any provision of any security issued by such Person or of any agreement, instrument or undertaking under which such Person is obligated or by which it or any of the property in which it has an interest is bound.
Credit Documents shall mean, collectively, this Agreement, the Notes (if any), the Fee Letter, all Notices of Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates and any and all other instruments, agreements, documents and writings executed in connection with any of the foregoing.
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Credit Exposure shall mean, with respect to any Lender at any time, the outstanding principal amount of such Lenders Loans.
Debt to Capitalization Ratio shall mean the ratio of (a) Consolidated Funded Debt to (b) Consolidated Capitalization.
Default shall mean any act, condition or event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
Default Interest shall have the meaning set forth in Section 2.10 ( b ).
Dollar(s) and the sign $ shall mean lawful money of the United States of America.
Environmental Laws shall mean any current or future legal requirement of any Governmental Authority pertaining to (a) the protection of health, safety, and the indoor or outdoor environment, (b) the conservation, management, or use of natural resources and wildlife, (c) the protection or use of surface water and groundwater or (d) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or handling of, or exposure to, any hazardous or toxic substance or material or (e) pollution (including any release to land surface water and groundwater) and includes, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq. , Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq. , Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801 et seq. , Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et seq. , Oil Pollution Act of 1990, 33 USC 2701 et seq. , Emergency Planning and Community Right-to-Know Act of 1986, 42 USC 11001 et seq. , National Environmental Policy Act of 1969, 42 USC 4321 et seq. , Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et seq. , any analogous implementing or successor law, and any amendment, rule, regulation, order, or directive issued thereunder.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto, as interpreted by the rules and regulations thereunder, all as the same may be in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.
ERISA Affiliate shall mean an entity, whether or not incorporated, which is under common control with the Borrower or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA, or is a member of a group which includes the Borrower or any of its Subsidiaries and which is treated as a single employer under Sections 414(b), (c), (m), or (o) of the Code.
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Eurodollar when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.
Eurodollar Reserve Percentage shall mean the aggregate of the maximum reserve percentages (including, without limitation, any emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upwards to the next 1/100 th of 1%) in effect on any day to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any Governmental Authority succeeding to any of its principal functions) with respect to eurocurrency funding (currently referred to as eurocurrency liabilities under Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
Event of Default shall have the meaning provided in Section 7.1 .
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Excluded Taxes shall mean with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which any Lender is located and (c) in the case of a Foreign Lender, any withholding tax that (i) is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time that such Foreign Lender designates a new lending office, other than taxes that have accrued prior to the designation of such lending office that are otherwise not Excluded Taxes, and (iii) is attributable to such Foreign Lenders failure to comply with Section 2.17(e) .
Existing Credit Agreement shall mean that certain Revolving Credit Agreement, dated as of November 7, 2006, among the Borrower, the lenders identified therein and SunTrust Bank, as administrative agent, as amended, modified, supplemented or replaced from time to time.
Federal Funds Rate shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100 th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System arranged by Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent.
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Fee Letter shall mean that certain fee letter, dated as of October 16, 2007, executed by SunTrust Bank and SunTrust Robinson Humphrey, Inc. and accepted by the Borrower.
Financial Officer shall mean any one of the chief financial officer, the controller or the treasurer of the Borrower.
Fitch shall mean Fitch Ratings Ltd., or any successor or assignee of the business of such company in the business of rating securities.
Fixed Assets shall mean the assets of the Borrower and its Subsidiaries constituting net property, plant and equipment on the consolidated balance sheet of the Borrower and its Subsidiaries.
Foreign Lender shall mean any Lender that is not a United States person under Section 7701(a)(3) of the Code.
GAAP shall mean generally accepted accounting principles in the United States applied on a consistent basis and subject to Section 1.3 .
Governmental Authority shall mean any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.
Guaranty Obligations shall mean, with respect to any Person, without duplication, any obligations (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing any indebtedness for borrowed money of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (a) to purchase any such indebtedness or other obligation or any property constituting security therefor, (b) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such indebtedness or (c) to otherwise assure or hold harmless the owner of such indebtedness or obligation against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount of the indebtedness in respect of which such Guaranty Obligation is made.
Hedging Obligations shall mean any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under (i) any and all Hedging Transactions, (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Hedging Transactions and (iii) any and all renewals, extensions and modifications of any Hedging Transactions and any and all substitutions for any Hedging Transactions.
Hedging Transaction shall mean any transaction (including an agreement with respect thereto) now existing or hereafter entered into by such Person that is a rate swap, basis swap, forward rate transaction, commodity swap, interest rate option, foreign exchange
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transaction, cap transaction, floor transaction, collateral transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures.
Hybrid Securities shall mean any trust preferred securities, or deferrable interest subordinated debt with a maturity of at least 20 years, which provides for the optional or mandatory deferral of interest or distributions, issued by the Borrower, or any business trusts, limited liability companies, limited partnerships or similar entities (i) substantially all of the common equity, general partner or similar interests of which are owned (either directly or indirectly through one or more wholly owned subsidiaries) at all times by the Borrower or any of its subsidiaries, (ii) that have been formed for the purpose of issuing trust preferred securities or deferrable interest subordinated debt, and (iii) substantially all the assets of which consist of (A) subordinated debt of the Borrower or a subsidiary of the Borrower, and (B) payments made from time to time on the subordinated debt.
Indemnified Taxes shall mean Taxes other than Excluded Taxes.
Information Memorandum shall mean the Confidential Executive Summary dated October 2007 relating to the Borrower and the transactions contemplated by this Agreement and the other Credit Documents.
Interest Period shall mean with respect to any Eurodollar Borrowing, a period of one, two, three or six months; provided, that:
(i) the initial Interest Period for such Borrowing shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of another Type), and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless such Business Day falls in another calendar month, in which case such Interest Period would end on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business Day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of such calendar month;
(iv) no Interest Period may extend beyond the Commitment Termination Date.
Lenders shall have the meaning assigned to such term in the opening paragraph of this Agreement.
LIBOR shall mean, for any applicable Interest Period with respect to any Eurodollar Loan, the rate per annum equal to the British Bankers Association LIBOR Rate
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