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

 

September 24, 2004

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   (Commission File   (I.R.S. Employer
of Incorporation)   Number)   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 September 24, 2004, Atmos Energy Corporation (the “Company”) entered into a 364-Day Revolving Credit Agreement, dated as of September 24, 2004, by and among the Company, Bank One, NA, as Administrative Agent, Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Syndication Agent and Lead Arranger and Book Runner, Bank of America, N.A. and Suntrust Bank, as Co-Documentation Agents, and a syndicate of nine banks identified therein. The credit facility will provide necessary bridge financing of up to $1,700,000,000 to the Company in order to close its acquisition of the natural gas distribution and pipeline operations of TXU Gas Company, which acquisition is expected to close on or about October 1, 2004. The credit facility will be used to finance, or backstop the issuance of commercial paper to finance, this acquisition and the closing of the TXU Gas acquisition is a condition to borrowing under the credit facility.

 

Borrowings under the credit facility will bear interest at a rate dependent on the Company’s credit ratings at the time of such borrowing and based, at the Company’s election, on LIBOR or a base rate. Borrowings based on LIBOR would bear interest at a rate ranging from LIBOR plus 0.5% to 1.75%. At the Company’s current credit ratings, LIBOR-based borrowings would bear interest at LIBOR plus 1.0%. In addition, the Company must pay commitment and utilization fees quarterly at rates dependent on the Company’s credit ratings. At the Company’s current credit ratings, the commitment fee would be 0.15% and the utilization fee, payable only when utilization exceeds 33 1/3% of the aggregate commitment, would be 0.125%.

 

The credit facility will expire on September 23, 2005, 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 Company’s 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 1.0; provided that the amount of debt for the purpose of the determination of such ratio as of December 31, 2004 shall exclude then outstanding borrowings made in the fiscal quarter ending on such date (seasonal borrowings) equal to the lesser of (i) $200,000,000 or (ii) the aggregate amount of the seasonal borrowings. The Company would be required to reduce the indebtedness outstanding under the credit facility to the extent of the net cash proceeds from any borrowings or sales of debt and equity securities after the closing of the TXU Gas acquisition, with exceptions for issuances of capital stock under any dividend reinvestment plan, direct stock purchase plan, employee benefit plan or to employee, directors or officers, sales of commercial paper, purchase money financings and any borrowings under our existing working capital credit facility.

 

In the event of a default by the Company under the credit facility, including cross-defaults relating to specified other indebtedness of the Company, Bank One, NA 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.

 

With respect to the other parties to the 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.

No direct financial obligations of the Company have arisen under the credit facility as of the date hereof. 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 above under “Section 1—Registrant’s Business and Operations—Item 1.01 Entry into a Material Definitive Agreement” is hereby incorporated herein by reference.
 

Item 9.01. Financial Statements and Exhibits.

 

(c) Exhibits

 

  10.1 364-Day Revolving Credit Agreement, dated as of September 24, 2004, by and among Atmos Energy Corporation, Bank One, NA, as Administrative Agent, Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Syndication Agent and Lead Arranger and Book Runner, Bank of America, N.A. and Suntrust Bank, as Co-Documentation Agents, and the Lenders 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

(Registrant)

DATE: September 29, 2004       By:   /s/ LOUIS P. GREGORY
               

Louis P. Gregory

Senior Vice President

and General Counsel

 


EXHIBIT INDEX

 

 
Exhibit Number
  

Description

10.1    364-Day Revolving Credit Agreement, dated as of September 24, 2004, by and among Atmos Energy Corporation, Bank One, NA, as Administrative Agent, Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Syndication Agent and Lead Arranger and Book Runner, Bank of America, N.A. and Suntrust Bank, as Co-Documentation Agents, and the Lenders identified therein.

Exhibit 10.1

 

Execution Copy

 

364-DAY REVOLVING CREDIT AGREEMENT

 

among

 

ATMOS ENERGY CORPORATION

as Borrower,

 

THE LENDERS IDENTIFIED HEREIN,

 

AND

 

BANK ONE, NA

as Administrative Agent,

 

AND

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

as Syndication Agent,

 

AND

 

BANK OF AMERICA, N.A. AND SUNTRUST BANK

as Co-Documentation Agents

 

DATED AS OF SEPTEMBER 24, 2004

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

as Lead Arranger and Book Runner

TABLE OF CONTENTS

 

             Page
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS    1
    1.1   Definitions    1
    1.2   Computation of Time Periods    12
    1.3   Accounting Terms    12
    1.4   Time    13
SECTION 2. LOANS    13
    2.1   Aggregate Commitment    13
    2.2   Method of Borrowing for Loans    13
    2.3   Funding of Loans    13
    2.4   Continuations and Conversions    14
    2.5   Minimum Amounts    14
    2.6   Reductions of Aggregate Commitment    15
    2.7   Notes    15
SECTION 3. PAYMENTS    16
    3.1   Interest    16
    3.2   Prepayments    16
    3.3   Payment in full at Maturity    17
    3.4   Fees    17
    3.5   Place and Manner of Payments    18
    3.6   Pro Rata Treatment    18
    3.7   Computations of Interest and Fees    18
    3.8   Sharing of Payments    19
    3.9   Evidence of Debt    20
SECTION 4. ADDITIONAL PROVISIONS REGARDING LOANS    20
    4.1   Eurodollar Loan Provisions    20
    4.2   Capital Adequacy    22
    4.3   Compensation    22
    4.4   Taxes    23
SECTION 5. CONDITIONS PRECEDENT    25
    5.1   Closing Conditions    25
    5.2   Conditions to Loans    27

 

TABLE OF CONTENTS

(continued)

 

             Page
SECTION 6. REPRESENTATIONS AND WARRANTIES    28
    6.1   Organization and Good Standing    28
    6.2   Due Authorization    28
    6.3   No Conflicts    28
    6.4   Consents    28
    6.5   Enforceable Obligations    29
    6.6   Financial Condition    29
    6.7   No Material Change    29
    6.8   No Default    29
    6.9   Litigation    29
    6.10   Taxes    30
    6.11   Compliance with Law    30
    6.12   Material Agreements    30
    6.13   ERISA    30
    6.14   Use of Proceeds    31
    6.15   Government Regulation    31
    6.16   Disclosure    32
    6.17   Environmental Matters    32
    6.18   Insurance    32
    6.19   Franchises, Licenses, Etc.    33
    6.20   Secured Indebtedness    33
    6.21   Subsidiaries    33
SECTION 7. AFFIRMATIVE COVENANTS    33
    7.1   Information Covenants    33
    7.2   Debt to Capitalization Ratio    35
    7.3   Preservation of Existence, Franchises and Assets    35
    7.4   Books and Records    36
    7.5   Compliance with Law    36
    7.6   Payment of Taxes and Other Indebtedness    36
    7.7   Insurance    36
    7.8   Use of Proceeds    36
    7.9   Audits/Inspections    36
SECTION 8. NEGATIVE COVENANTS    37
    8.1   Nature of Business    37
    8.2   Consolidation and Merger    37
    8.3   Sale or Lease of Assets    37
    8.4   Arm’s-Length Transactions    37
    8.5   Fiscal Year; Organizational Documents    37
    8.6   Liens    38

 

TABLE OF CONTENTS

(continued)

 

             Page
SECTION 9. EVENTS OF DEFAULT    39
    9.1     Events of Default    39
    9.2     Acceleration; Remedies    41
    9.3     Allocation of Payments After Event of Default    42
SECTION 10. AGENCY PROVISIONS    43
    10.1     Appointment    43
    10.2     Delegation of Duties    43
    10.3     Exculpatory Provisions    43
    10.4     Reliance on Communications    44
    10.5     Notice of Default    44
    10.6     Non-Reliance on Administrative Agent and Other Lenders    45
    10.7     Indemnification    45
    10.8     Administrative Agent in Its Individual Capacity    46
    10.9     Successor Agent    46
SECTION 11. MISCELLANEOUS    46
    11.1     Notices    46
    11.2     Right of Set-Off    47
    11.3     Benefit of Agreement    47
    11.4     No Waiver; Remedies Cumulative    50
    11.5     Payment of Expenses, etc.    50
    11.6     Amendments, Waivers and Consents    51
    11.7     Counterparts/Telecopy    51
    11.8     Headings    52
    11.9     Defaulting Lender    52
    11.10   Survival of Indemnification and Representations and Warranties    52
    11.11   Governing Law; Venue    52
    11.12   Waiver of Jury Trial    53
    11.13   Severability    53
    11.14   Further Assurances    53
    11.15   Entirety    53
    11.16   Binding Effect; Continuing Agreement    53

SCHEDULES    

    
Schedule 1.1(a)    Commitment Percentages     
Schedule 1.1(b)    Pricing Schedule     
Schedule 6.20       Secured Indebtedness     
Schedule 6.21       Subsidiaries     
Schedule 11.1       Notices     

 

TABLE OF CONTENTS

(continued)

 

        
Page
EXHIBITS         
Exhibit 2.2   Form of Notice of Borrowing     
Exhibit 2.4   Form of Notice of Continuation/Conversion     
Exhibit 2.7   Form of Note     
Exhibit 4.4   Form of U.S. Tax Compliance Certificate     
Exhibit 7.1(c)   Form of Officer’s Certificate     
Exhibit 11.3(b)   Form of Assignment Agreement     

 

Execution Copy

 

REVOLVING CREDIT AGREEMENT

 

THIS REVOLVING CREDIT AGREEMENT (this “ Credit Agreement ”), dated as of September 24, 2004, is entered into among ATMOS ENERGY CORPORATION , a Texas and Virginia corporation (the “ Borrower ”), the Lenders (as defined herein) and BANK ONE, NA, as agent for the Lenders (in such capacity, the “ Administrative Agent ”).

 

RECITALS

 

WHEREAS , the Borrower wishes, from time to time, to obtain loans in the principal sum of up to $1,700,000,000 at any one time outstanding, and the Lenders are willing to make such loans to the Borrower, on the terms and conditions hereinafter set forth.

 

NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

SECTION 1.

 

DEFINITIONS AND ACCOUNTING TERMS

 

1.1 Definitions .

 

As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires. Defined terms herein shall include in the singular number the plural and in the plural the singular.

 

“ Acquisition ” means the acquisition by the Borrower of the natural gas transmission and distribution assets of TXU Gas Company through the merger of TXU Gas Company with a wholly owned subsidiary of the Borrower pursuant to and in accordance with the Acquisition Agreement.

 

“ Acquisition Agreement ” means the Agreement and Plan of Merger by and between TXU Gas Company and LSG Acquisition Corporation, dated as of June 17, 2004.

 

“ Additional Fees ” shall have the meaning set forth in Section 3.4(d).

 

“ Adjusted Eurodollar Rate ” means the Eurodollar Rate plus the Applicable Percentage for Eurodollar Loans.

 

“ Administrative Agent ” means Bank One, NA and any successors and assigns in such capacity.

 

“ Affiliate ” means, with respect 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.

 

“ Agency Services Address ” means 1 Bank One Plaza, 10 th Floor, Chicago, Illinois 60670 or such other address as the Administrative Agent may designate in writing.

 

“ Aggregate Commitment ” means one billion seven hundred million Dollars ($1,700,000,000) as such amount may be otherwise reduced in accordance with Section 2.6.

 

“ Applicable Percentage ” shall have the meaning set forth in the Pricing Schedule.

 

“ Arranger ” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

“ Bankruptcy Code ” means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.

 

“ Base Rate ” means a fluctuating rate of interest equal to the higher of (a) the Prime Rate and (b) the sum of the Federal Funds Rate most recently determined by the Administrative Agent plus 1/2% per annum. If for any reason the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable after due inquiry to ascertain the Federal Funds Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms hereof, the Base Rate shall be determined without regard to clause (b) of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds Rate, respectively.

 

“ Base Rate Loan ” means a Loan which bears interest based on the Base Rate plus the Applicable Percentage.

 

“ Borrower ” means Atmos Energy Corporation, a Texas and Virginia corporation.

 

“ Borrower Obligations ” means, without duplication, all of the obligations of the Borrower to the Lenders and the Administrative Agent, whenever arising, under this Credit Agreement, the Notes or any of the other Credit Documents.

 

“ Business Day ” means any day other than a Saturday, a Sunday, a legal holiday or a day on which banking institutions are authorized or required by law or other governmental action to close in Chicago, Illinois; provided that in the case of Eurodollar Loans, such day is also a day on which dealings between banks are carried on in U.S. dollar deposits in the London interbank market.

 

“ Capital Stock ” means (a) in the case of a corporation, all classes of capital stock and equity-linked 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 of Control ” means 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 or 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.

 

“ Closing Date ” means the date hereof.

 

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder.

 

“ Commitment Fees ” has the meaning set forth in Section 3.4(a).

 

“ Commitment Percentage ” means, for each Lender, the percentage identified as its Commitment Percentage opposite such Lender’s name on Schedule 1.1(a) , as such percentage may be modified by assignment in accordance with the terms of this Credit Agreement.

 

“ Commitments ” means, collectively, each Lender’s share of the Aggregate Commitment based upon such Lender’s Commitment Percentage, as reflected on Schedule 1.1(a) .

 

“ Consolidated Capitalization ” means, without duplication, the sum of (a) all of the shareholders’ equity or net worth of the Borrower and its Subsidiaries on a consolidated 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 ” means, 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, (c) the principal portion of all obligations of the Borrower and its Subsidiaries under capital leases, (d) all commercial letters of credit and the maximum amount of all performance and standby letters of credit issued or bankers’ acceptance facilities 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; provided that neither the indebtedness of Atmos Energy Marketing, LLC (“ 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, (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, (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 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.

 

“ Consolidated Net Property ” means the Fixed Assets less, without duplication, the amount of accumulated depreciation and amortization attributable thereto.

 

“ Credit Documents ” means this Credit Agreement, the Notes, any Notice of Borrowing and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto.

 

“ Debt to Capitalization Ratio ” means the ratio of (a) Consolidated Funded Debt to (b) Consolidated Capitalization.

 

“ Default ” means any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.

 

“ Defaulting Lender ” means, at any time, any Lender that, at such time (a) has failed to make a Loan required pursuant to the term of this Credit Agreement, (b) has failed to pay to the Administrative Agent or any Lender an amount owed by such Lender pursuant to the terms of this Credit Agreement or (c) has been deemed insolvent or has become subject to a bankruptcy or insolvency proceeding or to a receiver, trustee or similar official.

“ Dollars ” and “ $ ” means dollars in lawful currency of the United States of America.

 

“ Effective Date ” means the date on which all of the conditions set forth in Section 5.1 shall have been fulfilled (or waived in the sole discretion of the Lenders).

 

“ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; and (c) any other Person approved by the Administrative Agent, the Arranger and the Borrower (such approval not to be unreasonably withheld or delayed); provided that (i) the Borrower’s consent is not required during the existence and continuation of a Default or an Event of Default, (ii) approval by the Borrower shall be deemed given if no objection is received by the Administrative Agent from the Borrower within five Business Days after notice of such proposed assignment has been received by the Borrower; and (iii) neither the Borrower nor an Affiliate of the Borrower shall qualify as an Eligible Assignee.

 

“ Environmental Laws ” means 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 ” means 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 ” means 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.

“ Eurodollar Loan ” means a Loan bearing interest at the Adjusted Eurodollar Rate.

 

“ Eurodollar Rate ” means, with respect to any Interest Period, the applicable London interbank offered rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the first day of the applicable Interest Period, and having a maturity equal to such Interest Period, adjusted for Federal Reserve Board reserve requirements by multiplying the rate so appearing by a fraction (i) the numerator of which is one and (ii) the denominator of which is one minus the Eurodollar Reserve Percentage.

 

“ Eurodollar Reserve Percentage ” means, for any day, that percentage (expressed as a decimal) which is in effect from time to time under Regulation D, as the maximum reserve requirement (including, without limitation, any basic, supplemental, emergency, special, or marginal reserves) applicable with respect to Eurocurrency liabilities, as that term is defined in Regulation D (or against any other category of liabilities that includes deposits by reference to which the interest rate of Eurodollar Loans is determined), whether or not a Lender has any Eurocurrency liabilities subject to such reserve requirement at that time. Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for proration, exceptions or offsets that may be available from time to time to a Lender. The Eurodollar Rate shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage.

 

“ Event of Default ” has the meaning specified in Section 9.1.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“ Existing Credit Agreement ” means that certain Revolving Credit Agreement, dated as of July 23, 2004, among the Borrower, the lenders identified therein and Bank One, NA, as administrative agent, as amended, modified, supplemented or replaced from time to time.

 

“ Federal Funds Rate ” means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day by the Federal Reserve Bank of New York, or if such rate is not so published for such day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

“ Fee Letter ” means that certain letter agreement, dated as of June 16, 2004, between the Administrative Agent and the Borrower, as amended, modified, supplemented or replaced from time to time.

“ Financial Officer ” means any one of the chief financial officer, the controller or the treasurer of the Borrower.

 

“ Fixed Assets ” means 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.

 

“ GAAP ” means generally accepted accounting principles in the United States applied on a consistent basis and subject to Section 1.3.

 

“ Governmental Authority ” means any Federal, state, local or foreign court or governmental agency, authority, instrumentality, regulatory body or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government.

 

“ Guaranty Obligations ” means, 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.

 

“ Interest Payment Date ” means (a) as to Base Rate Loans, the last day of each fiscal quarter of the Borrower and the Maturity Date, and (b) as to Eurodollar Loans, the last day of each applicable Interest Period and the Maturity Date and, in addition, where the applicable Interest Period for a Eurodollar Loan is greater than three months, then also on the last day of each three-month period during such Interest Period.

 

“ Interest Period ” means as to Eurodollar Loans, a period of one, two, three or six months’ duration, as the Borrower may elect, commencing, in each case, on the date of the borrowing (including continuations and conversions of Eurodollar Loans); provided , however , (a) if any Interest Period would end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then such Interest Period shall end on the next preceding Business Day), (b) no Interest Period shall extend beyond the Maturity Date and (c) with respect to Eurodollar Loans, where an Interest Period begins on a day for which there is no numerically corresponding day in the calendar month in which the Interest Period is to end, such Interest Period shall end on the last Business Day of such calendar month.

“ Lender ” means any of the Persons identified as a “Lender” on the signature pages hereto, and any Eligible Assignee which may become a Lender by way of assignment in accordance with the terms hereof, together with their successors and permitted assigns.

 

“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind (including any agreement to give any of the foregoing).

 

“ Loan ” means a loan made by a Lender to the Borrower pursuant to Section 2.1.

 

“ Material Adverse Effect ” means (a)(i) through the closing date of the Acquisition, a material adverse effect on the business or assets of the Borrower and its Subsidiaries, taken as a whole (after giving effect to the Acquisition), or (ii) after the closing date of the Acquisition, a material adverse effect on the operations, business, assets, liabilities (actual or contingent), financial condition or prospects of the Borrower and its Subsidiaries, taken as a whole, (b) the ability of the Borrower to perform its obligations under this Credit Agreement or (c) the validity or enforceability of this Credit Agreement, any of the other Credit Documents, or the rights and remedies of the Lenders hereunder or thereunder.

 

“ Material Subsidiary ” means, at any date, a Subsidiary of the Borrower whose aggregate assets properly included under the category “property, plant and equipment” on the balance sheet of such Subsidiary, less the amount of depreciation and amortization attributable thereto, constitutes at least 10% of Consolidated Net Property as of such date; provided that if at any time the Borrower has Subsidiaries that are not Material Subsidiaries whose total aggregate assets under the category “property, plant and equipment” on the balance sheet of such Subsidiaries, less the amount of depreciation and amortization attributable thereto, constitutes more than 20% of Consolidated Net Property as of such date the Borrower shall designate one or more of such Subsidiaries as Material Subsidiaries for the purposes of this Credit Agreement in order that all Subsidiaries of the Borrower, other than Material Subsidiaries, own not more than 20% of Consolidated Net Property.

 

“ Maturity Date ” means September 23, 2005.

 

“ Minority Interests ” means interests owned by Persons (other than the Borrower or a Subsidiary of the Borrower) in a Subsidiary of the Borrower in which less than 100% of all classes of the voting securities are owned by the Borrower or its Subsidiaries.

 

“ Moody’s ” means Moody’s Investors Service, Inc., or any successor or assignee of the business of such company in the business of rating securities.

 

“ Moody’s Rating ” has the meaning set forth in Schedule 1.1(b).

 

“ Multiemployer Plan ” means a Plan covered by Title IV of ERISA which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.

“ Multiple Employer Plan ” means a Plan covered by Title IV of ERISA, other than a Multiemployer Plan, which the Borrower or any ERISA Affiliate and at least one employer other than the Borrower or any ERISA Affiliate are contributing sponsors.

 

“ Net Cash Proceeds ” means, in connection with any issuance or sale of Capital Stock or any incurrence of Consolidated Funded Debt, the cash proceeds received by the Borrower and its Subsidiaries from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.

 

“ 1957 Indenture ” means, collectively, that certain Indenture of Mortgage, dated as of March 1, 1957, granted by Greeley Gas Company (predecessor in interest to the Borrower) to The Central Bank and Trust Company, as original Trustee, and all Supplemental Indentures thereto.

 

“ 1959 Indenture ” means, collectively, that certain Indenture of Mortgage, dated as of July 15, 1959, granted by United Cities Gas Company (predecessor in interest to the Borrower) to City National Bank and Trust Company of Chicago and R. Emmett Hanley, as the original Trustees, and all Supplemental Indentures thereto, including, without limitation, that certain First Supplemental Indenture, dated as of November 1, 1960; that certain Second Supplemental Indenture, dated as of June 1, 1962; that certain Third Supplemental Indenture, dated as of February 1, 1963; that certain Fourth Supplemental Indenture, dated as of June 15, 1963; that certain Fifth Supplemental Indenture, dated as of November 15, 1964; that certain Sixth Supplemental Indenture, dated as of March 15, 1968; that certain Seventh Supplemental Indenture, dated as of August 1, 1970; that certain Eighth Supplemental Indenture, dated as of September 1, 1972; that certain Ninth Supplemental Indenture, dated as of January 1, 1974; that certain Tenth Supplemental Indenture, dated as of July 1, 1976; that certain Eleventh Supplemental Indenture, dated as of December 1, 1976; that certain Twelfth Supplemental Indenture, dated as of April 1, 1981; that certain Thirteenth Supplemental Indenture, dated as of May 1, 1982; that certain Fourteenth Supplemental Indenture, dated as of March 1, 1987; that certain Fifteenth Supplemental Indenture, dated as of October 1, 1987; that certain Sixteenth Supplemental Indenture, dated as of December 1, 1989; that certain Seventeenth Supplemental Indenture, dated as of April 1, 1990; that certain Eighteenth Supplemental Indenture, dated as of June 1, 1991; that certain Nineteenth Supplemental Indenture, dated as of May 1, 1992; that certain Twentieth Supplemental Indenture, dated as of December 1, 1992; that certain Twenty-First Supplemental Indenture, dated as of February 5, 1997; and that certain Twenty-Second Supplemental Indenture, dated as of July 29, 1997.

 

“ 1998 Indenture ” means, collective