FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
Execution Version
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated effective as of December 23, 2015 (the “Effective Date”), is by and among EnLink Midstream Partners, LP, a Delaware limited partnership (the “Borrower”), the Lenders party hereto and Bank of America, N.A., as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”).
WHEREAS, the Borrower, the lenders party thereto (the “Lenders”), and the Administrative Agent are parties to that certain Credit Agreement dated as of February 20, 2014 (as modified by that certain Commitment Increase and Extension Agreement dated effective as of February 5, 2015, the “Credit Agreement”, the capitalized terms of which are used herein as therein defined unless otherwise defined herein);
WHEREAS, the Borrower has requested, and the Lenders party hereto have agreed, subject to the terms and conditions of this Amendment, to amend the Credit Agreement so that the XXX Subsequent Securities Payments (as hereinafter defined) are excluded from the Credit Agreement’s Consolidated Leverage Ratio and limitation on Subsidiary Indebtedness, all as more fully set forth in this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants, representations and warranties and agreements herein contained, the parties hereto agree as follows:
Section 1. Amendments to the Credit Agreement. The Credit Agreement is hereby amended as follows:
(a) The following new definitions are added, in the appropriate alphabetical order, to Section 1.01 of the Credit Agreement to read as follows:
“TOMPC Securities Purchase Agreement” means that certain TOMPC Securities Purchase Agreement dated as of December 6, 2015, by and among TOMPC LLC, Tall Oak Midstream, LLC, EnLink XXX Holdings, LP, EnLink Midstream, LLC and the Borrower, pursuant to which EnLink XXX Holdings, LP will purchase all of the membership interests of TOMPC LLC on the terms and conditions set forth therein.
“TOMPC Subsequent Securities Payments” means the Subsequent Securities Payment (as defined in the TOMPC Securities Purchase Agreement) in an aggregate amount not to exceed $61,360,000, which amount is (a) payable by EnLink XXX Holdings, LP pursuant to the TOMPC Securities Purchase Agreement and (b) owed in two installments: (i) $30,680,000 due and payable on or before the twelve-month anniversary of the Closing Date (as used in this definition only, as such term is defined in the TOMPC Securities Purchase Agreement) and (ii) $30,680,000 due and payable on or before the twenty-four month anniversary of the Closing Date.
“XXX-STACK Securities Purchase Agreement” means that certain XXX-STACK Securities Purchase Agreement dated as of December 6, 2015, by and among XXX-STACK, LLC, XXX-STACK Holdings, LLC, Tall Oak Midstream, LLC, FE-STACK, LLC, EnLink XXX Holdings, LP, EnLink Midstream, LLC and the Borrower, pursuant to which EnLink XXX Holdings, LP will purchase all of the membership interests of XXX-STACK, LLC on the terms and conditions set forth therein.
“XXX-STACK Subsequent Securities Payments” means the Subsequent Securities Payment (as defined in the XXX-STACK Securities Purchase Agreement) in an aggregate amount not to exceed $438,640,000, which amount is (a) payable by EnLink XXX Holdings, LP pursuant to the XXX-STACK Securities Purchase Agreement and (b) owed in two installments: (i) $219,320,000 due and payable on or before the twelve-month anniversary of the Closing Date (as used in this definition only, as such term is defined in the XXX-STACK Securities Purchase Agreement) and (ii) $219,320,000 due and payable on or before the twenty-four month anniversary of the Closing Date.
“XXX Subsequent Securities Payments” means, collectively, the TOMPC Subsequent Securities Payments and the XXX-STACK Subsequent Securities Payments.
(b) The definition of Acquisition Period in Section 1.01 of the Credit Agreement is amended to add the following sentence to the end thereof:
For the avoidance of doubt, there may be no more than one Acquisition Period with respect to the transactions described in or related to the TOMPC Securities Purchase Agreement and XXX-STACK Securities Purchase Agreement, collectively.
(c) The definition of Consolidated Funded Indebtedness in Section 1.01 of the Credit Agreement is amended to add the following sentence to the end thereof:
“Notwithstanding the foregoing, Consolidated Funded Indebtedness shall not include the XXX Subsequent Securities Payments.”
(d) Section 7.02 of the Credit Agreement is amended to (i) delete the “and” from the end of subclause (h) thereof, (ii) replace the “.” at the end of subclause (i) thereof with “; and” and (iii) insert a new subclause (j) thereof to read as follows:
“(j) the XXX Subsequent Securities Payments.”
Section 2. Conditions Precedent. This Amendment shall become effective as of the Effective Date upon the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received this Amendment, duly executed by the Borrower, the Required Lenders, and the Administrative Agent;
(b) the representations and warranties set forth in Section 3 of this Amendment shall be true and correct; and
(c) the Borrower shall have paid all costs and expenses that are payable pursuant to Section 10.04 of the Credit Agreement (including the reasonable fees and expenses of Xxxxxxxxx & Xxxxxxxx LLP, counsel to the Administrative Agent) to the extent that the Borrower has received an invoice therefor at least two Business Days prior to the anticipated Effective Date.
Section 3. Representations and Warranties. The Borrower represents and warrants to the Lenders and the Administrative Agent:
(a) The execution, delivery and performance by the Borrower of this Amendment have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) violate (A) the terms of the Borrower’s Organization Documents, (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its property is subject, or (C) any provision of Law applicable to it, (ii) result in the acceleration of any Indebtedness owed by it, except as could not reasonably be expected to have a Material Adverse Effect, (iii) result in any breach of, or a default under, any material Contractual Obligation to which the Borrower is a party or to which its properties are bound, except as could not reasonably be expected to have a Material Adverse Effect or (iv) result in the creation of any consensual Lien upon any of its material assets except as expressly contemplated in, or permitted by, the Loan Documents.
(b) This Amendment has been duly executed and delivered by the Borrower and constitutes the Borrower’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) No material consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority or third party that has not been obtained is required to be made or obtained by the Borrower pursuant to the provisions of any material Law applicable to it as a condition to its execution, delivery or performance of this Amendment, except those that would ordinarily be made or done in the ordinary course of business after the Effective Date.
(d) After giving effect to this Amendment, the representations and warranties set forth in Article V of the Credit Agreement and the other Loan Documents are true and correct in all material respects (except to the extent such representations and warranties are already qualified as to materiality, in which case such representations and warranties are true and correct in all respects) on and as of the Effective Date, except to the extent
that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except to the extent such representations and warranties are already qualified as to materiality, in which case such representations and warranties are true and correct in all respects) as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement.
(e) After giving effect to this Amendment, no event has occurred and is continuing that constitutes a Default or an Event of Default.
Section 4. Miscellaneous.
(a) Modified Terms. On and after the Effective Date, all references to the Credit Agreement or the other Loan Documents in each of the Credit Agreement or the other Loan Documents shall hereafter mean the Credit Agreement or the other Loan Documents as modified by this Amendment. Except as specifically modified hereby or otherwise agreed, the Credit Agreement and the other Loan Documents are hereby ratified and confirmed and shall remain in full force and effect according to their respective terms.
(b) Reaffirmation of Obligations. The Borrower hereby ratifies the Credit Agreement and acknowledges and reaffirms (i) that it is bound by all terms of the Credit Agreement (as modified by this Amendment) and the other Loan Documents applicable to it and (ii) that it is responsible for the observance and full performance of its respective Obligations.
(c) Loan Document. This Amendment shall constitute a Loan Document under the terms of the Credit Agreement.
(d) Expenses. The Borrower agrees to pay all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including the reasonable fees and expenses of Xxxxxxxxx & Xxxxxxxx LLP, as the Administrative Agent’s legal counsel.
(e) Further Assurances. The Borrower agrees to promptly take such reasonable action, upon the request of the Administrative Agent, as is necessary to carry out the intent of this Amendment.
(f) Entirety. This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.
(g) Counterparts; Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment or any other document required to be delivered hereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. Without limiting the foregoing, upon the
request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.
(h) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
(j) Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 10.14 and 10.15 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.
(k) No Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
[Remainder of this page blank; signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the Effective Date.
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BORROWER: | ||
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By: |
EnLink Midstream GP, LLC, | |
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its general partner | |
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By: |
/s/ Xxxxx Xxxxxx Xxxxxx |
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Name: Xxxxx Xxxxxx Xxxxxx | |
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Title: Vice President — Finance and Treasurer | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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ADMINISTRATIVE AGENT: | |
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BANK OF AMERICA, N.A., as Administrative Agent | |
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By: |
/s/ XxXxxxx X. Xxxxx |
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Name: XxXxxxx X. Xxxxx | |
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Title: Assistant Vice President | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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LENDERS: | |
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BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender | |
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By: |
/s/ Xxxx X. Xxx |
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Name: Xxxx X. Xxx | |
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Title: Director | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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CITIBANK, N.A., as a Lender and L/C Issuer | |
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By: |
/s/ Xxxxx Xxxxx |
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Name: Xxxxx Xxxxx | |
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Title: Vice President | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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XXXXX FARGO BANK, N.A., as a Lender and L/C Issuer | |
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By: |
/s/ Xxxxxxx Xxxx |
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Name: Xxxxxxx Xxxx | |
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Title: Vice President | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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BANK OF MONTREAL, as a Lender | |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: Xxxxxxx Xxxxxxx | |
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Title: Vice President | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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ROYAL BANK OF CANADA, as a Lender | |
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By: |
/s/ Xxx Xxxxxx |
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Name: Xxx Xxxxxx | |
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Title: Authorized Signatory | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender | |
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By: |
/s/ Xxxx Xxxxxxxxxx |
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Name: Xxxx Xxxxxxxxxx | |
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Title: Vice President | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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BARCLAYS BANK PLC, as a Lender | |
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By: |
/s/ Xxxx Xxxx |
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Name: Xxxx Xxxx | |
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Title: Assistance Vice President | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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COMPASS BANK, as a Lender | |
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By: |
/s/ Xxxxx Xxxxxxxx |
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Name: Xxxxx Xxxxxxxx | |
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Title: Senior Vice President | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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COMERICA BANK, as a Lender | |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Name: Xxxxxx X. Xxxxxxx | |
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Title: Relationship Manager | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender | |
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By: |
/s/ Xxxxx Xxxxx |
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Name: |
XXXXX XXXXX |
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Title: |
AUTHORIZED SIGNATORY |
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By: |
/s/ Stefan Dickenmann |
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Name: |
Stefan Dickenmann |
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Title: |
Authorized Signatory |
Signature Page to First Amendment to Credit Agreement (ENLK)
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DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender | |
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By: |
/s/ Xxxx X. Xxx |
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Name: Xxxx X. Xxx | |
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Title: Vice President | |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx | |
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Title: Managing Director | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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XXXXXXX XXXXX BANK USA, as a Lender | |
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By: |
/s/ Xxxxx Xx |
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Name: |
XXXXX XX |
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Title: |
AUTHORIZED SIGNATORY |
Signature Page to First Amendment to Credit Agreement (ENLK)
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JPMORGAN CHASE BANK, N.A., as a Lender | |
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By: |
/s/ Xxxxx Xxxxxx |
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Name: |
Xxxxx Xxxxxx |
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Title: |
Vice President |
Signature Page to First Amendment to Credit Agreement (ENLK)
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XXXXXX XXXXXXX BANK, N.A., as a Lender | |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: Xxxxxxx Xxxxxxx | |
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Title: Authorized Signatory | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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MIZUHO BANK, LTD., as a Lender | |
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By: |
/s/ Xxxxx X Xxxxxxxxxxx |
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Name: |
Xxxxx X Xxxxxxxxxxx |
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Title: |
Authorized Signatory |
Signature Page to First Amendment to Credit Agreement (ENLK)
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PNC BANK, NATIONAL ASSOCIATION, as a Lender | |
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By: |
/s/ Xxx Xxxxxxxx |
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Name: Xxx Xxxxxxxx | |
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Title: Managing Director | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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UBS AG, STAMFORD BRANCH, as a Lender | |
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By: |
/s/ Xxxxxxx Xxxx |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Associate Director |
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By: |
/s/ Xxxxxxx Xxxx |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Director |
Signature Page to First Amendment to Credit Agreement (ENLK)
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U.S. BANK NATIONAL ASSOCIATION, as a Lender | |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: Xxxxxxx Xxxxxxx | |
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Title: Vice President | |
Signature Page to First Amendment to Credit Agreement (ENLK)
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AMEGY BANK NATIONAL ASSOCIATION, as a Lender | |
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By: |
/s/ Xxxx XxXxxxxx |
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Name: |
Xxxx XxXxxxxx |
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Title: |
Senior Vice President |
Signature Page to First Amendment to Credit Agreement (ENLK)
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SCOTIABANC INC., as a Lender | |
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
Managing Director |
Signature Page to First Amendment to Credit Agreement (ENLK)
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CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender | |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Managing Director |
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By: |
/s/ Xxxxxxx Xxxxxx |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Managing Director |
Signature Page to First Amendment to Credit Agreement (ENLK)
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FIFTH THIRD BANK, as a Lender | |
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By: |
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Name: |
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Signature Page to First Amendment to Credit Agreement (ENLK)
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THE HUNTINGTON NATIONAL BANK, as a Lender | |
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By: |
/s/ Xxxxxxxx Xxxxxxxx |
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Name: |
Xxxxxxxx Xxxxxxxx |
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Title: |
Vice President |
Signature Page to First Amendment to Credit Agreement (ENLK)
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XXXXXXX XXXXX BANK N.A., as a Lender | |
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By: |
/s/ Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
Senior Vice President |
Signature Page to First Amendment to Credit Agreement (ENLK)
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REGIONS BANK, as a Lender | |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Senior Vice President |
Signature Page to First Amendment to Credit Agreement (ENLK)
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SUMITOMO MITSUI BANKING CORPORATION, as a Lender | |
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By: |
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Signature Page to First Amendment to Credit Agreement (ENLK)
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SUNTRUST BANK, as a Lender | |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Director |
Signature Page to First Amendment to Credit Agreement (ENLK)
