Second Amendment to Credit Agreement, dated as of February 7, 2020, among Altus Midstream LP, the lenders party thereto, the swingline lender party thereto, the issuing banks party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents party thereto
Exhibit 10.1
[EXECUTION COPY]
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of February 7, 2020 (the “Amendment”), among ALTUS MIDSTREAM LP, a Delaware limited partnership (“Borrower”), the Lenders party hereto, Swingline Lender party hereto, Issuing Banks party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent (the “Administrative Agent”), and the other Agents party hereto.
W I T N E S S E T H:
1. Borrower, the Lenders (including the Swingline Lender), the Issuing Banks, the Administrative Agent, and the other Agents party thereto are parties to that certain Credit Agreement, dated as of November 9, 2018, as previously amended (the “Credit Agreement”), pursuant to which the Lenders (including the Swingline Lender) and the Issuing Banks agreed to make loans to and extensions of credit on behalf of Borrower.
2. Borrower has requested that the Credit Agreement be amended as provided herein.
3. Subject to the terms and conditions of this Amendment, the parties hereto are willing to enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms. All capitalized terms used but not otherwise defined herein shall have the meanings given in the Credit Agreement, as amended by this Amendment.
SECTION 2. Amendment to Credit Agreement. The following amendment to the Credit Agreement will become effective as of the Amendment Effective Date (as hereinafter defined):
(a) The definition of “Initial Period” contained in Section 1.1 of the Credit Agreement is hereby amended in its entirety as follows:
“ “Initial Period” means the period of time commencing on the Effective Date until the first Business Day after delivery to the Administrative Agent of an item described in clause (a) or (b) below evidencing that Borrower has annualized EBITDA for Borrower’s immediately preceding fiscal quarter greater than or equal to $175,000,000; as evidenced by either (a) the most recent financial statements delivered pursuant to Section 5.1 or (b) a certificate of an Authorized Officer of the Borrower acceptable to the Administrative Agent; provided, however, that Borrower agrees to provide, at the time of each scheduled delivery of financial statements delivered pursuant to Section 5.1 covering the applicable fiscal quarter, evidence verifying such previously certified calculations; and upon such delivery of an item described in clause (a) or (b) above, the Initial Period shall end, and the post-Initial Period shall begin, as of the last day of such immediately preceding fiscal quarter.”
SECTION 3. Effectiveness. This Amendment will become effective on the date of the satisfaction of the following conditions precedent (such date, the “Amendment Effective Date”):
(a) The Administrative Agent shall have received counterparts hereof duly executed by Borrower, the Administrative Agent, the Swingline Lender, the Issuing Banks and the Lenders.
(b) The representations and warranties contained herein and in all other Loan Documents, as amended hereby, shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of the date hereof as if made on the date hereof.
(c) No Event of Default, or event which with the giving of notice or passage of time or both would constitute an Event of Default, shall have occurred and be continuing.
(d) Borrower shall have paid to the Administrative Agent and any other Agent or Lender all fees, costs and expenses agreed in writing and payable in connection with this Amendment becoming effective on the Amendment Effective Date.
SECTION 4. Reaffirmation of Representations and Warranties. To induce the Lenders, the Swingline Lender, the Issuing Banks and the Administrative Agent to enter into this Amendment, Borrower hereby reaffirms, as of the date hereof, the following:
(i) The representations and warranties of Borrower set forth in the Credit Agreement, as amended hereby, are true and correct on and as of the date hereof (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date).
(ii) Each of Borrower and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization and has all requisite authority, permits and approvals, and is in good standing to conduct its business in each jurisdiction in which its business is conducted where the failure to so qualify would have a Material Adverse Effect.
(iii) The execution, delivery and performance by Borrower of this Amendment and each other Loan Document executed or to be executed by it, are within Borrower’s partnership powers and have been duly authorized by all necessary partnership action on behalf of it.
(iv) This Amendment, the Credit Agreement, as amended hereby, and each other Loan Document executed or to be executed by it has been duly executed and delivered by Borrower and constitutes a legal, valid and binding obligation of Borrower enforceable in accordance with their respective terms subject as to enforcement only to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditor rights generally and to general principles of equity.
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(v) The execution, delivery and performance by Borrower of this Amendment and each other Loan Document executed or to be executed by it, do not (a) contravene Borrower’s certificate of formation or other organizational documents, as the case may be, (b) contravene any material contractual restriction, law or governmental regulation or court decree or order binding on or affecting Borrower or any Subsidiary, or (c) result in, or require the creation or imposition of, any Lien, not permitted by Section 7.1 of the Credit Agreement, on any of Borrower’s or any Subsidiary’s properties.
(vi) No Default under the Loan Documents has occurred and is continuing and Borrower is in compliance with the financial covenant set forth in Section 6.2 of the Credit Agreement.
SECTION 5. Reaffirmation of Credit Agreement. This Amendment shall be deemed to be an amendment to the Credit Agreement, and the Credit Agreement, as amended hereby, is hereby ratified, approved and confirmed in each and every respect and shall continue in full force and effect. All references to the Credit Agreement herein and in any other document, instrument, agreement or writing shall hereafter be deemed to refer to the Credit Agreement as amended hereby.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Severability of Provisions. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 8. Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
SECTION 9. Headings. Article and section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.
SECTION 10. Successors and Assigns. The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted under the terms of the Credit Agreement.
SECTION 11. No Oral Agreements. THIS AMENDMENT, THE CREDIT AGREEMENT, AS AMENDED HEREBY, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
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THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
| ALTUS MIDSTREAM LP, a Delaware limited partnership | ||||
| By: | Altus Midstream GP LLC, its general partner | |||
| By: | /s/ Ben C. Rodgers | |||
| Name: | Ben C. Rodgers | |||
| Title: | Chief Financial Officer and Treasurer | |||
[SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| JPMORGAN CHASE BANK, N.A., as Administrative Agent, as an Issuing Bank, as a Swingline Lender and as a Lender | ||
| By: | /s/ Arina Mavilian | |
| Name: | Arina Mavilian | |
| Title: | Authorized Signatory | |
[SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Syndication Agent, as an Issuing Bank and as a Lender | ||
| By: | /s/ Brandon Dunn | |
| Name: | Brandon Dunn | |
| Title: | Director | |
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SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| CITIBANK, N.A., as a Co-Documentation Agent and as a Lender | ||
| By: | /s/ Todd J. Mogil | |
| Name: | Todd J. Mogil | |
| Title: | Vice President | |
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SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| BANK OF AMERICA, N.A., as a Co-Documentation Agent and as a Lender | ||
| By: | /s/ Alia Qaddumi | |
| Name: | Alia Qaddumi | |
| Title: | Director | |
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SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as a Co-Documentation Agent and as a Lender | ||
| By: | /s/ Michael Borowiecki | |
| Name: | Michael Borowiecki | |
| Title: | Authorized Signatory | |
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SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| MUFG BANK, LTD., as a Co-Documentation Agent and as a Lender | ||
| By: | /s/ Todd Vaubel | |
| Name: | Todd Vaubel | |
| Title: | Director | |
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SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| THE BANK OF NOVA SCOTIA, HOUSTON BRANCH, as a Co-Documentation Agent and as a Lender | ||
| By: | /s/ Scott Nickel | |
| Name: | Scott Nickel | |
| Title: | Director | |
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| BARCLAYS BANK PLC, as a Lender | ||
| By: | /s/ Sydney G. Dennis | |
| Name: | Sydney G. Dennis | |
| Title: | Director | |
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| BANK OF MONTREAL, as a Lender | ||
| By: | /s/ James V. Ducote | |
| Name: | James V. Ducote | |
| Title: | Managing Director | |
[SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| TRUIST BANK, formerly known as Branch Banking and Trust Company, as a Lender | ||
| By: | /s/ Lincoln LaCour | |
| Name: | Lincoln LaCour | |
| Title: | Vice President | |
[SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Matthew Brice | |
| Name: | Matthew Brice | |
| Title: | Vice President | |
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SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender | ||
| By: | /s/ Nupur Kumar | |
| Name: | Nupur Kumar | |
| Title: | Authorized Signatory | |
| By: | /s/ Bastien Dayer | |
| Name: | Bastien Dayer | |
| Title: | Authorized Signatory | |
[SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| GOLDMAN SACHS BANK USA, as a Lender | ||
| By: | /s/ Jamie Minieri | |
| Name: | Jamie Minieri | |
| Title: | Authorized Signatory | |
[SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Balaji Rajgopal | |
| Name: | Balaji Rajgopal | |
| Title: | Director - GB | |
[SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| MIZUHO BANK, LTD., as a Lender | ||
| By: | /s/ Ed Sacks | |
| Name: | Ed Sacks | |
| Title: | Authorized Signatory | |
[SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| ROYAL BANK OF CANADA, as a Lender | ||
| By: | /s/ Katy Berkemeyer | |
| Name: | Katy Berkemeyer | |
| Title: | Authorized Signatory | |
[SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| SOCIÉTÉ GÉNÉRALE, as a Lender | ||
| By: | /s/ Diego Medina | |
| Name: | Diego Medina | |
| Title: | Director | |
[SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT - ALTUS]
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| TRUIST BANK, as successor by merger to SunTrust Bank, as a Lender | ||
| By: | /s/ Lincoln LaCour | |
| Name: | Lincoln LaCour | |
| Title: | Vice President | |
[SIGNATURE PAGE TO
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