Exhibit 10.1
Execution
Version
THIRD AMENDMENT TO CREDIT
AGREEMENT
AND
THIRD AMENDMENT TO GUARANTEE AND
COLLATERAL AGREEMENT
(NON-CREST
ENTITIES)
This THIRD AMENDMENT TO CREDIT
AGREEMENT AND THIRD AMENDMENT TO GUARANTEE AND COLLATERAL AGREEMENT
(NON-CREST ENTITIES) (collectively, this “
Amendment ”) is entered into, as of
April 3, 2009, by Cheniere Common Units Holding, LLC, a
Delaware limited liability company (the “
Borrower ”), the Loan Parties, the Guarantors
and the Grantors (as defined in the Credit Agreement referenced
below), the Lenders, and The Bank Of New York Mellon, as
administrative agent (in such capacity and together with its
successors, the “ Administrative Agent ”)
and as collateral agent (in such capacity and together with its
successors, the “ Collateral Agent ”).
All capitalized terms used in this Amendment and not otherwise
defined herein have the meanings ascribed to such terms in the
Credit Agreement (as defined below).
Preliminary
Statements
A. Borrower has entered into that
certain Credit Agreement, dated as of August 15, 2008, by and
among the Borrower, the Administrative Agent, certain affiliates of
the Borrower signatory thereto and the Lenders signatory thereto
(as amended by that certain First Amendment to Credit Agreement,
dated as of September 15, 2008, and Second Amendment to Credit
Agreement, dated as of December 31, 2008, as further amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”);
B. In connection with the Credit
Agreement, Borrower and certain of its affiliates have entered into
that certain Guarantee and Collateral Agreement (Non-Crest
Entities) (as amended by that certain First Amendment to Guarantee
and Collateral Agreement (Non-Crest Entities) and Second Amendment
to Guarantee and Collateral Agreement, each dated as of
December 31, 2008, as further amended, restated, supplemented
or otherwise modified from time to time, the “ Non-LNG
Entities Guarantee and Collateral Agreement
”);
C. In connection with the Credit
Agreement, certain affiliates of Borrower have entered into that
certain Guarantee and Collateral Agreement (Crest Entities) (as the
same may be amended, restated, supplemented or otherwise modified
from time to time, the “ LNG Entities Guarantee and
Collateral Agreement ”);
D. Borrower has notified the
Administrative Agent, the Collateral Agent and the Lenders that it
desires to amend the Credit Agreement and the Non-LNG Entities
Guarantee and Collateral Agreement to release Sabine Pass Tug
Services, LLC (“ Sabine Pass Tug Services ”) as
a Guarantor and Grantor therein; and
E. Subject to certain conditions as
set forth herein, the Administrative Agent, the Collateral Agent
and the Lenders are willing to agree to such amendment relating to
the Credit Agreement and the Non-LNG Entities Guarantee and
Collateral Agreement.
NOW THEREFORE, in consideration of
the premises and the agreements, other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Loan Parties, the Guarantors and
the Grantors signatory hereto (each, a “ Cheniere
Party ” and collectively, the “ Cheniere
Parties ”), the Administrative Agent, the Collateral
Agent and the Lenders, hereby agree as follows:
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1.
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Amendments
to the Credit Agreement .
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(a)
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Section 1.01 of the Credit Agreement is
hereby amended by adding the following definitions in proper
alphabetical sequence:
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‘“ Sabine Pass Tug
Services ” shall mean Sabine Pass Tug Services, LLC, a
Delaware limited liability company.
“ Third Amendment
” shall mean that certain Third Amendment to Credit
Agreement, dated as of April
,
2009, among Borrower, certain affiliates of Borrower signatory
thereto, the Administrative Agent, the Collateral Agent and the
Lenders.
“ Third Amendment Effective
Date ” shall mean the date of satisfaction of the
conditions referred to in Section 4 of the Third
Amendment.”
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(b)
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Section 1.01 of the Credit Agreement is
further amended by deleting clause (ix) of the defined term
“Ordinary Course Operations” in its entirety and
replacing such clause (ix) as follows:
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“(ix) (A) funding other
expenses reasonably related to the operations of the Loan Parties
and their Subsidiaries, (B) the organizational maintenance
cost and expenses of Subsidiaries of CEI that are not Loan Parties
or Marketing Entities and (C) any loans or advances made by a
Loan Party to Sabine Pass Tug Services the proceeds of which are
used by Sabine Pass Tug Services to fund the net cash operating
deficit incurred by Sabine Pass Tug Services in connection with its
leases for tugs.”
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(c)
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A new
Section 6.18 shall be inserted into the Credit Agreement,
immediately following the end of Section 6.17, as
follows:
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“No Loan Party shall, or shall
permit its direct or indirect Subsidiaries to, allow Sabine Pass
Tug Services to, directly or indirectly, declare, order, pay, make
or set apart, or agree to declare, order, pay, make or set apart,
any sum for a Restricted Payment to Sabine at any time Sabine Pass
Tug Services has any loans, advances or other obligations
outstanding pursuant to clause (Y) of
Section 6.04(d).”
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(d)
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As of the date
hereof, Sabine Pass Tug Services is hereby removed as a signatory
to the Credit Agreement in its capacity as a Grantor and a
Guarantor therein.
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(e)
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Schedule 1A to
the Credit Agreement is hereby amended to remove Sabine Pass Tug
Services from the list of Grantors and Guarantors set forth
therein, and accordingly Schedule 1A to the Credit Agreement is
hereby deleted and replaced in its entirety with Schedule 1A as
attached hereto.
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(f)
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Schedule 1C to
the Credit Agreement is hereby amended to remove Sabine Pass Tug
Services from the list of Non-LNG Entities set forth therein, and
accordingly Schedule 1C to the Credit Agreement is hereby deleted
and replaced in its entirety with Schedule 1C as attached
hereto.
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2.
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Amendments
to the Non-LNG Entities Guarantee and Collateral
Agreement .
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(a)
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Section 1.01 of the Non-LNG Entities
Guarantee and Collateral Agreement is hereby amended by adding the
following definitions in proper alphabetical sequence:
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“ Third Amendment
” shall mean that certain Third Amendment to Guarantee and
Collateral Agreement (Non-Crest Entities), dated as of April
,
2009, among the Borrower, certain affiliates of the Borrower
signatory thereto, the Administrative Agent, the Collateral Agent
and the Lenders.
“ Third Amendment Effective
Date ” shall mean the date of satisfaction of the
conditions referred to in Section 4 of the Third
Amendment.”
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(b)
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As of the date
hereof, Sabine Pass Tug Services is hereby removed as a signatory
to the Non-LNG Entities Guarantee and Collateral Agreement in its
capacity as a Grantor and a Guarantor therein.
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(c)
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Schedule 1 to
the Non-LNG Entities Guarantee and Collateral Agreement is hereby
amended to remove Sabine Pass Tug Services from the list of
Intercompany Loan Parties set forth therein, and accordingly
Schedule 1 to the Non-LNG Entities Guarantee and Collateral
Agreement is hereby deleted and replaced in its entirety with
Schedule 1 as attached hereto.
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(d)
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Schedule
4.07(a) of the Non-LNG Entities Guarantee and Collateral Agreement
is hereby amended to remove Cheniere Midstream Holdings, Inc. as
the Grantor of the Pledged Equity Interests of Sabine Pass Tug
Services and accordingly Schedule 4.07(a) to the Non-LNG Entities
Guarantee and Collateral Agreement is hereby deleted and replaced
in its entirety with Schedule 4.07(a) as attached
hereto.
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3.
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Representations and Warranties
. Each Cheniere Party hereby
represents and warrants to the Administrative Agent, the Collateral
Agent and the Lenders (which representations and warranties shall
survive the execution and delivery of this Amendment), as
follows:
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(a)
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Absence of
Defaults . No event has
occurred and is continuing or will result from the consummation of
the transactions contemplated by this Amendment that would
constitute a Default or Event of Default after giving effect to
this Amendment.
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(b)
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Enforceability . This Amendment has been duly executed and
delivered by such Cheniere Party and constitutes a legal, valid and
binding obligation of such Cheniere Party enforceable against such
Cheniere Party in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a
proceeding in equity or at law.
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(c)
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Authorization, No Conflicts
. The execution, delivery and
performance of this Amendment by each Cheniere Party (i) has
been duly authorized by all requisite organizational action of such
Cheniere Party and (ii) will not (A) violate (1) any
provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive
documents or by-laws of such Cheniere Party, (2) any order of
any Governmental Authority or arbitrator or (3) any provision
of any indenture, agreement or other instrument to which such
Cheniere Party is a party or by which it or any of its property is
or may be bound, (B) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a
default under, or give rise to any right to accelerate or to
require the prepayment, repurchase or redemption of any obligation
under any such indenture, agreement or other instrument or
(C) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter
acquired by such Cheniere Party (other than Liens created under the
Security Documents).
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4.
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Effectiveness . The effectiveness of this Amendment is subject
to the satisfaction of each the following conditions
precedent:
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(a)
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Execution . The Administrative Agent shall have received
duly executed and delivered counterparts of this Amendment that,
when taken together, bear the signatures of the Cheniere Parties,
each Lender, the Administrative Agent and the Collateral
Agent.
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(b)
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Representations and Warranties
. The representations and warranties
contained herein shall be true and correct in all
respects.
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(c)
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Restated
Global Intercompany Note . The Collateral Agent shall have received an
original restated Global Intercompany Note in the form of Exhibit F
to the Credit Agreement, executed by each of the parties originally
signatory thereto, other than Sabine Pass Tug Services (which shall
be removed as a Payee signatory thereto but shall remain as a Maker
signatory thereto), and such restated Global Intercompany Note
shall have been duly and validly pledged to the Collateral Agent,
for the ratable benefit of the Secured Parties, accompanied by
instruments of transfer endorsed in blank.
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(d)
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Other
Documents . The Loan
Parties shall, promptly upon the execution thereof, deliver the
Terminal Marine Services Agreement and all documents, instruments
and agreements (including all schedules, exhibits, annexes and
side-letters thereto) among Total Gas & Power North
America, Inc., Chevron U.S.A. Inc. (collectively, the “
Assuming Parties ”) and Sabine Pass Tug Services or
any of its Affiliates in connection with the Assuming Parties
agreement to reimburse, or assume the obligations of, Sabine Pass
Tug Services with respect to certain leases of tugs;
provided that it is agreed that all such documents,
instruments and agreements with respect to the Assuming Parties
shall be substantially similarly to the drafts attached to the
Terminal Marine Services Agreement dated March 13, 2009
provided to the Required Lenders by email on March 19,
2009.
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(e)
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Necessary
Consents . Each Cheniere
Party shall have obtained all material consents necessary or
advisable in connection with the transactions contemplated by this
Amendment.
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(f)
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Fees .
All fees and expense reimbursements payable by the Borrower to the
Administrative Agent, the Collateral Agent and the Lenders for
which invoices have been presented shall have been paid in
full.
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Notwithstanding anything to the
contrary in this Amendment, each Lender by delivering its signature
page to this Amendment shall be deemed to have acknowledged receipt
of and consented to and approved the Amendment and each other
document required to be approved by any Agent or any Lender, as
applicable, on the date such Lender delivers its signature to this
Amendment and the Administrative Agent shall be entitled to rely on
such confirmation.
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5.
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Reference to
and Effect Upon the Loan Documents .
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(a)
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Except as
specifically set forth above, each of the Credit Agreement, the
Non-LNG Entities Guarantee and Collateral Agreement and each other
Loan Document shall remain in full force and effect and is hereby
ratified and confirmed.
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(b)
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Except to the
extent expressly set forth herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of Agents or any Lender under the Loan
Documents, or any other document, instrument or agreement executed
and/or delivered in connection therewith.
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(c)
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Any reference
in any Loan Document to the Credit Agreement or the Non-LNG
Entities Guarantee and Collateral Agreement shall be a reference to
the Credit Agreement and the Non-LNG Entities Guarantee and
Collateral Agreement as modified by this Amendment, and any
reference in any Loan Document to any other Loan Document shall be
a reference to such referenced Loan Document as modified by this
Amendment.
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(d)
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This Amendment
is a Loan Document. The provisions of Section 9.15 of the
Credit Agreement shall apply with like effect to this
Amendment.
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6.
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Further
Assurances . Each
Cheniere Party hereby agrees to authorize, execute and deliver all
additional instruments, certificates, financing statements,
agreements or documents, and take all such actions as the
Administrative Agent, the Collateral Agent or the Required Lenders
may reasonably request for the purposes of implementing or
effectuating the provisions of this Amendment.
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7.
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Governing
Law . THIS AMENDMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
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8.
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Headings . Section headings in this Amendment are
included herein for convenience of reference only and shall not
constitute part of this Amendment for any other
purposes.
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9.
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Counterparts . This Waiver may be executed by all parties
hereto in any number of separate counterparts each of which may be
delivered in original, facsimile or other electronic (e.g.,
“.pdf”) form, and all of such counterparts taken
together constitute one instrument.
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10.
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Severability . In case any one or more of the provisions
contained in this Amendment shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other
provision hereof, and this Amendment shall be construed as if such
invalid, illegal, or unenforceable provision had never been
contained herein.
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11.
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WAIVER OF
JURY TRIAL . EACH PARTY
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT OR ANY
OTHER LOAN DOCUMENTS AND FOR ANY COUNTERCLAIM THEREIN.
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12.
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Final
Agreement of the Parties . THIS AMENDMENT, THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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[ Remainder of this page
intentionally left blank]
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CHENIERE
COMMON UNITS HOLDING, LLC , as Borrower and as a Grantor under the Non-LNG
Entities Guarantee and Collateral Agreement
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By:
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Name:
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Graham A.
McArthur
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Title:
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Treasurer
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CHENIERE LNG
SERVICES S.A.R.L., as a
Grantor under the Non-LNG Entities Guarantee and Collateral
Agreement
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By:
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Name:
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Graham A.
McArthur
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Title:
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Treasurer
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CHENIERE
CORPUS CHRISTI PIPELINE, L.P., as a Loan Party
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