Exhibit 10.2
Execution
Version
FOURTH AMENDMENT TO CREDIT
AGREEMENT
This FOURTH AMENDMENT TO CREDIT
AGREEMENT (this “ Amendment ”) is entered
into, as of April 9, 2009, by Cheniere Common Units Holding,
LLC, a Delaware limited liability company (the “
Borrower ”), the Loan Parties, 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 from time to time
party thereto (as amended by that certain First Amendment to Credit
Agreement, dated as of September 15, 2008, Second Amendment to
Credit Agreement, dated as of December 31, 2008 and Third
Amendment to Credit Agreement, dated as of April 3, 2009, as
further amended, restated, supplemented or otherwise modified from
time to time, the “ Credit Agreement
”);
B. Borrower has notified the
Administrative Agent, the Collateral Agent and the Lenders that it
desires to amend the Credit Agreement in order to be permitted to
repurchase certain notes issued pursuant to the CEI Indenture;
and
C. Subject to certain conditions as
set forth herein, the Administrative Agent, the Collateral Agent
and the Required Lenders are willing to agree to such amendment
relating to the Credit 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 Administrative
Agent, the Collateral Agent and the Required Lenders, hereby agree
as follows:
|
1.
|
Amendments
to Section 1.01 (Definitions) .
|
|
|
(a)
|
Section 1.01 of the Credit Agreement is
hereby amended by adding the following new definitions in proper
alphabetical sequence:
|
“ Fourth Amendment
” shall mean that certain Fourth Amendment to Credit
Agreement, dated as of April 9, 2009, among Borrower, certain
affiliates of Borrower signatory thereto, the Administrative Agent,
the Collateral Agent and the Required Lenders.
“ Fourth Amendment
Effective Date ” shall mean the date of satisfaction of
the conditions referred to in Section 5 of the Fourth
Amendment.”
|
|
(b)
|
Section 1.01 of the Credit Agreement is
hereby amended by amending clause (iii) of the definition of
“Restricted Payments” by adding the following words
immediately preceding “;” thereof:
|
“, other than as permitted
pursuant to Section 6.04(f)”.
|
2.
|
Amendments
to Section 6.04 (Investments, Loans and Advances)
. Section 6.04 of the Credit
Agreement is hereby amended by:
|
|
|
(a)
|
deleting
“and” at the end of Section 6.04(c);
|
|
|
(b)
|
replacing the
period at the end of Section 6.04(d) with
“;”;
|
|
|
(c)
|
replacing the
period at the end of Sections 6.04(e) “;
and”;
|
|
|
(d)
|
inserting a new
Section 6.04(f) immediately after Section 6.04(e) as
follows:
|
“Investments in an amount not
to exceed $3,350,000 made by CEI with respect to repurchasing
certain of the notes issued pursuant to the CEI
Indenture;”.
|
3.
|
Amendments
to Section 6.16 (Modification of Other
Indebtedness) . Clause
(b) of Section 6.16 of the Credit Agreement is hereby
amended by adding the following words immediately prior to the
period thereof:
|
“and, in the case of the CEI
Indenture, as permitted pursuant to
Section 6.04(f)”.
|
4.
|
Representations and Warranties
. Each Loan 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:
|
|
|
(a)
|
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.
|
|
|
(b)
|
Enforceability . This Amendment has been duly executed and
delivered by such Loan Party and constitutes a legal, valid and
binding obligation of such Loan Party enforceable against such Loan
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.
|
|
|
(c)
|
Authorization, No
Conflicts . The
execution, delivery and performance of this Amendment by each Loan
Party (i) has been duly authorized by all requisite
organizational action of such Loan Party and (ii) will not
(A) violate (1) any provision of law, statute, rule or
regulation, or of the certificate or articles of
|
2
|
|
incorporation or other constitutive
documents or by-laws of such Loan Party, (2) any order of any
Governmental Authority or arbitrator or (3) any provision of
any indenture, agreement or other instrument to which such Loan
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 Loan Party (other than Liens created under the
Security Documents).
|
|
5.
|
Effectiveness . The effectiveness of this Amendment is subject
to the satisfaction of each the following conditions
precedent:
|
|
|
(a)
|
Execution . The Administrative Agent shall have received
duly executed and delivered counterparts of this Amendment that,
when taken together, bear the signatures of the Loan Parties, the
Required Lenders, the Administrative Agent and the Collateral
Agent.
|
|
|
(b)
|
Representations and Warranties
. The representations and warranties
contained herein shall be true and correct in all
respects.
|
|
|
(c)
|
Necessary
Consents . Each Loan
Party shall have obtained all material consents necessary or
advisable in connection with the transactions contemplated by this
Amendment.
|
|
|
(d)
|
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.
|
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.
|
6.
|
Reference to
and Effect Upon the Loan Documents .
|
|
|
(a)
|
Except as
specifically set forth above, the Credit Agreement and each other
Loan Document shall remain in full force and effect and is hereby
ratified and confirmed.
|
|
|
(b)
|
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
Documen
|
