EXHIBIT 10.1
EXECUTION COPY
CONSENT, WAIVER AND AMENDMENT NO.
2
TO CREDIT
AGREEMENT
This CONSENT, WAIVER AND AMENDMENT
NO. 2 TO CREDIT AGREEMENT (this “ Waiver and Amendment
”), dated as of May 5, 2005, is made among Sabine Pass
LNG, L.P., a Delaware limited partnership (the “
Borrower ”), Société Générale, in
its capacity as administrative agent for the Lenders (the “
Agent ”), HSBC Bank USA, National Association, in its
capacity as collateral agent for the Lenders (the “
Collateral Agent ”) and the Lenders party to the
Credit Agreement (defined below).
W I T N E S S E T
H
WHEREAS, the Borrower, the Agent and
the Collateral Agent are party to a Credit Agreement dated as of
February 25, 2005 (as amended, modified and supplemented and
in effect from time to time, the “ Credit Agreement
”), pursuant to which the lenders from time to time party
thereto (the “ Lenders ”) have agreed to make
loans to the Borrower in an aggregate principal amount of
$822,000,000;
WHEREAS, the Borrower desires to
enter into an agreement substantially in the form attached hereto
as Exhibit A (the “ Assumption Agreement ”) for
the assumption and adoption of certain obligations under a
Settlement and Purchase Agreement dated June 14, 2001 (the
“ Settlement Agreement ”) by and among Cheniere
Energy, Inc. (“ Cheniere ”), Cheniere FLNG, L.P.
(formerly known as Cheniere LNG, Inc. and before that CXY
Corporation), Crest Investment Company, Crest Energy, L.L.C. and
Freeport LNG Terminal, LLC;
WHEREAS, the Borrower has requested
that the Lenders (1) consent to the Borrower entering into the
Assumption Agreement, (ii) waive certain Events of Default
under the Credit Agreement in connection with the Settlement
Agreement and (iii) waive or amend certain provisions of the
Credit Agreement, the Pledge Agreement, the Security Agreement and
the Collateral Agency Agreement to permit the Assumption Agreement,
each as more fully described in the waiver request letter (the
“ Waiver Request Letter ”) attached hereto as
Exhibit B;
NOW THEREFORE, in consideration of
the mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
Section 1. Definitions .
Capitalized terms (including those used in the preamble and the
recitals above) not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement and the
principles of interpretation set forth therein shall apply
herein.
Section 2. Consent and
Waiver . Subject to the satisfaction of the conditions
precedent set forth in Section 8 hereof, the Agent, the
Collateral Agent and the Lenders hereby
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(a) consent to the Borrower entering into the
Assumption Agreement, (b) waive any Defaults or Events of
Default under the Credit Agreement arising directly as a result of
the existence of the Settlement Agreement or the execution and
delivery of the Assumption Agreement and (c) waive compliance
with (i) Section 8.24 of the Credit Agreement solely to
the extent that it relates to the Assumption Agreement,
(ii) Section 8.30 of the Credit Agreement solely to the
extent necessary to permit the Borrower to enter into the
Assumption Agreement and (iii) the requirement of
Section 8.21(c) of the Credit Agreement to deliver Ancillary
Documents other than (X) a legal opinion of counsel to
Cheniere, with respect to the due authorization, execution and
delivery of the Indemnification Agreement and its validity and
enforceability and such other matters as the Agent may reasonably
request, (Y) evidence of the due authorization of Cheniere to
execute, deliver and perform the Indemnification Agreement and
(Z) evidence of the due authorization of the Borrower to
execute, deliver and perform the Assumption Agreement.
Section 3. Amendments of the
Credit Agreement . Subject to the satisfaction of the
conditions precedent set forth in Section 8 hereof, the Credit
Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit
Agreement is amended by adding the following definitions in the
appropriate alphabetical locations:
(i) “ Assumption
Agreement ” shall mean the agreement for the assumption
and adoption by the Pledgors, the Operator, the Borrower, Cheniere
LNG, Inc., Cheniere LNG Terminals, Inc., Corpus Christi LNG-GP,
Inc., Corpus Christi LNG-LP, Inc., Corpus Christi LNG, L.P., Corpus
Christi Interests, LLC., Creole Trail LNG-GP, Inc., Creole Trail
LNG, L.P., Cheniere Energy Shared Services, Inc., Cheniere MGT
Services, LLC, Corpus Christi LNG-LP, LLC, Creole Trail LNG-LP,
LLC, Cheniere FLNG-GP, LLC and Cheniere LNG-LP Interests, LLC of
certain obligations under the Settlement
Agreement.”
(ii) “ Indemnification
Agreement ” shall mean an indemnification agreement
substantially in the form of Exhibit A to the Assumption
Agreement.
(iii) “ Settlement
Agreement ” shall mean the Settlement and Purchase
Agreement dated as of June 14, 2001 among Cheniere Energy,
Inc., Cheniere FLNG, L.P., Crest Energy L.L.C., Crest Investment
Company and Freeport LNG Terminal LLC, as modified by the letter
agreement dated February 27, 2003.”
(b) The definition of
“Restricted Payments” in Section 1.01 of the
Credit Agreement is amended by adding the following sentence
immediately after the last sentence thereof:
“Notwithstanding the
foregoing, any payment made by the Borrower pursuant to the
Settlement Agreement shall constitute a Restricted Payment, except
to the extent that the funds utilized to effect any such payment
shall have been provided by Cheniere Energy, Inc.”
(c) The definition of
“Material Project Documents” in Section 1.01 of
the Credit Agreement is amended by replacing “(i)” with
“(j)” and inserting the phrase “(i)
the
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Indemnification Agreement” immediately
following the phrase “Noble Option Agreement” in the
fourth line thereof.
(d) The definition of “Other
Project Documents” in Section 1.01 of the Credit
Agreement is amended by replacing “(b)” with
“(c)” and inserting the phrase “(b) the
Assumption Agreement,” immediately following the term
“Agreement” appearing as the first term in the second
line of the definition thereof.
(e) Section 9.01(c) of the
Credit Agreement is amended by adding “or the Indemnification
Agreement” following the reference to “or any other
Financing Document” in the second line thereof.
Section 4. Waiver of the
Pledge Agreement . Subject to the satisfaction of the
conditions precedent set forth in Section 8 hereof, the Agent,
the Collateral Agent and the Lenders hereby waive compliance with
clause (d) of Article IV of the Pledge Agreement, solely to
the extent necessary to permit the Pledgors to enter into the
Assumption Agreement.
Section 5. Amendment of the
Pledge Agreement . Subject to the satisfaction of the
conditions precedent set forth in Section 8 hereof, the Agent,
the Collateral Agent and the Lenders hereby consent to the
amendment of Section 5.05(e) of Article V of the Pledge
Agreement to include the following provisions at the end of the
first sentence thereof:
“ provided that, as a
condition precedent to any such sale or transfer of all or
substantially all of the assets constituting the Project by the
Collateral Agent to any purchaser or transferee, such purchaser or
transferee and Cheniere Energy, Inc. shall (i) enter into an
assumption agreement substantially in the form of the Assumption
Agreement unless, at the time of each such transfer, Cheniere
Energy, Inc. or any of its direct and indirect affiliates, joint
ventures, and subsidiaries that are involved in the LNG business
have under contract at one or more LNG facilities it retains, the
right and obligation to process and receive a tariff for processing
at least one Bcf of gas per day, for a period of at least five
years following such transfer of assets and (ii) to the extent
any purchaser or transferee is required to enter into any such
assumption agreement, be assigned the benefits of the
Indemnification Agreement.”
Section 6. Amendment of the
Security Agreement . Subject to the satisfaction of the
conditions precedent set forth in Section 8 hereof, the Agent,
the Collateral Agent and the Lenders hereby consent to the
amendment of clause 6.01(d) of Article VI of the Security Agreement
to include the following provisions at the end of the first
sentence thereof:
“ provided that, as a
condition precedent to any such sale or transfer of all or
substantially all of the assets constituting the Project by the
Collateral Agent to any purchaser or transferee, such purchaser or
transferee and Cheniere Energy, Inc. shall (i) enter into an
assumption agreement substantially in the form of the Assumption
Agreement unless, at the time of each such transfer, Cheniere
Energy, Inc. or any of its direct and indirect affiliates, joint
ventures, and subsidiaries that are involved in the LNG business
have under contract at one or
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more LNG facilities it retains, the
right and obligation to process and receive a tariff for processing
at least one Bcf of gas per day, for a period of at least five
years following such transfer of assets and (ii) to the extent
any purchaser or transferee is required to enter into any such
assumption agreement, be assigned the benefits of the
Indemnification Agreement.”
Section 7. Amendment of the
Collateral Agency Agreement . Subject to the satisfaction of
the conditions precedent set forth in Section 8 hereof, the
Agent, the Collateral Agent and the Lenders hereby consent to the
amendment of Section 4.02 of the Collateral Agency Agreement
to include the following phrase “and obligations under the
Assumption Agreement (other than Restricted Payments) to the extent
that funds have been deposited by Cheniere Energy, Inc. to the
Revenue Account for the purpose of paying such obligations”
after the words “Operation and Maintenance Expenses” in
clause (1) of each of subsections (b) and (c) of
such Section 4.02.
Section 8 .
Conditions Precedent . This Waiver and Amendment shall
become effective on the date on which the Agent has received
(a) counterparts of this Waiver and Am
