Exhibit 10.67
Execution Version
WAIVER
TO
CREDIT AGREEMENT AND GUARANTEE
AND COLLATERAL AGREEMENT
(NON-CREST
ENTITIES)
dated as of December 31,
2008
This Waiver (this “
Waiver ”) to Credit Agreement and to Guarantee
and Collateral Agreement (Non-Crest Entities) is dated as of
December 31, 2008, and pertains to (i) that certain
Credit Agreement dated as of August 15, 2008 by and among
Cheniere Common Units Holding, LLC, a Delaware limited liability
company (the “ Borrower ”), The Bank of
New York Mellon, as administrative agent (in such capacity and
together with its successors, the “ Administrative
Agent ”), certain affiliates of the Borrower
signatory thereto and the Lenders signatory thereto (as the same
may be amended, restated, increased or extended from time to time,
the “ Credit Agreement ”) and
(ii) that certain Guarantee and Collateral Agreement
(Non-Crest Entities) dated as of August 15, 2008, executed by
Borrower and certain affiliates of Borrower signatory thereto in
favor of The Bank of New York Mellon, as collateral agent (in such
capacity and together with its successors, the “
Collateral Agent ”) (as the same may be
amended, restated, increased or extended from time to time, the
“ Non-LNG Entities Guarantee and Collateral
Agreement ”). Capitalized terms used and not defined
herein shall have the meanings set forth in the Credit
Agreement.
RECITALS
WHEREAS, Borrower has notified the
Lenders and the Administrative Agent that Cheniere Midstream
Holdings, Inc. (“ Cheniere Midstream Holdings
”) intends to dissolve its wholly owned subsidiary Cheniere
LNG Services, Inc. (“ Cheniere LNG Services
”), and upon such dissolution all of the assets of Cheniere
LNG Services will be distributed to Cheniere Midstream Holdings
(the “ Proposed Dissolution ”);
and
WHEREAS, the Proposed Dissolution
would not be permitted by Section 6.05(a) of the Credit
Agreement or Section 5.06(ii) of the Non-LNG Entities
Guarantee and Collateral Agreement;
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which hereby is acknowledged, the
Borrower, Cheniere Midstream Holdings, Cheniere LNG Services, the
Required Lenders, the Administrative Agent and the Collateral Agent
agree as follows:
|
1.
|
Waiver -
Credit Agreement . So
long as the conditions set forth in Section 3 below are
satisfied, the Required Lenders and the Administrative Agent are
willing to waive the provisions of Section 6.05(a) of the
Credit Agreement to the extent, and solely to the extent, to permit
the dissolution of Cheniere LNG Services and the distribution of
all of the assets of Cheniere LNG Services to Cheniere Midstream
Holdings.
|
|
2.
|
Waiver -
Non-LNG Entities Guarantee and Collateral Agreement
. So long as the conditions set
forth in Section 3 below are satisfied, the Required Lenders
and the Collateral Agent are willing to waive the provisions of
Section 5.06(ii) of the Non-LNG Entities Guarantee and
Collateral Agreement to the extent, and solely to the extent, to
permit the dissolution of Cheniere LNG Services and the
distribution of all of the assets of Cheniere LNG Services to
Cheniere Midstream Holdings.
|
|
3.
|
Conditions
to Effectiveness . This
Waiver shall become effective upon satisfaction of each of the
following conditions precedent:
|
|
|
(a)
|
Immediately
upon the Proposed Dissolution, all of the assets of Cheniere LNG
services shall have been distributed to Cheniere Midstream
Holdings.
|
|
|
(b)
|
Immediately
upon the Proposed Dissolution, the membership certificates issued
to Cheniere LNG Services by Sabine Pass Tug Services, LLC shall
have been cancelled, and such certificates shall have been
re-issued to Cheniere Midstream Holdings, and Cheniere Midstream
Holdings shall have delivered such membership certificates, along
with executed stock powers, to the Collateral Agent for the ratable
benefit of the Lenders as security for the Obligations.
|
|
|
(c)
|
All fees and
expense reimbursements payable by the Borrower to the
Administrative Agent, the Collateral Agent or the Lenders for which
invoices have been presented shall have been paid in
full.
|
|
|
(d)
|
Both before and
after giving effect to this Waiver, no Default nor Event of Default
shall have occurred and be continuing.
|
|
|
(e)
|
The
Administrative Agent, Collateral Agent and the Lenders shall have
received such other documents, information or agreements regarding
the Proposed Dissolution as Administrative Agent, Collateral Agent
or the Lenders may reasonably request on or prior to the date
hereof.
|
|
|
(f)
|
The Collateral
Agent shall have received duly executed and delivered counterparts
of this Waiver that, when taken together, bear the signatures of
the Borrower, Cheniere Mi
|
