FIFTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT
Exhibit 10.5
EXECUTION
VERSION
FIFTH AMENDMENT TO CREDIT AGREEMENT AND
CONSENT
This
FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
is entered into, as of September 17, 2009, by Cheniere Common Units Holding,
LLC, a Delaware limited liability company (the “Borrower”),
the Loan Parties, the Lenders party hereto 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. The
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, Third Amendment to Credit Agreement, dated as of April 3, 0000, Xxxxxx
Xxxxxxxxx to Credit Agreement, dated as of April 9, 2009, Amendment No. Four-A
to Credit Agreement, dated as of April 27, 2009, Amendment No. Four-B to Credit
Agreement, dated as of April 28, 2009, Amendment No. Four-C to Credit Agreement,
dated as of June 23, 2009, and Amendment No. Four-D to Credit Agreement, dated
as of June 29, 2009, as further amended, restated, supplemented or otherwise
modified from time to time, the “Credit
Agreement”);
B. The
Borrower has notified the Administrative Agent, the Collateral Agent and the
Lenders that it desires to amend the Credit Agreement as set forth herein;
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 the amendments
to the Credit Agreement as set forth herein.
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:
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1.
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Amendments to Credit
Agreement. On the Fifth Amendment Effective Date, the
Credit Agreement is amended as
follows:
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1.1.
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Amendments to Section
1.01 (Definitions).
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1.1.1.
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Section
1.01 of the Credit Agreement is hereby amended by adding the following new
definitions in proper alphabetical
sequence:
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1.1.2.
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“Fifth
Amendment” shall mean that certain Fifth Amendment to Credit
Agreement, dated as of September 17, 2009, among the Borrower, certain
affiliates of the Borrower signatory thereto, the Administrative Agent,
the Collateral Agent and the Required
Lenders.
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“Fifth Amendment
Effective Date” shall mean the date of satisfaction of the
conditions referred to in Section 3 of the Fifth
Amendment.
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NY\1543172.14
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1.1.3.
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Section
1.01 of the Credit Agreement is further amended by deleting the existing
definition of “CEI Threshold” and replacing it as
follows:
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“CEI Threshold”
shall mean the sum of (i) $150,000,000, of which no more than $50,000,000
may be utilized for the purposes of issuing Guarantees in respect of
obligations not constituting Indebtedness of the Marketing Entities and
(ii) the amounts which are used to fund the obligations owing under the
CMI TUA by CMI. For the avoidance of doubt, the transactions
permitted pursuant to Sections 6.01(h), 6.04(d)(X) and 6.10(g)(X) shall
not in the aggregate exceed the amount set forth in the preceding
sentence.”
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1.1.4.
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Section
1.01 of the Credit Agreement is further amended by deleting the existing
definition of “CMI” and replacing it as
follows:
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“CMI” shall mean
Cheniere Marketing, LLC, a Delaware limited liability company (formerly
known as Cheniere Marketing, Inc.).
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1.2.
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Amendment to Section
6.05 (Mergers, Consolidations, Sales of Assets and Acquisitions; Issuance
of Equity). Clause (b) of Section 6.05 of the Credit
Agreement is hereby amended as
follows:
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1.2.1.
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adding
“and” immediately following “;” at the end of sub-clause (i)(B) of
Section 6.05(b); and
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1.2.2.
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replacing
the sub-clause reference “C” with “ii” in Section 6.05(b) so that Section
6.05(b)(i)(C) is read as Section
6.05(b)(ii).
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1.3.
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Technical Amendment to
Section 9.08(b) (Waivers; Amendment). Clause (iii) in
the proviso set forth in Section 9.08(b) of the Credit Agreement is hereby
amended by deleting incorrect section references contained therein to
Sections 2.12 and 2.10, respectively, and replacing such references
therein with “Section 2.10” and “Section 2.09”,
respectively.
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2.
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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:
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2.1.
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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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NY\1543172.14
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2.2.
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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.
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2.3.
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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 Person 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 Person, (2) any order of any Governmental Authority or
arbitrator or (3) any provision of any indenture, agreement or other
instrument to which such Person 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 Person (other than Liens created under
the Security Documents).
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2.4.
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Incorporation of
Representations and Warranties. The representations and warranties
contained in Article III of the Credit Agreement are and will be true and
correct in all material respects on and as of the date hereof to the same
extent as though made on and as of this date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case they were true and correct in all material respects on and as
of such earlier date.
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3.
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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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3.1.
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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 Loan Parties, the Required Lenders, the Administrative
Agent and the Collateral Agent.
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3.2.
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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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3.3.
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Necessary
Consents. Each Loan Party shall have obtained all
material consents necessary or advisable in connection with the
transactions contemplated by this
Amendment.
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3.4.
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Fees. All
fees and expense reimbursement 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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3.5.
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Assumption
Agreement. Cheniere Marketing, LLC shall have duly
executed and delivered an Assumption Agreement in the form of Exhibit A
attached hereto.
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3.6.
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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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4.
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Reference to and
Effect Upon the Loan
Documents.
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4.1.
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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. 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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4.2.
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Any
reference in any Loan Document to the Credit Agreement shall be a
reference to the Credit 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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4.3.
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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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5.
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Further
Assurances. Each Loan 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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6.
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Governing Law.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF.
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7.
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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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8.
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Counterparts. This
Amendment 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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9.
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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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10.
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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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11.
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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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NY\1543172.14
5
EXECUTION
VERSION
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CHENIERE COMMON UNITS HOLDING,
LLC, as Borrower
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE CORPUS CHRISTI
PIPELINE, L.P., as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE CREOLE TRAIL PIPELINE,
L.P., as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE ENERGY OPERATING CO.,
INC., as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE MIDSTREAM HOLDINGS,
INC., as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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Signature Page to Fifth
Amendment
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CHENIERE PIPELINE
COMPANY, as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE PIPELINE GP INTERESTS,
LLC, as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE SOUTHERN TRAIL GP,
INC., as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE SOUTHERN TRAIL
PIPELINE, L.P., as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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GRAND CHENIERE PIPELINE,
LLC, as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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Signature Page to Fifth
Amendment
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CHENIERE ENERGY SHARED
SERVICES, INC., as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE ENERGY, INC.,
as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE LNG HOLDINGS,
LLC, as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE LNG O&M SERVICES,
LLC, , as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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CHENIERE LNG TERMINALS,
INC., as a Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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Signature Page to Fifth
Amendment
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CHENIERE LNG, INC., as a
Loan Party
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By:
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/S/
XXXXXX X. XXXXXXXX
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Name:
Xxxxxx X. XxXxxxxx
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Title: Treasurer
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Signature Page to Fifth
Amendment
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GSO SPECIAL SITUATIONS FUND
LP, as a Lender
By:
GSO Capital Partners LP, its investment advisor
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By:
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/S/
XXXXXX FAN
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Name:
Xxxxxx Fan
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Title:
Chief Legal Officer
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GSO COF FACILITY LLC, as
a Lender
By:
GSO Capital Partners LP, as Portfolio Manager
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By:
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/S/
XXXXXX FAN
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Name:
Xxxxxx Fan
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Title:
Chief Legal Officer
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GSO SPECIAL SITUATIONS OVERSEAS
MASTER FUND LTD, as a Lender
By:
GSO Capital Partners LP, its investment advisor
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By:
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/S/
XXXXXX FAN
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Name:
Xxxxxx Fan
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Title:
Chief Legal Officer
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BLACKSTONE
DISTRESSED SECURITIES FUND L.P.,
By:
Blackstone Distressed Securities Associates L.P., its general
partner
By: Blackstone
DD Associates L.L.C., its general partner
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By:
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/S/
XXXXXX FAN
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Name:
Xxxxxx Fan
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Title:
Authorized Signatory
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Signature Page to Fifth
Amendment
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THE BANK OF NEW YORK
MELLON, as Administrative Agent and Collateral Agent
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By:
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/S/
XXXXXXX XXXXXXXXX
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Name:
Xxxxxxx Xxxxxxxxx
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Title:
Vice President
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Signature
Page to Fifth Amendment
EXECUTION
VERSION
EXHIBIT
A TO THE
FIFTH
AMENDMENT
TO
THE CREDIT AGREEMENT
ASSUMPTION AGREEMENT, dated as of
September ___, 2009, made by Cheniere Marketing, LLC (formerly
Cheniere Marketing, Inc.), a Delaware limited liability company, in favor of The
Bank of New York Mellon, (“BNY”) as
collateral agent (in such capacity, the “Collateral
Agent”) for (i) the banks and other financial institutions and entities
(the “Lenders”)
parties to the Credit Agreement referred to below, and (ii) the other Secured
Parties (as defined in the Guarantee and Collateral Agreement (as hereinafter
defined)). All capitalized terms not defined herein shall have the
meaning ascribed to them in such Credit Agreement.
W I T N E
S S E T H:
WHEREAS, Cheniere Common Units Holding,
LLC (the “Borrower”),
the affiliates of Borrower signatory thereto, the Lenders and BNY, as
administrative agent have entered into a Credit Agreement, dated as of August
15, 2008 (as amended, supplemented, replaced or otherwise modified from time to
time, the “Credit
Agreement”);
WHEREAS, in connection with the Credit
Agreement, the Borrower and certain of its affiliates, including Cheniere
Marketing, Inc., have entered into the Guarantee and Collateral Agreement, dated
as of August 15, 2008 (as amended, supplemented or otherwise modified from time
to time, the “Guarantee and
Collateral Agreement”) in favor of the Collateral Agent for the benefit
of the Secured Parties;
WHEREAS, after becoming a party to the
Guarantee and Collateral Agreement, Cheniere Marketing, Inc. changed its name to
Cheniere Marketing, LLC; and
WHEREAS, Cheniere Marketing, LLC has
agreed to execute and deliver this Assumption Agreement in order to become a
party to the Guarantee and Collateral Agreement;
NOW, THEREFORE, IT IS
AGREED:
1. Guarantee and Collateral
Agreement. By executing and delivering this Assumption
Agreement, Cheniere Marketing, LLC hereby becomes a party to the Guarantee and
Collateral Agreement as a Grantor thereunder with the same force and effect as
if originally named therein as a Grantor and, without limiting the generality of
the foregoing, hereby expressly assumes all obligations and liabilities of a
Grantor thereunder. Cheniere Marketing, LLC hereby represents and
warrants that each of the representations and warranties contained in Section 4
of the Guarantee and Collateral Agreement is true and correct on and as the date
hereof (after giving effect to this Assumption Agreement) as if made on and as
of such date.
NY\1543172.14
2. GOVERNING
LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the undersigned has
caused this Assumption Agreement to be duly executed and delivered as of the
date first above written.
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CHENIERE
MARKETING, LLC
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By:
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Name:
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Title:
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Signature
Page to Assumption Agreement
NY\1543172.14
