SECOND AMENDMENT TO THE COMMON TERMS AGREEMENT AND CONSENT TO THE CREDIT FACILITY AGREEMENT
Exhibit 10.75
Execution Version
SECOND AMENDMENT TO THE COMMON TERMS AGREEMENT AND CONSENT
TO THE CREDIT FACILITY AGREEMENT
This SECOND AMENDMENT TO THE COMMON TERMS AGREEMENT AND CONSENT TO THE CREDIT FACILITY AGREEMENT (this “Second Amendment”), dated as of January 26, 2021, is in respect of (a) the Common Terms Agreement, dated as of August 19, 2019, by and among Venture Global Calcasieu Pass, LLC, a Delaware limited liability company (the “Borrower”), TransCameron Pipeline, LLC (the “Guarantor”), Natixis, New York Branch, as the Credit Facility Agent on behalf of itself and the Credit Facility Lender Parties (in such capacity, the “Credit Facility Agent”), each other Facility Agent that is Party thereto from time to time on behalf of itself and the Facility Lenders under its Facility Agreement, and Mizuho Bank, Ltd., as the Intercreditor Agent for the Facility Lenders (in such capacity, the “Intercreditor Agent”), as amended by that certain Consent and Amendment to the Common Terms Agreement and Consent to the Credit Facility Agreement (the “First Amendment”), dated as of December 28, 2020, by and among Borrower, Guarantor, the Credit Facility Lenders party thereto, Credit Facility Agent and Intercreditor Agent (as so amended and as may be amended, amended and restated, modified or supplemented from time to time, the “Common Terms Agreement”) and (b) the Credit Facility Agreement, dated as of August 19, 2019 (as amended, amended and restated, modified or supplemented from time to time, the “Credit Facility Agreement”), by and among the Borrower, the Guarantor, the Lenders party thereto from time to time, the Issuing Banks party thereto from time to time, the Credit Facility Agent, and solely for purposes of Section 3.06 thereof, Mizuho Bank (USA), as Collateral Agent (in such capacity, the “Collateral Agent”). All capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Common Terms Agreement, or if not defined therein, the Credit Facility Agreement. For all purposes of this Second Amendment, except as otherwise expressly provided, the rules of interpretation set forth in Section 1.2 of Schedule A (Common Definitions and Rules of Interpretation) of the Common Terms Agreement are hereby incorporated by reference, mutatis mutandis, as if fully set forth herein.
WHEREAS, the Borrower has requested that the Credit Facility Lenders under the Credit Facility Agreement (collectively, the “Lenders” and each individually, a “Lender”), the Credit Facility Agent and the Intercreditor Agent consent and agree, and the Lenders constituting the Required Lenders, the Credit Facility Agent and the Intercreditor Agent are willing to consent and agree, to amend the Commons Terms Agreement on the terms and conditions set forth herein and in accordance with Section 23.15 of the Commons Terms Agreement, Section 4 of the Intercreditor Agreement and Section 11.01 of the Credit Facility Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the agreements, provisions and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Consent and Amendment. Upon the effectiveness of this Second Amendment in accordance with Section 2 below, each of the Lenders party hereto, the Credit Facility Agent (at the direction of Required Lenders) and the Intercreditor Agent hereby consent and agree to amend the Common Terms Agreement as follows:
1.1 Section 12.5(h) (Material Project Agreements) of the Common Terms Agreement shall be amended by replacing the references to “such Subsequent Material Project Agreement” in clauses (i), (ii), (iii) and (v) thereof with “such new Material Project Agreement or such Subsequent Material Project Agreement”.
1.2 Clause (l) of the definition of “Material Project Agreements” set forth on Section 1.3 of Schedule A of the Common Terms Agreement shall be amended by replacing the reference to “three (3) years” in clause (A) thereof with “five (5) years”.
1.3 Clause (m) of the definition of “Material Project Agreements” set forth on Section 1.3 of Schedule A of the Common Terms Agreement shall be amended by replacing the reference to “(k)” with “(l)”.
1.4 Clause (n) of the definition of “Material Project Agreements” set forth on Section 1.3 of Schedule A of the Common Terms Agreement shall be amended by replacing the reference to “(l)” with “(m)”.
1.5 The definition of “Material Project Counterparties” set forth on Section 1.3 of Schedule A of the Common Terms Agreement shall be amended by deleting such definition in its entirety and replacing it with the following:
“Material Project Counterparties” means each of the Construction Contractors, the Initial LNG Buyers, Shell Oil Company, Galp Energia, SGPS, S.A., BP International Limited, Repsol Exploracion, S.A., Texas Eastern Transmission, LP, ANR Pipeline Company, Bridgeline Holdings, L.P., EnLink Midstream Operating, LP, Sabine Pipe Line LLC, Indigo Minerals LLC, Calcasieu Pass Operations, LLC, Venture Global Services, LLC, TransCameron Operations, LLC, Xxxxx Venture, LLC, JADP Venture, LLC, General Electric Company, XxXxxxxxx International, Inc., Honeywell International Inc., CP Marine Offloading, LLC and each other party (other than an Obligor) to a Material Project Agreement.
1.6 The definition of “Permitted Payments” set forth on Section 1.3 of Schedule A of the Common Terms Agreement shall be amended by replacing the reference to “Material Project Documents” in clause (a) thereof with “Material Project Agreements”.
1.7 The definition of “Subsequent Material Project Agreement” set forth on Section 1.3 of Schedule A of the Common Terms Agreement shall be amended by replacing the reference to “three (3) years” in clause (b) thereof with “five (5) years”.
Section 2. Effectiveness. This Second Amendment shall become effective as of the date hereof only upon delivery of executed counterparts of this Second Amendment by each of (a) the Borrower, (b) the Guarantor, (c) the Intercreditor Agent, (d) the Credit Facility Agent (who constitutes the Requisite Intercreditor Parties (as defined in the Intercreditor Agreement)) and (e) Lenders constituting the Required Lenders under the Credit Facility Agreement.
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Section 3. Representations and Warranties. Each of the Obligors hereby represents and warrants to the Lenders, Credit Facility Agent and Intercreditor Agent that:
3.1 upon the effectiveness of the consent and amendments set forth in Section 1, no Unmatured Loan Facility Event of Default or Loan Facility Event of Default has occurred and is Continuing or will result from the consummation of the transactions contemplated by this Second Amendment; and
3.2 upon the effectiveness of the consent and amendments set forth in Section 1, each of the representations and warranties of the Obligors in the Common Terms Agreement, the Credit Facility Agreement and the other Finance Documents is true and correct in all material respects except (A) for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects, on and as of the date hereof (or, if stated to have been made solely as of an earlier date, as of such earlier date) and (B) for the representations and warranties set forth in Section 5.1 (Initial Representations and Warranties of the Obligors) of the Common Terms Agreement, which are made only on the Closing Date.
Section 4. Finance Document. This Second Amendment constitutes a Finance Document as such term is defined in, and for purposes of, the Common Terms Agreement. Each of the parties hereto agree that each reference to “Common Terms Agreement” in each Finance Document, including the Intercreditor Agreement and Credit Facility Agreement, shall refer to the Common Terms Agreement as amended by the First Amendment and as amended hereby.
Section 5. Governing Law. THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
Section 6. Headings. All headings in this Second Amendment are included only for convenience and ease of reference and shall not be considered in the construction and interpretation of any provision hereof.
Section 7. Binding Nature and Benefit; Amendment. This Second Amendment shall be binding upon and inure to the benefit of each party hereto and their respective successors and permitted assigns. This Second Amendment may not be amended or modified except pursuant to a written instrument signed by all parties hereto.
Section 8. Counterparts. This Second Amendment may be executed in multiple counterparts, each of which shall be deemed an original for all purposes, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Second Amendment by facsimile or portable document format (“pdf”) shall be effective as delivery of a manually executed counterpart of this Second Amendment.
Section 9. No Modifications; No Other Matters. Except as expressly provided for herein, the terms and conditions of the Common Terms Agreement, the Credit Facility Agreement and the other Finance Documents shall continue unchanged and shall remain in full force and effect. This Second Amendment shall apply solely in the specific instances and for the specific purposes expressly set forth herein and shall not be deemed or construed as a waiver of any other matters or to prejudice any rights which any of the Secured Parties may now have or may have in the future under or in connection with the Finance Documents or any of the instruments or documents referred to therein, nor shall this Second Amendment apply to any other matters.
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Section 10. E-Signature. The words “execution,” “signed,” “signature,” and words of like import in this Second Amendment shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any legal requirements, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 11. Direction to Credit Facility Agent and Intercreditor Agent.
11.1 By their signature below, each of the undersigned Credit Facility Lenders instructs the Credit Facility Agent to (i) execute this Second Amendment and (ii) direct the Intercreditor Agent to execute this Second Amendment; and
11.2 Based on the instructions above, the Credit Facility Agent, constituting the Requisite Intercreditor Parties (as defined in the Intercreditor Agreement), hereby directs the Intercreditor Agent to execute this Second Amendment.
[Remainder of the page left intentionally blank.]
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IN WITNESS WHEREOF, the Parties have caused this Second Amendment to be duly executed by their officers thereunto duly authorized as of the day and year first above written.
| VENTURE GLOBAL CALCASIEU PASS, LLC, as the Borrower | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Secretary | ||
| TRANSCAMERON PIPELINE, LLC, as the Guarantor | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Secretary | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| NATIXIS, NEW YORK BRANCH, as Credit Facility Agent | ||
| By: | /s/ Xxxx Xxxx | |
| Name: | Xxxx Xxxx | |
| Title: | Director | |
| By: | /s/ Xxxxxxxx Xxxxxx | |
| Name: | Xxxxxxxx Xxxxxx | |
| Title: | Vice President | |
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| MIZUHO BANK, LTD., as Intercreditor Agent | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Managing Director | |
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| BASISGV/PX (Investments) Ltd., as Lender | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: | Xxxxxx Xxxxxxx | |
| Title: | Director | |
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| Bank Gospodarstwa Krajowego, as Lender | ||
| By: | /s/ Xxxxxx Xxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxx | |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxxx | |
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| BANK OF AMERICA, N.A., as Lender | ||
| By: | /s/ Xxxxxx X. XxXxxx | |
| Name: Xxxxxx X. XxXxxx | ||
| Title: Managing Director | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| CaixaBank, as Lender | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: Director/PoA | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: Director/PoA | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| CIT Bank, N.A., as Lender | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Managing Director | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| LANDESBANK HESSEN-THÜRINGE GIROZENTRALE, NEW YORK BRANCH, as Lender | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: Xxxxx X. Xxxxx | ||
| Title: Senior Vice President | ||
| Credit Risk Management Corporate Finance New York | ||
| By: | /s/ Xxx Xxxxxx | |
| Name: Xxx Xxxxxx | ||
| Title: Vice President | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| FirstBank Puerto Rico d/b/a FirstBank Florida, as Lender | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: Xxxx X. Xxxxxx | ||
| Title: SVP, Corporate Banking | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| Xxxxxxx Xxxxx Bank USA, as Lender | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: Authorized Signatory | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| ING Capital LLC, as Lender | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxx | ||
| Title: Managing Director | ||
| By: | /s/ Xxxxxxx X’Xxxxx | |
| Name: Xxxxxxx X’Xxxxx | ||
| Title: Vice President | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| JPMORGAN CHASE BANK N.A., as Lender | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx Xxxxxxxx | ||
| Title: Executive Director | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| LANDESBANK BADEN-WÜRTTEMBERG, NEW YORK BRANCH, as Lender | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx | ||
| Title: Head of Americas Region | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | ||
| Title: Legal Counsel | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| BANCO DE SABADELL, S.A., MIAMI BRANCH, as Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx | ||
| Title: Head of Structured Finance Americas | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| Banco Santander, S.A., New York Branch, as Lender | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | ||
| Title: Managing Director | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | ||
| Title: Managing Director | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| Sumitomo Mitsui Banking Corporation, as Lender | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Managing Director | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| Wori America Bank, as Lender | ||
| By: | /s/ Xxxxx Xxx Xxxx | |
| Name: Xxxxx Xxx Song | ||
| Title: SVP | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| MIZUHO BANK, LTD., as Lender | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx Xxxxxxxx | ||
| Title: Managing Director | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| NATIXIS, NEW YORK BRANCH, as Lender | ||
| By: | /s/ Xxxx Xxx | |
| Name: Xxxx Xxx | ||
| Title: Executive Director | ||
| By: | /s/ Xxxxx Xxxx | |
| Name: Xxxxx Xxxx | ||
| Title: Managing Director | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| NOMURA CORPORATE FUNDING AMERICAS, LLC, as Lender | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Managing Director | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| ROYAL BANK OF CANADA, as Lender | ||
| By: | /s/ Xxxxx X. York | |
| Name: Xxxxx X. York | ||
| Title: Authorized Signatory | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| NATWEST PENSION TRUSTEE LIMITED AS TRUSTEE FOR NATWEST GROUP PENSION FUND (AA SECTION), as Lender | ||
| By: | /s/ Xxxx Xxxx | |
| Name: Xxxx Xxxx | ||
| Title: Attorney | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| Title: Attorney | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| NATWEST PENSION TRUSTEE LIMITED AS TRUSTEE FOR NATWEST GROUP PENSION FUND (MAIN FUND SECTION), as Lender | ||
| By: | /s/ Xxxx Xxxx | |
| Name: Xxxx Xxxx | ||
| Title: Attorney | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| Title: Attorney | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| WOORI GLOBAL INFRASTRUCTURE SYNERGY-UP FUND, as Lender | ||
| By: | /s/ Xxxxx Won Xxxx | |
| Name: Xxxxx Won Xxxx | ||
| Title: Manager | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| Xxxxxx Xxxxxxx Senior Funding, Inc., as Lender | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Vice President | ||
SIGNATURE PAGE TO SECOND AMENDMENT
| Acknowledged and agreed as of the first date set forth above. | ||
| KFW IPEX-BANK GMBH, as Lender | ||
| By: | /s/ Xxxxx | |
| Name: Xxxxx | ||
| Title: Director | ||
| By: | /s/ Xxxxx | |
| Name: Xxxxx | ||
| Title: Assistant Vice President | ||
SIGNATURE PAGE TO SECOND AMENDMENT
