Fourth Amendment to the Amended and Restated Common Terms Agreement, dated as of November 26, 2019, by and among CCH, CCL, CCP and
EX-10.63 5 exhibit1063cei2020form10k.htm EX-10.63 Document
Exhibit 10.63
FOURTH AMENDMENT TO
COMMON TERMS AGREEMENT
This Fourth Amendment, dated as of November 26, 2019 (the “Fourth Amendment”), amends the Amended and Restated Common Terms Agreement, dated as of May 22, 2018 (as amended by the First Amendment, dated as of November 28, 2018, the Second Amendment, dated as of August 30, 2019, the Third Amendment, dated as of November 8, 2019, and as further amended, amended and restated, modified or supplemented from time to time, the “Common Terms Agreement”), by and among Cheniere Corpus Christi Holdings, LLC (the “Borrower”), Corpus Christi Liquefaction, LLC, Cheniere Corpus Christi Pipeline, L.P. and Corpus Christi Pipeline GP, LLC (the “Guarantors” and, together with the Borrower, the “Loan Parties”), Société Générale as the Term Loan Facility Agent, The Bank of Nova Scotia as the Working Capital Facility Agent, each other Facility Agent on behalf of its respective Facility Lenders, and Société Générale as the Intercreditor Agent. All capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Common Terms Agreement.
WHEREAS, certain of the Lenders have requested an amendment to the Common Terms Agreement to acknowledge any supported QFCs pursuant to recently enacted U.S. “QFC Stay Rules”, 12 C.F.R. §§ 252.81 et seq. (Federal Reserve), pt. 47 (OCC), pt. 382 (FDIC), and consequently the Loan Parties wish to enter into this Fourth Amendment to the Common Terms Agreement in order to make such amendment; and
WHEREAS, the Intercreditor Agent is executing this amendment pursuant to Section 3.2(a)(i) (Voting Generally: Intercreditor Party Decisions and Intercreditor Votes), Section 4.4 (Administrative Decisions) and Schedule 2 (Administrative Decisions) of the Intercreditor Agreement in order to add requisite QFC Stay provisions as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and subject to the terms and conditions herein set forth, the parties hereto agree as follows:
Section 1. Amendments to Common Terms Agreement. The Borrower, the Guarantors and the Intercreditor Agent each agree that a new Section 23.24 is hereby added to the Common Terms Agreement as follows:
“23.24 Acknowledgment Regarding Any Supported QFCs
To the extent that the Finance Documents provide support, through a guarantee or otherwise, for Hedging Instruments or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd- Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Finance Documents and any Supported QFC may in fact be stated
to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a)In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b)As used in this Section 23.24 (Acknowledgement Regarding Any Supported QFCs), the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
(i)a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b);
(ii)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or
(iii)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).”
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Section 2. Effectiveness. This Fourth Amendment shall be effective upon (x) the receipt by the Intercreditor Agent of executed counterparts of this Fourth Amendment by the Borrower and each Guarantor and (y) the execution of this Fourth Amendment by the Intercreditor Agent.
Section 3. Finance Document. This Fourth Amendment constitutes a Finance Document as such term is defined in, and for purposes of, the Common Terms Agreement.
Section 4. GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
Section 5. Headings. All headings in this Fourth 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 6. Binding Nature and Benefit. This Fourth Amendment shall be binding upon and inure to the benefit of each party hereto and their respective successors and permitted transfers and assigns.
Section 7. Counterparts. This Fourth 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 Fourth Amendment by facsimile or in electronic document format (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Fourth Amendment.
Section 8. No Modifications; No Other Matters. Except as expressly provided for herein, the terms and conditions of the Common Terms Agreement shall continue unchanged and shall remain in full force and effect. Each amendment granted herein shall apply solely to the matters set forth herein and such amendment shall not be deemed or construed as an amendment of any other matters, nor shall such amendment apply to any other matters.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to the Common Terms Agreement to be duly executed and delivered as of the day and year first above written.
| CHENIERE CORPUS CHRISTI | ||||||||
HOLDINGS, LLC, as the Borrower | ||||||||
| By: | /s/ Lisa C. Cohen | |||||||
| Name: Lisa C. Cohen | ||||||||
| Title: Treasurer | ||||||||
| CORPUS CHRISTI LIQUEFACTION, | ||||||||
LLC, as Guarantor | ||||||||
| By: | /s/ Lisa C. Cohen | |||||||
| Name: Lisa C. Cohen | ||||||||
| Title: Treasurer | ||||||||
| CHENIERE CORPUS CHRISTI | ||||||||
PIPELINE, L.P., as Guarantor | ||||||||
| By: | /s/ Lisa C. Cohen | |||||||
| Name: Lisa C. Cohen | ||||||||
| Title: Treasurer | ||||||||
| CORPUS CHRISTI PIPELINE GP, LLC, | ||||||||
| as Guarantor | ||||||||
| By: | /s/ Lisa C. Cohen | |||||||
| Name: Lisa C. Cohen | ||||||||
| Title: Treasurer | ||||||||
SIGNATURE PAGE TO FOURTH AMENDMENT TO COMMON TERMS AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to the Common Terms Agreement to be duly executed and delivered as of the day and year first above written.
SOCIÉTÉ GÉNÉRALE, | ||||||||
| as Intercreditor Agent on behalf of itself, | ||||||||
| each Facility Agent | ||||||||
| By: | /s/ Ellen Turkel | |||||||
| Name: Ellen Turkel | ||||||||
| Title: Director | ||||||||
SIGNATURE PAGE TO FOURTH AMENDMENT TO COMMON TERMS AGREEMENT
