SECOND OMNIBUS AMENDMENT AND WAIVER

EX-10.73 8 d322346dex1073.htm EX-10.73 EX-10.73

Exhibit 10.73

Execution Version

SECOND OMNIBUS AMENDMENT AND WAIVER

This Second Omnibus Amendment and Waiver (this “Amendment”), dated as of January 20, 2017 amends (a) the Second Amended and Restated Common Terms Agreement, dated as of June 30, 2015 (as it may be further amended, restated, supplemented or otherwise modified from time to time, the “Common Terms Agreement”), by and among Sabine Pass Liquefaction, LLC, a Delaware limited liability company (the “Borrower”), Société Générale as the Secured Debt Holder Group Representative for the Commercial Banks Facility, as the Common Security Trustee (in such capacity, the “Common Security Trustee”) and as the Intercreditor Agent (in such capacity, the “Intercreditor Agent”), Shinhan Bank New York Branch, as the Secured Debt Holder Group Representative for the KEXIM Direct Facility and the KEXIM Covered Facility, The Korea Development Bank New York Branch, as the Secured Debt Holder Group Representative for the KSURE Covered Facility, The Bank of Nova Scotia, as the Secured Debt Holder Group Representative for the Working Capital Debt and other Secured Debt Holder Group Representatives party thereto from time to time, the Secured Hedge Representatives and the Secured Gas Hedge Representatives party thereto from time to time, and (b) the Second Amended and Restated Accounts Agreement, dated as of June 30, 2015 (as it may be further amended, restated, supplemented or otherwise modified from time to time, the “Accounts Agreement,” and together with the Common Terms Agreement, the “Amended Agreements”), among the Borrower, the Common Security Trustee and Compass Bank, D.B.A. BBVA Compass as Accounts Bank (in such capacity, the “Accounts Bank”). All capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Common Terms Agreement and, if not defined therein, the Accounts Agreement.

WHEREAS, the Borrower has requested that the Common Security Trustee and Intercreditor Agent consent to the Administrative Decisions (as defined in the Intercreditor Agreement) with respect to the Common Terms Agreement as set forth in Section 1 herein;

WHEREAS, the Borrower has requested that the Common Security Trustee, Intercreditor Agent and Accounts Bank consent to the Administrative Decisions with respect to the Accounts Agreement as set forth in Section 2 herein;

WHEREAS, the Borrower has requested that the Secured Debt Holder Group Representatives for the Commercial Banks Facility, the KEXIM Direct Facility, the KEXIM Covered Facility, the KSURE Covered Facility and the Working Capital Debt, the Common Security Trustee, the Intercreditor Agent, the Accounts Bank (with respect to the Accounts Agreement only) and each of the Facility Lenders and the Working Capital Lenders (collectively, the “Lenders” and each individually, a “Lender”) agree to amend the Common Terms Agreement and Accounts Agreement as set forth in Section 3 herein; and

WHEREAS, (A) the Common Security Trustee and Intercreditor Agent are willing to consent to the Administrative Decisions with respect to the Common Terms Agreement as set forth in Section 1 herein, (B) the Common Security Trustee, Intercreditor Agent and Accounts Bank are willing to consent to the Administrative Decisions with respect to the Accounts Agreement as set forth in Section 2 herein, and (C) the Secured Debt Holder Group Representatives for the Commercial Banks Facility, the KEXIM Direct Facility, the KEXIM Covered Facility, the KSURE Covered Facility and the Working Capital Debt, the Common Security Trustee, the Intercreditor Agent and each Lender party hereto are willing to amend the Common Terms Agreement as set forth in Section 3 herein.

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. Amendments to Common Terms Agreement that are Administrative Decisions. Pursuant to Section 10.1 of the Common Terms Agreement and Section 4.3 of the Intercreditor Agreement, the Borrower, the Common Security Trustee and the Intercreditor Agent hereby consent to the following Administrative Decisions:

1.1 Exhibit A to the Common Terms Agreement (Knowledge) is hereby replaced in its entirety with the modified Exhibit A to the Common Terms Agreement found in Annex A hereto.

1.2 The reference to “Schedule 5.4” in the definition of “Project Completion” in Schedule 1 to the Common Terms Agreement is hereby updated to refer to “Schedule 5.5”.

1.3 The reference to “Schedule 5.4” in the definition of “Specified Completion Conditions” in Schedule 1 to the Common Terms Agreement is hereby updated to refer to “Schedule 5.5”.

Section 2. Amendments to Accounts Agreement that are Administrative Decisions. Pursuant to Section 7.01 of the Accounts Agreement and Section 4.3 of the Intercreditor Agreement, the Borrower, the Common Security Trustee, the Intercreditor Agent and the Accounts Bank hereby consent to the following Administrative Decisions:

2.1 Section 4.03(a) of the Accounts Agreement is hereby amended by replacing the parenthetical “(or with respect to only the Withdrawal/Transfer Certificates delivered to the Accounts Bank on the Closing Date, on the Business Day of)” as follows:

“(or with respect to only the Withdrawal/Transfer Certificates delivered to the Accounts Bank (x) on the Closing Date and (y) requesting that amounts on deposit in the Equity Proceeds Account be transferred and deposited into the Construction Account in accordance with Section 5.01(c)(i) (Withdrawals from Equity Proceeds Account), in either case, on the Business Day of; provided that Withdrawal/Transfer Certificates received after 12:00 p.m. New York City time will be deemed received the next Business Day)”.

2.2 Section 5.09(a)(i) of the Accounts Agreement shall be amended and restated as follows:

“(i) proceeds of Replacement Debt that will be used to repay the Indebtedness being refinanced pursuant to Sections 2.6(b)(ii) and (iii) (Replacement Debt) of the Common Terms Agreement, other than any proceeds of such Replacement Debt that will be paid directly to the Secured Debt Holder

Group Representatives for purposes of satisfying the requirements of Sections 2.6(j) (Replacement Debt) and 3.4(a)(iii) (Mandatory Prepayment of Secured Debt) of the Common Terms Agreement”.

Section 3. Section 3. Other Amendments and Waivers to the Financing Documents

3.1 Pursuant to Section 10.1 of the Common Terms Agreement and Section 4.1(i) of the Intercreditor Agreement, the Borrower, the Secured Debt Holder Group Representatives for the Commercial Banks Facility, the KEXIM Direct Facility, the KEXIM Covered Facility, the KSURE Covered Facility and the Working Capital Debt, the Common Security Trustee, the Intercreditor Agent, and each Lender agrees that Section 8.2(f) of the Common Terms Agreement is hereby amended and restated as follows:

“(f) notice of the occurrence of any force majeure event in respect of the Project, the Sabine Pass Terminal or the pipelines owned by Cheniere Creole Trail Pipeline, L.P. reasonably expected to exceed ten (10) consecutive days (together with a description of its expected duration and any action being taken or proposed to be taken with respect thereto)”.

3.2 Pursuant to Section 7.01 of the Accounts Agreement and Section 4.1(i) of the Intercreditor Agreement, the Borrower, the Secured Debt Holder Group Representatives for the Commercial Banks Facility, the KEXIM Direct Facility, the KEXIM Covered Facility, the KSURE Covered Facility and the Working Capital Debt, the Common Security Trustee, the Intercreditor Agent, and each Lender agrees that Section 5.02(b) of the Accounts Agreement is hereby amended to replace the words “to pay Project Costs then due and owing in accordance with the Construction Budget and the Construction Schedule…” with “to (i) pay Project Costs then due and owing in accordance with the Construction Budget and the Construction Schedule and (ii) pay for gas purchases for any trains of the Project that have achieved Date of First Commercial Delivery, in the case of this clause (ii), using proceeds transferred from the Equity Proceeds Account to the Construction Account…”.

3.3 The undersigned Secured Parties constituting the Required Secured Parties and the Majority Aggregate Secured Credit Facilities Debt Participants (as defined in the Intercreditor Agreement) hereby waive any prior non-compliance by the Borrower in connection with the Common Terms Agreement or the other Financing Documents arising out of Borrower paying for gas purchases for any train that has achieved Date of First Commercial Delivery using Cash Flows of the Borrower transferred from the Equity Proceeds Account to the Construction Account.

Section 4. Effectiveness. This Amendment shall become effective as of the date hereof only upon the execution of this Amendment by the Common Security Trustee and receipt by the Common Security Trustee of executed counterparts of this Amendment by each of the Borrower, the Intercreditor Agent, the Secured Debt Holder Group Representatives for the Commercial Banks Facility, the KEXIM Direct Facility, the KEXIM Covered Facility, the KSURE Covered Facility and the Working Capital Debt, and the Required Secured Parties constituting the Majority Aggregate Secured Credit Facilities Debt Participants (as defined in the Intercreditor Agreement).

Section 5. Representations and Warranties. The Borrower hereby represents and warrants to the Lenders that:

5.1 no Default or Event of Default has occurred and is continuing as of the date hereof or will result from the consummation of the transactions contemplated by the Amendment; and

5.2 each of the representations and warranties of the Borrower in the Common Terms Agreement and the other Financing Documents is true and correct in all material respects except for (A) 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) the representations and warranties that, pursuant to Section 4.1(b) (General) of the Common Terms Agreement, are not deemed repeated.

Section 6. Financing Document. This Amendment constitutes a Financing Document as such term is defined in, and for purposes of, the Common Terms Agreement.

Section 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT ANY REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

Section 8. Headings. All headings in this 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 9. Binding Nature and Benefit. This Amendment shall be binding upon and inure to the benefit of each party hereto and their respective successors and permitted assigns.

Section 10. Counterparts. This 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 Amendment by facsimile or portable document format (“pdf”) shall be effective as delivery of a manually executed counterpart of this Amendment.

Section 11. No Modifications; No Other Matters. Except as expressly provided for herein, the terms and conditions of the Common Terms Agreement and the Accounts 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.

Section 12. Direction to Secured Credit Facilities Debt Holder Group Representatives, Intercreditor Agent and Common Security Trustee. With respect to Section 3 of this Amendment only:

with respect to the Term Loan A Credit Agreement, by their signature below, each of the undersigned Commercial Bank Lenders instructs the Commercial Banks Facility Agent to (i) execute this Amendment and (ii) direct the Intercreditor Agent to execute this Amendment;

with respect to the KEXIM Direct Facility, by its signature below, KEXIM instructs the KEXIM Facility Agent to (i) execute this Amendment and (ii) direct the Intercreditor Agent to execute this Amendment;

with respect to the KEXIM Covered Facility, by its signature below, in accordance with Section 9.13 of the KEXIM Covered Facility Agreement, KEXIM instructs the KEXIM Facility Agent, on behalf of all KEXIM Covered Facility Lenders, to (i) execute this Amendment and (ii) direct the Intercreditor Agent to execute this Amendment;

with respect to the KSURE Covered Facility, in accordance with Section 9.13 of the KSURE Covered Facility Agreement, KSURE instructs the KSURE Covered Facility Agent, on behalf of all KSURE Covered Facility Lenders, to (i) execute this Amendment and (ii) direct the Intercreditor Agent to execute this Amendment;

with respect to the Working Capital Facility, by their signature below, each of the undersigned Working Capital Facility Lenders instructs the Working Capital Facility Agent to (i) execute this Amendment and (ii) direct the Intercreditor Agent to execute this Amendment;

based on the instructions above, each of the Commercial Banks Facility Agent, the KSURE Covered Facility Agent, the KEXIM Facility Agent and the Working Capital Facility Agent, constituting the Majority Aggregate Secured Credit Facilities Debt Participants (as defined in the Intercreditor Agreement), hereby directs the Intercreditor Agent to (i) execute this Amendment and (ii) direct the Common Security Trustee to execute this Amendment; and

by its signature below, the Intercreditor Agent, in such capacity, hereby directs the Common Security Trustee to execute this Amendment.

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IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed by their officers thereunto duly authorized as of the day and year first above written.


SABINE PASS LIQUEFACTION, LLC, as the Borrower

By:		/s/ Lisa C. Cohen
Name:		Lisa C. Cohen
Title:		Treasurer