Exhibit 10.2
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT dated as of June 15, 2023 (this “Amendment”), to that certain SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of October 28, 2021, by and among CHENIERE ENERGY, INC., a corporation formed under the laws of the State of Delaware (“Borrower”), the Lenders and Issuing Banks party thereto from time to time, SUMITOMO MITSUI BANKING CORPORATION, as ESG Coordinator (“ESG Coordinator”), and SOCIÉTÉ GÉNÉRALE, as Administrative Agent (together with its permitted successors in such capacity, “Administrative Agent”), with SOCIÉTÉ GÉNÉRALE, BANK OF AMERICA, N.A., THE BANK OF NOVA SCOTIA, HOUSTON BRANCH, CITIBANK, N.A., CREDIT SUISSE AG, NEW YORK BRANCH, GOLDMAN SACHS BANK USA, ING CAPITAL LLC, JPMORGAN CHASE BANK, N.A., MIZUHO BANK, LTD., MORGAN STANLEY SENIOR FUNDING, INC., MUFG BANK, LTD., ROYAL BANK OF CANADA, HSBC BANK USA, NATIONAL ASSOCIATION, BANCO SANTANDER, S.A., NEW YORK BRANCH, BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, TRUIST SECURITIES, INC., WELLS FARGO BANK, NATIONAL ASSOCIATION, CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, INTESA SANPAOLO S.P.A., NEW YORK BRANCH, SUMITOMO MITSUI BANKING CORPORATION, NATIXIS, NEW YORK BRANCH, and STANDARD CHARTERED BANK, NEW YORK as Joint Lead Arrangers (collectively in such capacity, the “Arrangers”) and each other entity that is a party thereto (as amended, restated, amended and restated, supplemented or otherwise modified and in effect prior to the date hereof, the “Existing Agreement”).
RECITALS:
WHEREAS, certain loans or other extensions of credit under the Existing Agreement bear or are permitted to bear interest, or incur or are permitted to incur fees, commissions or other amounts, based on the Adjusted LIBO Rate in accordance with the terms of the Existing Agreement;
WHEREAS, the Borrower, the Lenders and the Issuing Banks desire to amend the Existing Agreement to (i) replace the Adjusted LIBO Rate with Adjusted Term SOFR as a benchmark rate for purposes of the Existing Agreement as set forth herein and (ii) make certain other amendments to the Existing Agreement as provided herein;
WHEREAS, the parties hereto hereby acknowledge and agree that the Lenders and Issuing Banks party hereto constitute all the Lenders and Issuing Banks.
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1



Article I.Amendments.
(a)Notwithstanding anything to the contrary contained in the Existing Agreement or in any other Financing Document, the Existing Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages attached hereto as Exhibit A. A copy of the Existing Agreement is attached hereto as Exhibit A, and is marked, as described in the preceding sentence, to show the additions and deletions made to the Existing Agreement on the Effective Date pursuant to this Amendment.
(b)Exhibits B-1 and B-2 attached hereto shall be deemed to replace Exhibits D-1 and D-2, respectively, to the Existing Agreement.
(c)Exhibit C attached hereto shall be deemed to replace Exhibit E to the Existing Agreement.
Article II.Definitions; Rules of Construction; Notice.
(a)Capitalized terms used and not defined herein shall have the meanings assigned to such terms in Exhibit A attached hereto. For purposes of this Amendment and the provisions contained herein “Amended Agreement” means the Existing Agreement, as amended pursuant to this Amendment.
(b)This Amendment is a “Financing Document” as defined in the Existing Agreement.
(c)Section 1.3 of the Existing Agreement shall apply to this Amendment mutatis mutandis.    
Article III.Conditions to Effectiveness. This Amendment shall become effective on the date (the “Effective Date”) that the following conditions precedent have been satisfied:

(a)Amendment. The Administrative Agent has received this Amendment executed and delivered by (i) a duly authorized officer of the Borrower, (ii) each Lender and (iii) each Issuing Bank.
(b)Representations and Warranties. The representations and warranties made pursuant to Article IV of this Amendment shall be true and complete on and as of such date with the same force and effect as if made on and as of such date.
Notwithstanding anything in this Amendment or the Amended Agreement to the contrary, all interest, fees, commissions and other amounts determined with reference to the Adjusted LIBO Rate (as defined in the Existing Agreement) in accordance with the terms of the Existing Agreement shall continue to be determined with reference to the Adjusted LIBO Rate in accordance with the terms of the Existing Agreement until June 30, 2023 or, with respect to any LIBO Rate Loans (as defined in the Existing Agreement) outstanding on such date, the end of the then-current Interest Period (as defined in the Existing Agreement) applicable thereto.
2



Article IV.Representations and Warranties. In order to induce the Administrative Agent to enter into this Amendment, the Borrower hereby represents and warrants to the Administrative Agent on and as of the Effective Date that:
(a)(i) it has all corporate or other organizational power and authority to execute, deliver and perform its obligations under this Amendment and the Existing Agreement and (ii) this Amendment has been duly authorized, executed and delivered by it; and
(b)this Amendment and the Existing Agreement constitute legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity and principles of good faith and fair dealing.
Article V.Reaffirmation. The Borrower hereby (a) acknowledges its receipt of a copy of this Amendment and its review of the terms and conditions hereof and consents to the terms and conditions of this Amendment and the transactions contemplated hereby and (b) agrees that each Financing Document to which it is a party shall continue to be in full force and effect.
Article VI.Expenses. The Borrower hereby agrees to pay all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent in connection with the negotiation, preparation, execution, and delivery of this Amendment and each other document contemplated hereby (including, without limitation, the reasonable and documented fees and expenses of counsel).
Article VII.Miscellaneous.
Section7.01Survival. Except as expressly provided in this Amendment, all of the terms, provisions, covenants, agreements, representations and warranties and conditions of the Existing Agreement and the other Financing Documents shall be and remain in full force and effect as written, unmodified hereby and are hereby ratified by the Borrower. In the event of any conflict between the terms, provisions, covenants, representations and warranties and conditions of this Amendment, on the one hand, and the Existing Agreement or any other applicable Financing Document, on the other hand, this Amendment shall control.
Section7.02Severability. Any term or provision of this Amendment that is invalid, illegal or unenforceable in any jurisdiction shall, solely as to that jurisdiction, be ineffective solely to the extent of such invalidity, illegality or unenforceability without rendering invalid, illegal or unenforceable the remaining terms and provisions of this Amendment or affecting the validity, legality or enforceability of any of the terms or provisions of this Amendment in any other jurisdiction. If any provision of this Amendment is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
Section7.03Governing Law. This Amendment and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Amendment and the transactions contemplated hereby shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws provisions (other than sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York).
Section7.04Entire Agreement. This Amendment, the Existing Agreement (as amended hereby) and the other applicable Financing Documents constitute the entire agreement among the parties to the Existing Agreement and such other applicable Financing Document with
3



respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and verbal, among such parties or any of them with respect to the subject matter hereof. Any exhibits or annexes attached hereto are hereby incorporated herein by reference and made a part hereof.
Section7.05Binding Effect, Beneficiaries. This Amendment shall be binding upon and inure to the benefit of the parties to the Existing Agreement and each other applicable Financing Document and their respective heirs, executors, administrators, successors, legal representatives and assigns, and no other party shall derive any rights or benefits herefrom.
Section7.06Construction. This Amendment shall be construed without regard to any presumption or other rule requiring construction against the party drafting this Amendment.
Section7.07Notices. All notices relating to this Amendment shall be delivered in the manner and subject to the provisions set forth in the Existing Agreement.
Section7.08Counterparts; Effectiveness; Electronic Execution. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single agreement. Except as provided in Article III, this Amendment shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or in electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” and words of like import in this 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 applicable law, 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.
Section7.09Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.
Section7.010Reference to and Effect on the Existing Agreement and the Other Financing Documents. On and after the Effective Date, each reference in any Financing Document to the Existing Agreement and the use therein of “thereunder,” “thereof” or words of like import referring to the Existing Agreement shall, in each case, mean and be a reference to the Existing Agreement as amended by this Amendment. Except as specifically amended by this Amendment, the Existing Agreement and the other Financing Documents shall remain in full force and effect (with the same priority, as applicable) and are hereby ratified and confirmed and this Amendment shall not be considered a novation. The execution, delivery and performance of this Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of the Administrative Agent or any other party under, the Amended Agreement, any of the other Financing Documents or otherwise.

[Signature Pages Follow]
4



IN WITNESS WHEREOF, each party hereto has caused this Amendment to be duly executed by its respective authorized officer or authorized officers as of the day and year first above written.
CHENIERE ENERGY, INC.,
as Borrower
By:/s/ Joshua Silverman
Name:Joshua Silverman
Title:Assistant Treasurer

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



SOCIÉTÉ GÉNÉRALE,
as Administrative Agent
By:/s/ Kevin Soucy
Name:Kevin Soucy
Title:Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



SUMITOMO MITSUI BANKING CORPORATION,
as ESG Coordinator
By:/s/ Jeffery A Cobb
Name:Jeffery A Cobb
Title:Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



SOCIÉTÉ GÉNÉRALE,
as Joint Lead Arranger and Lender
By:/s/ Karla Navas
Name:Karla Navas
Title:Vice President

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



BANCO BILBAO VIZCAYA ARENTARIA, S.A. NEW YORK BRANCH,
as Joint Lead Arranger and Issuing Bank
By:/s/ Cara Younger
Name:Cara Younger
Title:Managing Director
By:/s/ Armen Semizian
Name:Armen Semizian
Title:Executive Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



BANCO SANTANDER, S.A. NEW YORK BRANCH,
as Joint Lead Arranger and Lender
By:/s/ Andres Barbosa
Name:Andres Barbosa
Title:Managing Director
By:/s/ Rita Walz-Cuccioli
Name:Rita Walz-Cuccioli
Title:Executive Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



BANK OF AMERICA, N.A.,
as Joint Lead Arranger and Lender
By:/s/ Christopher Baethge
Name:Christopher Baethge
Title:Vice President

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



THE BANK OF NOVA SCOTIA, HOUSTON BRANCH,
as Joint Lead Arranger, Issuing Bank, and Lender
By:/s/ Joe Lattanzi
Name:Joe Lattanzi
Title:Managing Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH,
as Joint Lead Arranger, Issuing Bank, and Lender
By:/s/ Peter O'Neill
Name:Peter O'Neill
Title:Managing Director
By:/s/ Anh Nguyen
Name:Anh Nguyen
Title:Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



CITIBANK, N.A.,
as Joint Lead Arranger, Issuing Bank, and Lender
By:/s/ Gabriel Juarez
Name:Gabriel Juarez
Title:Vice President

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as Joint Lead Arranger and Lender
By:/s/ Michael Willis
Name:Michael Willis
Title:Managing Director
By:/s/ Page Dillehunt
Name:Page Dillehunt
Title:Managing Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



CREDIT SUISSE AG, NEW YORK BRANCH,
as Joint Lead Arranger and Lender
By:/s/ Komal Shah
Name:Komal Shah
Title:Authorized Signatory
By:/s/ Michael Wagner
Name:Michael Wagner
Title:Authorized Signatory

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



GOLDMAN SACHS BANK USA,
as Joint Lead Arranger and Lender
By:/s/ Andrew Vernon
Name:Andrew Vernon
Title:Authorized Signatory

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



HSBC BANK USA, NATIONAL ASSOCIATION,
as Joint Lead Arranger and Lender
By:/s/ Balaji Rajgopal
Name:Balaji Rajgopal
Title:Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



ING CAPITAL LLC,
as Joint Lead Arranger and Lender
By:/s/ Subha Pasumarti
Name:Subha Pasumarti
Title:Managing Director
By:/s/ Anthony Rivera
Name:Anthony Rivera
Title:Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



INTESA SANPAOLO S.P.A., NEW YORK BRANCH,
as Joint Lead Arranger and Lender
By:/s/ Nicholas A. Matacchieri
Name:Nicholas A. Matacchieri
Title:Managing Director
By:/s/ Lisa Cintron
Name:Lisa Cintron
Title:Business Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arranger and Lender
By:/s/ Cristina Caviness
Name:Cristina Caviness
Title:Executive Director
.
Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



MIZUHO BANK, LTD,
as Joint Lead Arranger and Lender
By:/s/ Edward Sacks
Name:Edward Sacks
Title:Executive Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



MORGAN STANLEY SENIOR FUNDING, INC.,
as Joint Lead Arranger and Lender
By:/s/ Taylor Tripucka
Name:Taylor Tripucka
Title:Vice President

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



MUFG BANK, LTD.,
as Joint Lead Arranger and Lender
By:/s/ Saad Iqbal
Name:Saad Iqbal
Title:Manging Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



ROYAL BANK OF CANADA,
as Joint Lead Arranger and Lender
By:/s/ Don J. McKinnerney
Name:Don J. McKinnerney
Title:Authorized Signatory

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



NATIXIS NEW YORK BRANCH,
as Joint Lead Arranger, Issuing Bank, and Lender
By:/s/ Anthony Perna
Name:Anthony Perna
Title:Director
By:/s/ Scott Dunlop
Name:Scott Dunlop
Title:Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



STANDARD CHARTERED BANK NEW YORK,
as Joint Lead Arranger and Lender
By:/s/ Kristopher Tracy
Name:Kristopher Tracy
Title:Director, Financing Solutions

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



SUMITOMO MITSUI BANKING CORPORATION,
as Joint Lead Arranger, Issuing Bank, and Lender
By:/s/ Jeffrey A Cobb
Name:Jeffrey A Cobb
Title:Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



TRUIST SECURITIES, INC,
as Joint Lead Arranger
By:/s/ Ben Brown
Name:Ben Brown
Title:Director
TRUIST BANK,
as Lender
By:/s/ Ben Brown
Name:Ben Brown
Title:Director

Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement



WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Joint Lead Arranger, Issuing Bank, and Lender
By:/s/ Borden Tennant
Name:Borden Tennant
Title:Director
Signature Page to First Amendment to 2nd A&R Revolving Credit Agreement


EXHIBIT A

[See Attached]




Annex A to First Amendment to
Second Amended and Restated
Revolving Credit Agreement

SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

dated as of October 28, 2021, among

CHENIERE ENERGY, INC.,
as Borrower,

VARIOUS LENDERS AND ISSUING BANKS,

SOCIÉTÉ GÉNÉRALE,
BANK OF AMERICA, N.A.,
THE BANK OF NOVA SCOTIA, HOUSTON BRANCH,
CITIBANK, N.A.,
CREDIT SUISSE AG, NEW YORK BRANCH,
GOLDMAN SACHS BANK USA,
ING CAPITAL LLC,
JPMORGAN CHASE BANK, N.A.,
MIZUHO BANK, LTD.,
MORGAN STANLEY SENIOR FUNDING, INC.,
MUFG BANK, LTD.,
ROYAL BANK OF CANADA,
HSBC BANK USA, NATIONAL ASSOCIATION,
BANCO SANTANDER, S.A., NEW YORK BRANCH,
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH,
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
TRUIST SECURITIES, INC.,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH,
INTESA SANPAOLO S.P.A., NEW YORK BRANCH,
SUMITOMO MITSUI BANKING CORPORATION,
NATIXIS, NEW YORK BRANCH, and
STANDARD CHARTERED BANK, NEW YORK,
as Joint Lead Arrangers,

SUMITOMO MITSUI BANKING CORPORATION,
as ESG Coordinator

and

SOCIÉTÉ GÉNÉRALE,
as Administrative Agent





______________________________________________________

Revolving Credit Facility
_______________________________________________________



TABLE OF CONTENTS
Page
SECTION 1.DEFINITIONS AND INTERPRETATION3
1.1Definitions.3
1.2Accounting Terms.
4947
1.3Interpretation, Etc.
4947
1.4Letter of Credit Amounts.
5048
1.5Timing of Payment or Performance.
5048
1.6Negative Covenant Compliance and Other Calculations.
5048
1.7Certifications.
5048
1.8Rounding.
5048
1.9Divisions
5048
1.10Sustainability Adjustments.
5149
1.11Benchmark Exculpation50
SECTION 2.LOANS AND LETTERS OF CREDIT
5251
2.1Loans.
5251
2.2Letters of Credit.
5452
2.3Pro Rata Shares; Availability of Funds.
6663
2.4Use of Proceeds.
6764
2.5Evidence of Debt; Register; Lenders’ Books and Records; Notes.
6764
2.6Interest on Loans.
6865
2.7Conversion/Continuation.
7067
2.8Default Interest.
7068
2.9Fees.
7168
2.10Voluntary Prepayments/Commitment Reductions.
7168
2.11Mandatory Prepayments.
7269
2.12Application of Prepayments.
7370
2.13General Provisions Regarding Payments.
7471
2.14Ratable Sharing.
7673
2.15
Making or Maintaining LIBO RateTerm SOFR Loans.
7773
2.16Increased Costs; Capital Adequacy.
7975
2.17Taxes; Withholding, Etc.
8177
2.18Obligation To Mitigate.
8481
2.19Defaulting Lenders.
8581
2.20Removal or Replacement of a Lender.
8682
2.21Increased Commitments.
8884
2.22Currency Matters.
8985
2.23Acknowledgement and Consent to Bail-In of Affected Financial Institutions.
8985
2.24
LIBO RateBenchmark Replacement Setting.
8985
2.25Amend and Extend.
9187
i





2.26Acknowledgement Regarding Any Supported QFCs.
9389
SECTION 3.CONDITIONS PRECEDENT
9490
3.1Closing Date.
9490
3.2Conditions to Each Credit Extension.
9792
3.3Notices.
9893
SECTION 4.REPRESENTATIONS AND WARRANTIES
9893
4.1Organization; Requisite Power and Authority; Qualification.
9893
4.2Equity Interests and Ownership.
9894
4.3Due Authorization.
9994
4.4No Conflict.
9994
4.5Government Approvals.
9995
4.6Binding Obligation.
9995
4.7Financial Statements.
10095
4.8No Material Adverse Effect.
10095
4.9Adverse Proceedings.
10095
4.10Payment of Taxes.
10095
4.11Properties.
10096
4.12Intellectual Property
10196
4.13Environmental Matters.
10196
4.14No Defaults.
10196
4.15Investment Company Act of 1940.
10196
4.16Federal Reserve Regulations; Exchange Act.
10197
4.17Employee Matters.
10297
4.18Employee Benefit Plans.
10297
4.19Certain Fees.
10398
4.20Solvency.
10398
4.21Compliance with Statutes, Etc.
10398
4.22Disclosure.
10398
4.23Sanctions; Anti-Corruption Laws; PATRIOT Act.
10399
4.24Security Documents.
10499
4.25Insurance.
105100
4.26Nature of Business.
105100
4.27Ranking.
105100
4.28Indebtedness; Investments
105100
4.29Affected Financial Institutions
105100
SECTION 5.AFFIRMATIVE COVENANTS
105100
5.1Financial Statements and Other Reports.
105100
5.2Existence.
108103
5.3Payment of Taxes.
108103
ii





5.4Maintenance of Properties.
108103
5.5Insurance.
108103
5.6Books and Records; Inspections.
109103
5.7Compliance with Laws.
109104
5.8Environmental.
110104
5.9Subsidiaries.
111105
5.10[Reserved].
111106
5.11Further Assurances.
111106
5.12Use of Proceeds.
111106
5.13Post-Closing.
111106
SECTION 6.NEGATIVE COVENANTS
112106
6.1Indebtedness.
112106
6.2Liens.
114108
6.3No Further Negative Pledge.
116111
6.4Investments.
117111
6.5Financial Covenant.
117112
6.6Fundamental Changes.
117112
6.7Transactions with Affiliates.
118112
6.8Conduct of Business.
119113
6.9Speculative Transactions.
119113
6.10Restricted Payments.
119113
6.11Margin Regulations.
120114
SECTION 7.EVENTS OF DEFAULT
120114
7.1Events of Default.
120114
SECTION 8.AGENTS
123117
8.1Appointment of Agent.
123117
8.2Powers and Duties.
124118
8.3General Immunity.
124118
8.4Agents Entitled to Act as Lender.
126120
8.5Lenders’ Representations, Warranties and Acknowledgment.
126120
8.6Right to Indemnity.
127121
8.7Successor Administrative Agent.
127121
8.8Security Documents.
128122
8.9Withholding Taxes.
130123
8.10Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim.
130124
8.11Intercreditor Agreement
131125
8.12Erroneous Payments.
131125
8.13Certain ERISA Matters
135128
iii





SECTION 9.MISCELLANEOUS.
136130
9.1Notices.
136130
9.2Expenses.
138131
9.3Indemnity.
139132
9.4Set Off.
141135
9.5Amendments and Waivers.
142135
9.6Successors and Assigns; Participations.
146138
9.7Independence of Covenants.
150143
9.8Survival of Representations, Warranties and Agreements.
151143
9.9No Waiver; Remedies Cumulative.
151144
9.10Marshalling; Payments Set Aside.
151144
9.11Severability.
152144
9.12Obligations Several; Independent Nature of Lenders’ Rights.
152144
9.13Headings.
152145
9.14APPLICABLE LAW
152145
9.15CONSENT TO JURISDICTION
153145
9.16WAIVER OF JURY TRIAL.
153146
9.17Confidentiality.
154146
9.18Usury Savings Clause.
155148
9.19Effectiveness; Counterparts.
156148
9.20Entire Agreement.
156148
9.21PATRIOT Act.
156149
9.22Release of Liens.
157149
9.23No Fiduciary Duty.
158150
9.24Authorization of Filing of Financing Statements.
159152
9.25Electronic Execution of Documents.
160152
9.26Amendment and Restatement.
160152
9.27Affirmation of Security Documents
160152
iv





APPENDICES:ACommitments
BNotice Addresses
SCHEDULES:
I
II
III
Eligible Expenditures
Fronting Limits
Knowledge Parties
4.1Jurisdictions of Organization
4.2Equity Interests and Ownership
4.11Real Estate Assets
6.1Existing Indebtedness
6.2Existing Liens
6.3Certain Negative Pledges
EXHIBITS:
A
B
C
D-1
D-2
Assignment Agreement
Closing Date Certificate
Compliance Certificate
Conversion/Continuation Notice
Funding Notice
D-3
E
Issuance Notice
Eligible Expenditure Certificate
F
G
H
Intercompany Note
Milestone Certificate
Note
IIncumbency Certificate
JRestricted Payment Certificate







SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of October 28, 2021, is entered into by and among CHENIERE ENERGY, INC., a corporation formed under the laws of the State of Delaware (“Borrower”), the Lenders and Issuing Banks party hereto from time to time, SUMITOMO MITSUI BANKING CORPORATION, as ESG Coordinator (“ESG Coordinator”), and SOCIÉTÉ GÉNÉRALE, as Administrative Agent (together with its permitted successors in such capacity, “Administrative Agent”), with SOCIÉTÉ GÉNÉRALE, BANK OF AMERICA, N.A., THE BANK OF NOVA SCOTIA, HOUSTON BRANCH, CITIBANK, N.A., CREDIT SUISSE AG, NEW YORK BRANCH, GOLDMAN SACHS BANK USA, ING CAPITAL LLC, JPMORGAN CHASE BANK, N.A., MIZUHO BANK, LTD., MORGAN STANLEY SENIOR FUNDING, INC., MUFG BANK, LTD., ROYAL BANK OF CANADA, HSBC BANK USA, NATIONAL ASSOCIATION, BANCO SANTANDER, S.A., NEW YORK BRANCH, BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, TRUIST SECURITIES, INC., WELLS FARGO BANK, NATIONAL ASSOCIATION, CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, INTESA SANPAOLO S.P.A., NEW YORK BRANCH, SUMITOMO MITSUI BANKING CORPORATION, NATIXIS, NEW YORK BRANCH, and STANDARD CHARTERED BANK, NEW YORK as Joint Lead Arrangers (collectively in such capacity, the “Arrangers”).
RECITALS:
WHEREAS, capitalized terms used and not defined in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 (Definitions) hereof;
WHEREAS, Borrower, the lenders and issuing banks party thereto (the “Existing Lenders”) and the Administrative Agent are party to an Amended and Restated Revolving Credit Agreement, dated as of December 13, 2018 (the “Existing Credit Agreement”);
WHEREAS, the Existing Lenders and each of the other parties hereto wish to and agree to amend and restate the Existing Credit Agreement on the terms and conditions set forth herein, and to continue to make loans and other extensions of credit to Borrower on the terms and conditions set forth herein;
WHEREAS, in connection with the amendment and restatement, the Lenders have agreed to extend to Borrower a credit facility consisting of $1,250,000,000 aggregate principal amount of revolving Commitments;
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WHEREAS, the proceeds of the Commitments will be used, subject to Section 2.4 (Use of Proceeds), for general corporate purposes of Borrower (including with respect to the issuance of Letters of Credit);
WHEREAS, Borrower desires to continue to secure all of its Obligations by the security interests and Liens heretofore granted to Collateral Agent, for the benefit of the Secured Parties, upon the Collateral pursuant to the Security Documents; and
WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities existing under the Existing Credit Agreement and the other Financing Documents or evidence payment of all such obligations and liabilities, and that this Agreement amends and restates the Existing Credit Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree that, effective on the Closing Date, the Existing Credit Agreement shall be and hereby is amended and restated in its entirety to read as follows:
SECTION 1.DEFINITIONS AND INTERPRETATION
1.1Definitions. The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
2023 Milestone Certificate” as defined in Section 1.10(b)(i) (Sustainability Adjustments).
Additional Commitment Lender” means (a) a Lender or (b) any other financial institution (subject to the prior written consent of Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed) that agrees to provide a Commitment or (in the case of a Lender) agrees to increase the amount of its Commitment pursuant to Section 2.21 (Increased Commitments).
Adjusted LIBO Rate” means, for any Interest Rate Determination Date with respect to an Interest Period for a LIBO Rate Loan, the rate per annum obtained by dividing (i) (a) the rate per annum equal to the rate determined by Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays an average London interbank offered rate administered by ICE Benchmark Administration Limited (or any other Person which takes over the administration of that rate) (such page currently being LIBOR01 page) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date (the “LIBO Screen Rate”), or (b) in the event the rate referenced in the preceding clause (a) does not appear on such page or service or if such page or service shall cease to be available, the Interpolated Rate; or (c) in the event the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum equal to the rate determined by Administrative Agent to be the offered rate on such other page or other service which displays an average London interbank offered rate administered by ICE Benchmark Administration
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Limited (or any other Person which takes over the administration of that rate) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (d) subject to Section 2.24, in the event the rates referenced in the preceding clauses (a), (b) and (c) are not available, the rate per annum equal to the offered quotation rate to first-class banks in the London interbank market by Administrative Agent for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in immediately available funds comparable to the principal amount of the applicable Loan of Administrative Agent, in its capacity as a Lender, for which the Adjusted LIBO Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, (the rate determined pursuant to the preceding clause (i), the “LIBO Rate”) by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement; provided that, notwithstanding the foregoing, the Adjusted LIBO Rate shall at no time be less than zero.
Adjusted Term SOFR” means, for any Interest Period, an interest rate per annum equal to the sum of:
(a)     Term SOFR for such Interest Period, plus
(b)     0.10% (10 basis points);
provided that if Adjusted Term SOFR as so determined would be less than the Floor, then Adjusted Term SOFR shall be deemed to be equal to the Floor for the purposes of this Agreement.
Administrative Agent” as defined in the preamble hereto.
Adverse Proceeding” means any action, suit, claim (including any Environmental Claims), proceeding, hearing (in each case, whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Borrower or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign, whether pending or, to the Knowledge of Borrower, threatened in writing against or affecting Borrower or any of its Subsidiaries or any property of Borrower or any of its Subsidiaries.
Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
Affected Lender” as defined in Section 2.15(b) (Illegality or Impracticability of LIBO RateTerm SOFR Loans).
Affected Loans” as defined in Section 2.15(b) (Illegality or Impracticability of LIBO RateTerm SOFR Loans).
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Affiliate” means, with respect to any Person, another Person that directly or indirectly Controls, or is under common Control with, or is Controlled by, such Person and, if such Person is an individual, any member of the immediate family (including parents, spouse, children and siblings) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is Controlled by any such member or trust. Notwithstanding the foregoing, (a) the definition of “Affiliate” shall not encompass any individual solely by reason of his or her being a director, officer, manager or employee of any Person and (b) no Agent or Lender shall be deemed to be an Affiliate of Borrower or any Subsidiary thereof solely as a result of its capacity as such.
Agent Affiliates” as defined in Section 9.1(b)(iii) (Electronic Communications).
Agent(s)” means each of (a) Administrative Agent, (b) Collateral Agent, (c) ESG Coordinator and (d) any other Person appointed under the Financing Documents to serve in an agent or similar capacity.
Aggregate Amounts Due” as defined in Section 2.14 (Ratable Sharing).
Aggregate Availability” means, as of any date of determination, the positive difference (if any) between (i) the aggregate amount of Commitments as of such date and (ii) the Total Utilization of Commitments as of such date.
Agreement” means this Second Amended and Restated Revolving Credit Agreement, dated as of October 28, 2021.
Anti-Corruption Laws” as defined in Section 4.23 (Sanctions; Anti-Corruption Laws; PATRIOT Act).
Anti-Terrorism and Money Laundering Laws” means any of the following: (a) Section 1 of Executive Order 13224 of September 24, 2001, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (Title 12, Part 595 of the US Code of Federal Regulations), (b) the Terrorism Sanctions Regulations (Title 31 Part 595 of the US Code of Federal Regulations), (c) the Terrorism List Governments Sanctions Regulations (Title 31 Part 596 of the US Code of Federal Regulations), (d) the Foreign Terrorist Organizations Sanctions Regulations (Title 31 Part 597 of the US Code of Federal Regulations), (e) the USA Patriot Act of 2001 (Pub. L. No. 107-56), (f) the U.S. Money Laundering Control Act of 1986, (g) the Bank Secrecy Act, 31 U.S.C. sections 5301 et seq., (h) Laundering of Monetary Instruments, 18 U.S.C. section 1956, (i) Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity, 18 U.S.C. section 1957, (j) the Financial Recordkeeping and Reporting of Currency and Foreign Transactions Regulations (Title 31 Part 103 of the US Code of Federal Regulations), (k) any other similar federal Government Rule having the force of law and relating to money laundering, terrorist acts or acts of war, and (l) any regulations promulgated under any of the foregoing.
Applicable Margin” means, for any day, (i) prior to the Closing Date, the “Applicable Margin” as defined in the Existing Credit Agreement and (ii) from and after the Closing Date,
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the applicable rate per annum set forth below based upon the ratings assigned by the Ratings Agencies on such date to the Loans; provided that, (x) from and after the occurrence of an Investment Grade Ratings Event, the applicable rate per annum shall be as set forth below minus 0.125% and (y) the Applicable Margin shall be increased or decreased in accordance with Section 1.10 (Sustainability Adjustments), as applicable:
Ratings
(S&P / Moody’s / Fitch)
Applicable
Margin (LIBO RateTerm SOFR Loans)
Applicable
Margin (Base
Rate Loans)
Category 1≥ BBB+ / Baa1 / BBB+1.250%0.250%
Category 2BBB / Baa2 / BBB1.375%0.375%
Category 3BBB- / Baa3 / BBB-1.625%0.625%
Category 4BB+ / Ba1 / BB+1.875%0.875%
Category 5BB / Ba2 / BB2.125%1.125%
Category 6≤ BB- / Ba3 / BB-2.375%1.375%

For purposes of the foregoing: (a) if only one Ratings Agency has assigned a rating to the Loans, the applicable Category shall be the Category that corresponds to that rating; (b) if more than one Ratings Agency has assigned a rating to the Loans, the applicable Category shall be the Category that corresponds to the highest assigned rating unless such ratings differ by two or more levels, in which case the applicable level will be deemed to be the one level below the higher of such levels; (c) if none of S&P, Moody’s or Fitch have assigned a rating, but another Ratings Agency has assigned a rating, the applicable Category shall be determined with reference to the equivalent rating provided by such other Ratings Agency; (d) if no Ratings Agency has assigned a rating to the Loans, the applicable Category shall be the Category that corresponds to the corporate family rating of Borrower and its Subsidiaries assigned by one or more Ratings Agencies, if available; (e) if no Ratings Agency has assigned a rating to the Loans or assigned a corporate family rating to Borrower and its Subsidiaries, the applicable Category shall be Category 6; and (f) if the ratings assigned by any Ratings Agency to the Loans (or, if applicable at such time, the corporate family rating) shall be changed (other than as a result of a change in the rating system of such Ratings Agency), such change shall be effective as of the date on which it is first announced by the applicable Ratings Agency, irrespective of when notice of such change shall have been furnished by Borrower to Administrative Agent and the Lenders. Each change in the applicable Category shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of any Ratings Agency shall change, Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system and, pending the effectiveness of any such amendment, the applicable Category shall be determined by reference to the rating of such Ratings Agency most recently in effect prior to such change.
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Applicable Reserve Requirement” means, at any time, for any LIBO Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (a) any category of liabilities which includes deposits by reference to which the applicable Adjusted LIBO Rate or any other interest rate of a Loan is to be determined, or (b) any category of extensions of credit or other assets which include LIBO Rate Loans. A LIBO Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on LIBO Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
Approved Electronic Communications” means any notice, demand, communication, information, document or other material that Borrower provides to Administrative Agent pursuant to any Financing Document or the transactions contemplated therein which is distributed to Agents, Lenders or Issuing Banks by means of electronic communications pursuant to Section 9.1(b) (Electronic Communications).
Arrangers” as defined in the preamble hereto.
Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit A, with such amendments or modifications as may be approved by Administrative Agent.
Assignment Effective Date” as defined in Section 9.6(b) (Register).
Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, senior vice president, vice president (or the equivalent thereof), chief financial officer, chief accounting officer, treasurer, assistant treasurer, secretary, assistant secretary or other named officer of such Person (or, in the case of a limited partnership, of the general partner, acting on behalf of such limited partnership); provided that, the secretary or assistant secretary of such Person shall have delivered an incumbency certificate to Administrative Agent as to the authority of such Authorized Officer.
Auto-Extension Letter of Credit” as defined in Section 2.2(c)(iii) (Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit).
Auto-Reinstatement Letter of Credit” as defined in Section 2.2(c)(iv) (Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit).
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Availability Period” means the period from the Closing Date to but excluding the Commitment Termination Date.
Available Eligible Expenditures” means an amount equal to 30% of the Incurred Eligible Expenditures during the relevant Measurement Period.
Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for any term rate or otherwise, or for determining any frequency of making payments of interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date (but not including any tenor for such Benchmark that is not then included in the definition of “Interest Period” pursuant to Section 2.24).
Bail-in Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
Bankruptcy Code” means Title 11 of the United States Code as now and hereafter in effect, or any successor statute.
Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus ½ of 11.00% and (iii) the sum of (x) the Adjusted LIBO RateTerm SOFR that would be payable on such day for a LIBO RateTerm SOFR Loan with a one-month interest period plus (y) 1.00%. Any change in the Base Rate due to a change in the Prime Rate or, the Federal Funds Effective Rate or the Adjusted Term SOFR shall be effective on the effective day of such change in the Prime Rate or, the Federal Funds Effective Rate or the Adjusted Term SOFR, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.24 (Benchmark Replacement Setting), then the Base Rate shall be the greater of (i) and (ii) above and shall be determined without regard to clause (iii) above.
Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base Rate. All Base Rate Loans shall be denominated in Dollars.
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Benchmark” means, initially, LIBOthe Term SOFR Reference Rate; provided that if a replacement of the Benchmark Transition Event has occurred pursuant to Section 2.24 (LIBO RateBenchmark Replacement Setting), then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
    Benchmark Replacement” means, for any Available Tenor:
(1)    For purposes of Section 2.24(a) (Replacing LIBO Rate), the first alternative set forth below that can be determined by Administrative Agent:
(a)    the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration, or
(b) the sum of: (i) Daily Simple SOFR and (ii) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of the tenor of LIBO Rate with a SOFR-based rate having approximately the same length as the interest payment period specified in Section 2.24(a) (Replacing LIBO Rate); and
(2) For purposes of Section 2.24(b) (Replacing Future Benchmarks)Benchmark Replacement” means, with respect to any Benchmark Transition Event, for any Available Tenor, the sum of: (ai) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent in consultation withand Borrower as the replacement for such Available Tenor of suchthe then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (x) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body and/or (y) any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. for determining a benchmark rate as a replacement for the then-current Benchmark for dollar-denominated syndicated credit facilities at such time in the United States and (ii) the related Benchmark Replacement Adjustment;
provided that, if the Benchmark Replacement as so determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Financing Documents.
Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation
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of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated syndicated credit facilities at such time in the United States.
Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent reasonably decides, with the consent of Borrower (such consent not to be unreasonably withheld, conditioned or delayed), may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides, with the consent of Borrower (such consent not to be unreasonably withheld, conditioned or delayed), is reasonably necessary in connection with the administration of this Agreement and the other Financing Documents).
Benchmark Replacement Date” means, with respect to any Benchmark, a date and time determined by the Administrative Agent and Borrower, which date shall be no later than the earliest to occur of the following events with respect to such then-current Benchmark:
(1)    in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2)    in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any
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Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1)     a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBO Rate, the occurrence of (2)     a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, thethe regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the (or the published component used in the calculation thereof), the Federal Reserve SystemBoard, the Federal Reserve Bank of New YorkNYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, (or such component thereof) permanently or indefinitely,; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.(or such component thereof); or
(3)     a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such
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component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Financing Document in accordance with Section 2.24 (Benchmark Replacement Setting), and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Financing Document in accordance with Section 2.24 (Benchmark Replacement Setting).
Board of Governors” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
Borrower” as defined in the preamble hereto.
Business Day” means (a) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (b) with respect to all notices, determinations, fundings and payments in connection with the Adjusted LIBO Rate or any LIBO Rate Loans, the term “Business Day” means any day which is a Business Day described in clause (a) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.
Business Day” means,
(a)    except to the extent provided in clause (b) below, any day (other than a Saturday or a Sunday) on which banks are open for business in New York City, and
(b)    in relation to Term SOFR Loans and any interest rate setting, funding, disbursement, settlement or payment of any Term SOFR Loan, any day that is a U.S. Government Securities Business Day.
Cash” means money, currency or a credit balance in any demand or Deposit Account.
Cash Collateralize” means to pledge and deposit (as a first-priority perfected security interest) with or deliver to Administrative Agent, for the benefit of Administrative Agent, the applicable Issuing Bank and the Lenders, as collateral for L/C Obligations, Cash or, if the applicable Issuing Bank benefitting from such collateral shall agree in its sole discretion, other credit support. “Cash Collateral” and “Cash Collateralization” shall have a meaning
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correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
Cash Equivalents” means, as at any date of determination, any of the following: (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within three months after such date; (b) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within three months after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s; (d) certificates of deposit, Dollar-denominated time deposits, overnight bank deposits or bankers’ acceptances maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $500,000,000; and (e) any money market mutual fund and floating net asset value money market fund that (i) complies with the criteria set forth in Securities and Exchange Commission Rule 2a-7 (or any successor rule) under the Investment Company Act of 1940; (ii) is rated either BBB+ by S&P and Baa1 by Moody’s or at least 95% of the assets of which constitute Cash Equivalents described in clauses (a) through (d) of this definition and/or Dollars; and (iii) has net assets of not less than $500,000,000.
CCH” means Cheniere Corpus Christi Holdings, LLC.
CCH Change of Control” means Borrower and its Affiliates together shall fail to control, directly or indirectly, more than 50% of the aggregate ordinary voting power of CCH.
CCH Project” means, collectively, the Corpus Christi Pipeline and the Corpus Christi Terminal Facility.
CE Tag” as defined in the definition of “ESG Milestones.”
CE Tag Program” as defined in the definition of “ESG Milestones.”
Change in Law” means (A) the issuance or enactment of any treaty, Government Rule or guideline, or any change therein or in the interpretation, administration or application thereof (regardless of whether the underlying treaty, Government Rule or guideline was issued or enacted prior to the date hereof), including the introduction of any new treaty, Government Rule or guideline but excluding solely proposals thereof, or any determination of a Governmental Authority, in each case that becomes effective after the date hereof, or (B) the issuance or making of any guideline, request or directive by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law) or any implementation rules or interpretations of previously issued guidelines, requests or directives, in each case that is issued
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or made after the date hereof; provided that, for all purposes of the Financing Documents, all requests, rules, guidelines or directives issued or promulgated by (i) any United States or foreign regulatory authority under or in connection with the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii) the Bank for International Settlements, the United States regulatory authorities or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) pursuant to Basel III, shall be deemed to be a “Change in Law” regardless of the date adopted, issued, promulgated or implemented.
Change of Control” means, the occurrence of any of the following:
(a)    any “person” or “group” (within the meaning of Section 13(d) of the Exchange Act), other than Borrower or its Subsidiaries, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect ultimate “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of Borrower’s Common Equity representing more than 50% of the voting power of Borrower’s Common Equity; or
(b)    consummation of (i) any recapitalization, reclassification or change of Borrower’s Common Equity (other than changes resulting from a subdivision or combination) pursuant to which Borrower’s Common Equity would be converted into, or exchanged for, or represent solely the right to receive, shares, stock or other securities of a Person other than Borrower, or other property or assets (including Cash or any combination thereof) or (ii) any share exchange, consolidation, merger or similar event involving Borrower pursuant to which Borrower’s Common Equity will be converted into, or exchanged for, or represent solely the right to receive, shares, stock or other securities of a Person other than Borrower, or other property or assets (including Cash or any combination thereof) (any such share exchange, consolidation, merger, similar event, transaction or series of transactions being referred to in this clause (b) as an “event”); provided that any such event described in clause (i) or (ii) above (A) where the Persons that “beneficially owned,” directly or indirectly, the voting shares of Borrower immediately prior to such event “beneficially own,” directly or indirectly, more than 50% of the total voting power of all outstanding classes of voting shares or stock of the continuing or surviving Person or transferee or the parent thereof immediately after such event and such holders’ proportional voting power immediately after such transaction vis-à-vis each other with respect to the securities they receive in such transaction will be in substantially the same proportions as their respective voting power vis-à-vis each other immediately prior to such transaction, or (B) effected solely to change Borrower’s jurisdiction of incorporation or to form a holding company for Borrower and that results in a share exchange or reclassification or similar exchange of the outstanding Common Equity solely into shares of common stock or other Common Equity interests of the surviving entity (excluding cash payments for fractional shares and cash payments made in respect of dissenters’ rights) will not constitute a Change of Control.
Notwithstanding the foregoing, a transaction or series of transactions described in clause (a) or clause (b) above (whether or not giving effect to the proviso in clause (b)) shall not constitute a Change of Control if at least 80% of the consideration received or to be received by
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holders of Borrower’s Common Equity (excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in connection with such transaction or transactions consists of common shares that are traded on NYSE MKT, The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors), or will be so traded immediately following such transaction. For the avoidance of doubt, a transaction or a series of transactions that is not considered a “Change of Control” pursuant to this paragraph shall not be a “Change of Control” solely because such event could also be described by clause (a) or clause (b) above.
Closing Date” means the date on which all the conditions set forth in Section 3.1 (Closing Date) have been satisfied (or waived in accordance with the terms of this Agreement).
Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit B.
CME Term SOFR Administrator” means CME Group Benchmark Administration Limited, as administrator of the forward-looking term Secured Overnight Financing Rate (or any successor administrator thereof).
Collateral” means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Security Documents as security for the Obligations.
Collateral Agency Appointment Agreement” means the Amended and Restated Collateral Agency Appointment Agreement, dated as of June 18, 2020, by and among Borrower, Administrative Agent, Collateral Agent and the other parties thereto from time to time.
Collateral Agent” means Société Générale or any successor to it appointed pursuant to the terms of the Collateral Agency Appointment Agreement.
Commitment” means the commitment of each Lender or Issuing Bank (in such capacity and its capacity as Lender) to make or otherwise fund Loans or to issue Letters of Credit, as applicable, hereunder, and “Commitments” means such commitments of all Lenders and Issuing Banks in the aggregate. The Dollar amount of each Lender’s and Issuing Bank’s Commitment is set forth in Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Commitments as of the Closing Date is $1,250,000,000.
Commitment Fee Rate” means, for any day, the applicable rate per annum set forth below based upon the ratings assigned by the Ratings Agencies on such date to the Loans; provided that, (x) from and after the occurrence of an Investment Grade Ratings Event, the applicable rate per annum shall be as set forth below minus 0.025% and (y) the Commitment Fee Rate shall be increased or decreased in accordance with Section 1.10 (Sustainability Adjustments), as applicable:
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Ratings
(S&P / Moody’s / Fitch)
Commitment Fee Rate
Category 1≥ BBB+ / Baa1 / BBB+0.15%
Category 2BBB / Baa2 / BBB0.20%
Category 3BBB- / Baa3 / BBB-0.25%
Category 4BB+ / Ba1 / BB+0.30%
Category 5BB / Ba2 / BB0.35%
Category 6≤ BB- / Ba3 / BB-0.40%

For purposes of the foregoing: (a) if only one Ratings Agency has assigned a rating to the Loans, the applicable Category shall be the Category that corresponds to that rating; (b) if more than one Ratings Agency has assigned a rating to the Loans, the applicable Category shall be the Category that corresponds to the highest assigned rating unless such ratings differ by two or more levels, in which case the applicable level will be deemed to be the one level below the higher of such levels; (c) if none of S&P, Moody’s or Fitch have assigned a rating, but another Ratings Agency has assigned a rating, the applicable Category shall be determined with reference to the equivalent rating provided by such other Ratings Agency; (d) if no Ratings Agency has assigned a rating to the Loans, the applicable Category shall be the Category that corresponds to the corporate family rating of Borrower and its Subsidiaries assigned by one or more Ratings Agencies, if available; (e) if no Ratings Agency has assigned a rating to the Loans or assigned a corporate family rating to Borrower and its Subsidiaries, the applicable Category shall be Category 6; and (f) if the ratings assigned by any Ratings Agency to the Loans (or, if applicable at such time, the corporate family rating) shall be changed (other than as a result of a change in the rating system of such Ratings Agency), such change shall be effective as of the date on which it is first announced by the applicable Ratings Agency, irrespective of when notice of such change shall have been furnished by Borrower to Administrative Agent and the Lenders. Each change in the applicable Category shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of any Ratings Agency shall change, Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system and, pending the effectiveness of any such amendment, the applicable Category shall be determined by reference to the rating of such Ratings Agency most recently in effect prior to such change.
Commitment Fees” as defined in Section 2.9(a) (Fees).
Commitment Increase” as defined in Section 2.21 (Increased Commitments).
Commitment Termination Date” means the earliest to occur of (i) the Final Maturity Date; (ii) the date the Commitments are permanently reduced to zero pursuant to Section 2.10(b)
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(Voluntary Commitment Reductions) or Section 2.11 (Mandatory Prepayments) and (iii) the date of the termination of the Commitments pursuant to Section 7.1 (Events of Default).
Common Equity” of any Person means the Equity Interests of such Person that are generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.
Completion Date” as defined in the definition of “Material Project EBITDA Adjustment”.
Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
Consolidated Net Tangible Assets” means, at any date, (a) total assets of Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP minus (b) the sum of (i) current liabilities (excluding short-term Indebtedness (which, for the avoidance of doubt, shall mean indebtedness maturing within 12 months of such applicable date) and the current portion of long-term Indebtedness) of Borrower and its Subsidiaries and (ii) goodwill and other intangible assets of Borrower and its Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP.
Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
Control” (including, with its correlative meanings, “Controlled by” and “under common Control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of Equity Interests, by contract or otherwise).
Control Agreements” means each control agreement executed and delivered by Collateral Agent for the benefit of the Secured Parties, a securities intermediary or depositary bank and Borrower pursuant to the terms of the Pledge and Security Agreement with such modifications as Collateral Agent may reasonably request or approve.
Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.
Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit D-1.
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Corpus Christi Pipeline” means the gas pipeline originating at the Corpus Christi Terminal Facility and terminating north of the City of Sinton, Texas, and related facilities.
Corpus Christi Terminal Facility” means the liquefaction facilities in San Patricio County and Nueces County in the vicinity of Portland, Texas, on the La Quinta Channel in the Corpus Christi Bay, comprising liquefaction trains, LNG storage tanks, and one or more marine berths and supporting facilities.
Corresponding Amount” as defined in Section 2.3(b) (Availability of Funds).
Corresponding Tenor” means, with respect to any Available Tenor, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
Covenant Testing Period” means a period (i) commencing on the last day of a Fiscal Quarter of Borrower during which a Covenant Trigger Event has occurred and is continuing on the last day of such Fiscal Quarter and (ii) continuing through and including the first day after such Covenant Trigger Event when no Covenant Trigger Event has occurred for at least thirty (30) consecutive days.
Covenant Trigger Event” means if at any time (a)(i) the aggregate outstanding principal amount of the Loans plus (ii) Unreimbursed Amounts exceeds (b) 35% of the aggregate amount of Commitments.
Covered Party” as defined in Section 2.26(a) (Acknowledgment Regarding Any Supported QFCs).
CQH” means Cheniere Energy Partners LP Holdings, LLC.
CQH Change of Control” means the occurrence of either of the following: (a) Borrower shall cease to, directly or indirectly, own and control legally and beneficially on a fully diluted basis more than 50% of the voting rights associated with ownership of all outstanding Equity Interests of all classes of Equity Interests of CQH or (b) Borrower shall cease to hold, directly or indirectly, and control legally and beneficially on a fully diluted basis at least 50% of the economic rights associated with ownership of all outstanding limited partnership interests of CQP held, directly or indirectly by Borrower, as of the Closing Date.
CQP” means Cheniere Energy Partners, L.P.
CQP Change of Control” means the occurrence of any of the following:
(a)    the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” of related persons (as such terms are used in Section 13(d) of the Exchange Act), other than an entity owned directly or indirectly by the partners of CQP in substantially the same proportion as their ownership interests in CQP prior to such transaction, becomes the beneficial owner (as such term
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is used in Section 13(d) of the Exchange Act, except that such person or group shall be deemed to have “beneficial ownership” of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of CQP or CQP GP (or their respective successors by merger, consolidation or purchase of all or substantially all of their respective assets);
(b)    the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of CQP and its Subsidiaries taken as a whole to any “person” (as such term is used in Section 13(d) of the Exchange Act); or
(c)    the adoption of a plan relating to the liquidation or dissolution of CQP or the removal of the general partner by the limited partners of CQP;
provided that a CQP Change of Control shall be deemed to exclude transactions where (i) on a pro forma basis, Borrower retains greater than 50% control of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of CQP GP, (ii) Borrower is the surviving entity as a result of a corporate re-organization and combination of CQP into Borrower, (iii) CQP is the surviving entity as a result of a corporate reorganization and combination of Borrower into CQP (including any such reorganization the result of which CQP ceases to be a limited partnership) where on a pro forma basis, the equityholders of Borrower and CQP (prior to such reorganization or combination) collectively retain greater than 50% control of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of (A) CQP GP if CQP is a limited partnership, (B) the managing member if CQP is a limited liability company or (C) CQP if CQP is a corporation or a member managed limited liability company and (iv) following the conversion of CQP into a corporation, on a pro forma basis, Borrower retains greater than 50% control of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of CQP.
CQP GP” means Cheniere Energy Partners GP, LLC.
CQP IDRs” means the Incentive Distribution Rights, as that term is defined in the CQP Partnership Agreement (as in effect on the Closing Date without giving effect to any amendment thereto).
CQP Minority Interest” means the sum of the amounts described below allocated and distributed (assuming 100% distribution), in accordance with the CQP Partnership Agreement, to the Partnership Interests (as that term is defined in the CQP Partnership Agreement), other than the Partnership Interests held, directly or indirectly, by Borrower and its Subsidiaries:
(a)    Net Income of CQP and its consolidated Subsidiaries for such period; plus
(b)    each of the following to the extent deducted in determining such Net Income for such period: (i) all depreciation and amortization (including amortization of intangible assets) for such period, (ii) any other non-cash charges or losses for such period (including any non-cash
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losses resulting from the impairment of long-lived assets, goodwill or intangible assets) and (iii) all transaction fees and expenses for acquisitions, investments, dispositions and equity or debt offerings; minus
(c)    each of the following: (i) all non-cash items of income or gain which were included in determining such Net Income for such period, including non-cash expenses associated with stock-based compensation, and (ii) any cash payments made during such period in respect of items described in clause (b)(ii) above subsequent to the Fiscal Quarter in which the relevant non-cash charges or losses were reflected as a charge in determining such Net Income.
CQP Partnership Agreement” means that certain Fourth Amended and Restated Agreement of Limited Partnership of CQP, dated as of February 14, 2017.
Credit Date” means the date of a Credit Extension.
Credit Extension” means the making of a Loan, the extending of Commitments pursuant to Section 2.25, or the issuing, amending or extending of a Letter of Credit.
Creole Trail Project” means the 94-mile pipeline that interconnects the SPL Project with a number of large interstate pipelines and that, as of the date hereof, is owned and operated by Cheniere Creole Trail Pipeline, L.P.
Cross-Acceleration Parties” means, collectively, SPL, CQP and CCH.
Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Administrative Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if Administrative Agent decides that any such convention is not administratively feasible for Administrative Agent, then Administrative Agent may establish another convention in its reasonable discretion.
Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or any other applicable jurisdictions from time to time in effect.
Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
Defaulting Lender” means, subject to Section 2.19(b) (Defaulting Lender Cure), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent, applicable Issuing Bank or any other
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Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified Borrower, Administrative Agent or the applicable Issuing Bank in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Administrative Agent, Borrower or the applicable Issuing Bank, to confirm in writing to Administrative Agent, or such Issuing Bank, and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent, the applicable Issuing Bank and Borrower), (d) Administrative Agent has received notification that such Lender has, or has a direct or indirect parent company that is (x) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors or (y) the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its direct or indirect parent company, or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment, or (e) has become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
Derivative Counterparties” as defined in Section 9.23 (No Fiduciary Duty).
Derivatives” as defined in Section 9.23 (No Fiduciary Duty).
Discharge of Obligations” means:
(a)    payment in full in cash of (i) the outstanding principal amount of Loans under this Agreement, (ii) Unreimbursed Amounts and (iii) interest accrued and owing at or prior to the time such amounts are paid (including interest and fees accruing (or which would, absent the commencement of any case or proceeding under any Debtor Relief Laws of Borrower, accrue) on or after the commencement of any case or proceeding under any Debtor Relief Laws of
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Borrower, whether or not such interest would be allowed in such case or proceeding), on all Indebtedness outstanding under this Agreement and the other Financing Documents;
(b)    the termination or expiration of all Commitments, if any, to extend credit (including the issuance of any Letter of Credit) that would constitute Obligations;
(c)    cancellation, termination or Cash Collateralization (including pursuant to a letter of credit issued by a financial institution for the benefit of each Issuing Bank satisfactory to such Issuing Bank in its sole discretion) at 103% of the aggregate maximum amount available to be drawn (in a manner reasonably satisfactory to Administrative Agent, and the applicable Issuing Bank and to the extent not already funded in such amount) under all Letters of Credit issued and outstanding under the Financing Documents; and
(d)    payment in full in cash of all other Obligations that are then due and payable or otherwise accrued and owing at or prior to the time such amounts are paid, including all obligations outstanding under this Agreement which constitute Obligations (in each case, other than contingent indemnification obligations with respect to which no claim is outstanding).
Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity Interests), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified Equity Interests), in whole or in part or (iii) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Final Maturity Date, except, in the case of clauses (i) and (ii), if as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior Discharge of Obligations.
Dollars” and the sign “$” mean the lawful money of the United States of America.
Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Requisite Lenders.
Early Opt-in Election” means the occurrence of:
(1)    a notification by Administrative Agent to (or the request by Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate
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(including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2)    the joint election by Administrative Agent and Borrower to trigger a fallback from LIBO Rate and the provision by Administrative Agent of written notice of such election to the Lenders.
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee” means any Person other than a natural Person that is (a) a Lender, an Issuing Bank, an Arranger, an Affiliate of any Lender or Arranger or Issuing Bank or a Related Fund (any two (2) or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), or (b) a commercial bank, insurance company or mutual fund; provided that no Defaulting Lender, Borrower or Affiliate of Borrower shall be an Eligible Assignee.
Eligible Expenditure” means any expenditure incurred by or on behalf of Borrower and/or any of its Subsidiaries in connection with, or related to, any of the categories set forth on Schedule I (Eligible Expenditures).
Eligible Expenditure Application Period” means the period commencing on the date on which an Eligible Expenditure Certificate (if any) is delivered by Borrower to Administrative Agent and the ESG Coordinator and ending on the earlier to occur of (x) the date on which an Eligible Expenditure Certificate (if any) is delivered with respect to a subsequent Measurement Period and (y) the date that is 120 days following the end of the Fiscal Year in which such Eligible Expenditure Certificate was delivered.
Eligible Expenditure Certificate” means a certificate substantially in the form of Exhibit E (Eligible Expenditure Certificate) executed by a Financial Officer of Borrower (x) attaching a list and amount of all Incurred Eligible Expenditures for the most recently ended Measurement Period and setting forth the calculation of Available Eligible Expenditures for the period covered thereby and computations in reasonable detail in respect thereof, (y) appending a certification by an External Review Provider that such External Review Provider has seen satisfactory evidence of the incurrence of the Incurred Eligible Expenditures described
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thereinsubstantially in the form of Exhibit 2 to Exhibit E (or such other form as may be reasonably acceptable to the ESG Coordinator), and (z) including a certification by the signatory thereto (in their official, and not individual, capacity) confirming that they are not aware of any material modifications that should be made to such computations in order for them to be presented in all material respects in conformity with the applicable standards for the computation thereof.
Emissions Offsets” means carbon offsets issued by the following registries: American Carbon Registry, Verra, Climate Action Reserve, Gold Standard and the United Nations Clean Development Mechanism.
Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is, or was within the six-year period immediately preceding the Closing Date, sponsored, maintained or contributed to by, or required to be contributed to by, Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates.
Environmental Claim” means any written notice of noncompliance or violation, investigation, claim, administrative, regulatory, or judicial action, suit, judgment, written demand with respect to or arising in connection with Borrower or any Subsidiary of Borrower, by any other Person alleging or asserting liability under any Environmental Law, including for investigatory costs, costs of response, removal, remediation or cleanup, governmental response costs, attorneys’ fees, damages to the environment, natural resources, fines, or penalties arising out of, based on or resulting from (a) the presence, use, or Release into the environment of any Hazardous Substances or (b) any fact, circumstance, condition, or occurrence forming the basis of any violation, or alleged violation, of or liability under any Environmental Laws or Government Approvals issued pursuant to Environmental Law.
Environmental Laws” means any applicable laws, statutes, regulations, rules, ordinances, orders, decrees, rulings, judgments, writs, decisions, injunctions, or binding directives of a Governmental Authority having jurisdiction over or imposing legal requirements on Borrower or any Subsidiary of Borrower concerning human health or safety as related to any Hazardous Substance, natural resources, plant and animal species or the use or Release into the environment of any Hazardous Substances, including the Clean Air Act (42 U.S.C. §7401 et seq.), the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980 (42 U.S.C.§9601 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.), the Safe Drinking Water Act (42 U.S.C. §300f et seq.), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 403), the Endangered Species Act (16 U.S.C. §1531 et seq.), the Bald and Golden Eagle Protection Act (16 U.S.C. §668 et seq.), the Migratory Bird Treaty Act (16 U.S.C. §703 et seq.), the National Environmental Policy Act (42 U.S.C. § 4321 et seq.), the National Historic Preservation Act (16 U.S.C. § 468-468d), the Emergency Planning and Community Right to Know Act (42 U.S.C. § 11001 et seq.), the Pollution Prevention Act (42 U.S.C. § 13101 et seq.), the Oil Pollution Act (42 U.S.C. 11001 et seq.), the Louisiana Solid Waste Management and Resource Recovery Law (La. R.S. 30:2151 et seq.), the Louisiana Hazardous Waste Control Law (La. R.S. 30:2171 et
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seq.), the Louisiana Inactive and Abandoned Hazardous Waste Site Law (La. R.S. 30:2221 et seq.), the Louisiana Hazardous Substance Remedial Act (La. R.S. 30:2271 et seq.), and the regulations promulgated pursuant to any of the foregoing and similar federal, state and local statutes, all as may be amended from time to time.
Equity Interests” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing (but excluding any debt security that is convertible into, or exchangeable for, any of the foregoing).
ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (c) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (a) above or any trade or business described in clause (b) above is a member.
ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for thirty (30) day notice to PBGC has been waived by regulation in effect on the date hereof under subclause .23, .27, .28 or .31 of such regulation); (b) the failure to meet the minimum funding standard of Sections 412 and 430 of the Internal Revenue Code and Sections 302 and 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code and Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two (2) or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might reasonably constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of liability on Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the withdrawal of Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of
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Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore, or the receipt by Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization, or is in insolvency pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (h) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, against Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (i) receipt from the IRS of notice of the failure of any Pension Plan of Borrower or any of its Subsidiaries (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any such Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (j) the imposition of a lien pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA.
Erroneous Payment” as defined in Section 8.12(a).
Erroneous Payment Deficiency Assignment” as defined in Section 8.12(d)(i).
Erroneous Payment Impacted Class” as defined in Section 8.12(d)(i).
Erroneous Payment Return Deficiency” as defined in Section 8.12(d)(i).
Erroneous Payment Subrogation Rights” as defined in Section 8.12(e).
ESG Coordinator” as defined in the preamble hereto.
ESG Milestones” means each of the following:
(a)    commencement by Borrower and/or any of its Subsidiaries of a program substantially consistent with the program Borrower announced on February 24, 2021 (the “CE Tag Program”) to issue to buyers of LNG cargos from the SPL Project and/or the CCH Project data showing the estimated greenhouse gas (“GHG”) emissions, shown as CO2e/tonne of LNG, from the wellhead to the cargo delivery point, calculated using Borrower’s proprietary lifecycle analysis model that has been developed using proprietary and publicly available data from value chain participants as well as operational data from the SPL Project and CCH Project (each data set, a “CE Tag”); provided, that the CE Tag Program will be deemed to have commenced for purposes of this provision only to the extent such cargo data has been so delivered as confirmed by Borrower;
(b)    entrance into one or more agreements by Borrower and/or any of its Subsidiaries that will result in the development of an emissions “quantification, monitoring, reporting and verification” (“QMRV”) program that includes the issuance of one or more QMRV report(s) by a third party (including universities) selected by Borrower and/or any of its Subsidiaries in respect of at least two (2) third-party natural gas midstream providers involved in gathering &
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boosting, processing and/or transporting quantities of natural gas, each as confirmed by Borrower (acting reasonably); and
(c)    installation of emissions monitoring equipment on at least five LNG vessels (as selected by Borrower) that have previously been, or are then being, chartered and/or sub-chartered by Borrower and/or a Subsidiary of Borrower (“Vessel Program”).
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Event of Default” means each of the conditions or events set forth in Section 7.1 (Events of Default).
Exchange Act” means the Securities Exchange Act of 1934.
Excluded Assets” means “Excluded Assets” as defined in the Pledge and Security Agreement.
Excluded Subsidiary” means “Excluded Subsidiary” as defined in the Pledge and Security Agreement.

Excluded Taxes means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by Borrower under Section 2.20 (Removal or Replacement of a Lender)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17 (Taxes; Withholding, Etc.), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(c) (Status of Lenders) and (d) any Taxes imposed under FATCA.

Existing Commitment” as defined in Section 2.25(a) (Amend and Extend).
Existing Credit Agreement” as defined in the recitals.
Existing Lenders” as defined in the recitals.
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Exiting Lenders” as defined in Section 2.13(i).
Extended Commitment” as defined in Section 2.25(a) (Amend and Extend).
Extending Lender” as defined in Section 2.25(b) (Amend and Extend).
Extension Amendment” as defined in Section 2.25(c) (Amend and Extend).
Extension Election” as defined in Section 2.25(b) (Amend and Extend).
Extension Request” as defined in Section 2.25(a) (Amend and Extend).
External Review Provider” means a nationally recognized accounting firm designated by Borrower and reasonably acceptable to the ESG Coordinator with expertise in providing audit services, and shall be deemed to include any firm from among the largest four (4) international accounting firms at the relevant time.
Fair Labor Standards Act” means the Fair Labor Standards Act of 1938.
FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreement between a non-U.S. jurisdiction and the United States of America with respect to the foregoing and any law, regulation or practice adopted pursuant to any such intergovernmental agreement.
FCA” as defined in Section 2.24(a) (LIBO Rate Replacement).
Federal Funds Effective Rate” means for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that, (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day; (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to Administrative Agent on such day on such transactions as determined by Administrative Agent and (c) notwithstanding the foregoing, the Federal Funds Effective Rate shall at no time be less than zero.
Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.
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Fee Letters” means (i) the amended and restated agency fee letter, dated as the Closing Date, between Administrative Agent, Collateral Agent and Borrower and (ii) the upfront fee letter, dated as of the Closing Date, between Administrative Agent and Borrower.
FERC” means the Federal Energy Regulatory Commission and any successor thereto.
Final Maturity Date” means the earlier of (a) the fifth (5th) anniversary of the Closing Date and (b) the date all Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.
Finance Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a finance lease on the balance sheet of that Person; provided that, notwithstanding any changes adopted or required to be adopted by Borrower after December 13, 2018 as a result of any actual or proposed update to accounting standards, including, in particular, Accounting Standards Update (ASU) 2016-02 Leases (Topic 842), any successor proposal, any implementation thereof, any oral or public deliberations by the Financial Accounting Standards Board regarding the foregoing, or any other change in GAAP that requires or would require the obligations of a Person in respect of an operating lease or a lease that would be treated as an operating lease on December 13, 2018 to be recharacterized as a Finance Lease, only leases that would be classified as capital leases under GAAP as in effect on December 13, 2018 (whether or not such leases were in effect) shall constitute Finance Leases for purposes of this definition.
Financial Officer” means the chief financial officer, vice president, finance and planning, treasurer, assistant treasurer, chief accounting officer or corporate controller of Borrower, if such person is an Authorized Officer.
Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of a Financial Officer that such financial statements fairly present, in all material respects, the consolidated or unconsolidated, as applicable, financial condition of Borrower as at the dates indicated and the results of its operations and its cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments.
Financing Document” means any of this Agreement, the Notes, if any, the Security Documents, the Intercreditor Agreement, any Issuer Documents, the Fee Letters, the Collateral Agency Appointment Agreement and all other documents, certificates, instruments or agreements executed and delivered by or on behalf of Borrower for the benefit of any Agent, any Issuing Bank or any Lender in connection herewith on or after the date hereof.
Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
Fiscal Year” means the fiscal year of Borrower ending on December 31st of each calendar year.
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Fitch” means Fitch Ratings, Inc., or any successor to the rating agency business thereof.
Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to Adjusted LIBO RateTerm SOFR. For the avoidance of doubt the initial Floor for Adjusted Term SOFR shall be zero.
Force Majeure Adjustment” means, during the continuance of a Force Majeure Period, an amount equal to (x) the actual amount of dividends, distributions and repayment of good-faith loans made in Cash or Cash Equivalents, directly or indirectly, to Borrower in connection with the SPL Project, the CCH Project, the Creole Trail Project, the Sabine Pass Project and any additional Material Project, as applicable, during the four (4) full Fiscal Quarters immediately preceding the Fiscal Quarter in which the applicable Force Majeure Event occurred minus (y) the actual amount of dividends, distributions and repayment of good-faith loans made in Cash or Cash Equivalents, directly or indirectly, to Borrower in connection with the SPL Project, the CCH Project, the Creole Trail Project, the Sabine Pass Project and any additional Material Project, as applicable, during the four (4) Fiscal Quarters for which the Force Majeure Adjustment is being claimed; provided, that the foregoing shall not result in a Force Majeure Adjustment that is a negative number; provided further that, during any Force Majeure Period, Borrower shall be entitled to a Force Majeure Adjustment with respect to only one of the following (a) and (b): (a) the CCH Project and any related facilities, on the one hand, or (b) the SPL Project, the Creole Trail Project and the Sabine Pass Project and any related facilities, on the other hand.
Force Majeure Election Notice” as defined in Section 5.1(j)(ii) (Notice of Force Majeure Event; Force Majeure Election).
Force Majeure Event” means the occurrence of any event of force majeure under any material contract with a third party (as determined by Borrower in good faith) in respect of the SPL Project, the CCH Project, the Creole Trail Project, the Sabine Pass Project or any additional Material Project, in each case, so long as such Force Majeure Event does not, individually or with other such events, constitute an event of default under any Indebtedness in the individual or aggregate principal amounts in excess of $250,000,000 of SPL, CCH, or Indebtedness incurred in connection with the Creole Trail Project, the Sabine Pass Project or such additional Material Project, as applicable.
Force Majeure Period” means, at the election of Borrower, the first full Fiscal Quarter ending after a Force Majeure Event and the three full Fiscal Quarters following such first full Fiscal Quarter; provided that (i) only one Force Majeure Period may be in effect at any point in time, (ii) no new Force Majeure Period may commence until at least two full Fiscal Quarters have elapsed following the end of a prior Force Majeure Period and (iii) no more than two Force Majeure Periods may be elected during the period beginning on the Closing Date and ending on the Final Maturity Date.
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Fronted Letter of Credit” means a Letter of Credit issued by an Issuing Bank with a Fronting Limit.
Fronting Fee” as defined in Section 2.2(i)(ii) (Letter of Credit Fees).
Fronting Limit” means, at any time, with respect to any Issuing Bank, the amount set forth opposite the name of such Issuing Bank in the column entitled “Fronting Limit” on Schedule II, or, in the case of any Lender that becomes an Issuing Bank hereunder pursuant to Section 2.2(m) (Resignation as Issuing Bank) or otherwise, such amount as set forth in the agreement evidencing the appointment of such Lender as an Issuing Bank
Funded Debt” means Indebtedness of Borrower (determined on an unconsolidated basis) of the type referred to in clauses (a), (b), (d) (but, with respect to clause (d), only with respect to Indebtedness referred to in clauses (a), (b), (e) and (f)), (e) and (f) of the definition of “Indebtedness”.
Funding Notice” means a notice substantially in the form of Exhibit D-2.
GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession.
Gas” means any hydrocarbon or mixture of hydrocarbons consisting predominantly of methane which is in a gaseous state.
GHG” as defined in the definition of “ESG Milestones.”
Government Approval” means (a) any authorization, consent, approval, license, lease, ruling, permit, tariff, rate, certification, waiver, exemption, filing, variance, order, judgment, or decree of, by, from or with, (b) any declaration of or with or (c) any registration by or with, any Governmental Authority.
Governmental Authority” means any foreign, federal, state, regional, tribal or local government or political subdivision thereof or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and having jurisdiction over the Person or matters in question.
Government Rule” means any statute, law, regulation, ordinance, rule, judgment, order, decree, directive, requirement of, or other governmental restriction or any similar binding form of decision of or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority, which is applicable to any Person, whether now or hereafter in effect.
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Hazardous Substances” means any hazardous substances, pollutants, contaminants, wastes, or materials (including petroleum (including crude oil or any fraction thereof), petroleum wastes, radioactive material, hazardous wastes, toxic substances, urea formaldehyde insulation, lead-based paint, radon gas, or asbestos or any materials containing asbestos) designated, regulated, or defined under or with respect to which any requirement or liability may be imposed pursuant to any Environmental Law.
Hedge Agreement” means any agreement evidencing an interest rate, swap, forward rate transaction, commodity swap, commodity option, commodity future, interest rate option, interest or commodity cap, interest or commodity collar transaction, currency swap agreement, currency future or option contract, or other similar agreement.
Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
Historical Financial Statements” means (a) the consolidated audited balance sheet of Borrower and its Subsidiaries as at the end of the Fiscal Year ending December 31, 2020 and the related consolidated statements of income, stockholders’ equity and cash flows of Borrower and its Subsidiaries for such Fiscal Year and (b) the consolidated unaudited balance sheet of Borrower and its Subsidiaries for the Fiscal Quarter ending June 30, 2021 and the related consolidated statements of income and cash flows of Borrower and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter.
Honor Date” as defined in Section 2.2(d)(i) (Drawings and Reimbursements).
IBA” as defined in Section 2.24(a) (LIBO Rate Replacement).
Increased Cost Lender” as defined in Section 2.20 (Removal or Replacement of a Lender).
Incurred Eligible Expenditure” means all Eligible Expenditures incurred during a Measurement Period as evidenced on the applicable Eligible Expenditure Certificate.
Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (x) current accounts payable incurred in the ordinary course of business, (y) obligations that Borrower has discretion to satisfy with equity of Borrower and (z) any earn-out, purchase price adjustment or similar obligations, except with respect to this clause (z) to the extent required to be reported as a liability on the balance sheet of such Person), (d) all direct or indirect guarantees by such Person of Indebtedness of others, (e) the capitalized portions of all Finance Lease obligations that appear on the balance sheet of
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such Person, (f) all reimbursement obligations of such Person as an account party in respect of payments under drawn letters of credit and letters of guaranty, (g) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (h) Disqualified Equity Interests, and (i) net obligations of such Person in respect of any exchange traded or over the counter derivative transaction, including under any Hedge Agreement, in each case, whether entered into for hedging or speculative purposes or otherwise, in each case, valued on any date at the net hedging termination value thereof.
Notwithstanding the above provisions, in no event shall the following constitute Indebtedness:
i.contingent obligations incurred in the ordinary course of business;
ii.in connection with the purchase by Borrower of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided that at the time of closing the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 60 days thereafter; or
iii.any obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage Taxes.
Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), actions, judgments, suits, costs (including the costs of any investigation, preparation, study, sampling, monitoring, maintenance, testing, abatement, cleanup, removal, remediation or other response action required pursuant to Environmental Law to remove, remediate, clean up or abate any Hazardous Substance), expenses and disbursements arising out of the foregoing (including the reasonable fees and disbursements of counsel for Indemnitees in connection with or as a result of any action, claim, litigation, proceeding, investigation or hearing commenced or threatened by any Person, whether or not brought by Borrower, its equity holders or creditors or an Indemnitee, against any Person, and whether or not any such Indemnitee shall be otherwise designated as a party or a potential party thereto, and without regard to the exclusive or contributory negligence of such Indemnitee, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect, special or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, including shareholders, partners, members or other equity holders of Borrower (or its Affiliates), in any manner relating to or arising out of (a) this Agreement or the other Financing Documents or Letters of Credit or the transactions contemplated hereby or thereby or any matter referred to herein and therein (including the Lenders’ agreement to make Credit Extensions or the use or intended use of the proceeds thereof, any amendments, waivers or
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consents with respect to any provision of this Agreement or any of the other Financing Documents or Letters of Credit, or any enforcement of any of the Financing Documents (including any sale of, collection from, or other realization upon any of the Collateral)); or (b) any liability arising under Environmental Law or with respect to the actual or alleged presence or Release of Hazardous Substances at any location, or exposure of any person to Hazardous Substances, including, but not limited to, any Environmental Claim, related to Borrower or any of its Subsidiaries, including with respect to any past or present activity, operation, land ownership or practice of Borrower or any of its Subsidiaries.
Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any Financing Document and (b) to the extent not otherwise described in (a), Other Taxes.
Indemnitee” as defined in Section 9.3(a) (Indemnity).
Information” as defined in Section 4.22 (Disclosure).
Initial Milestone Certificate” as defined in Section 1.10(b)(i) (Sustainability Adjustments).
Initial Milestone Long-Stop Date” as defined in Section 1.10(b)(ii) (Sustainability Adjustments).
Intellectual Property” means “Intellectual Property” as defined in the Pledge and Security Agreement.
Intercompany Note” means a promissory note substantially in the form of Exhibit F evidencing Indebtedness owed among Borrower and its Subsidiaries.
Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of June 18, 2020 (and amended on the Closing Date), by and among the Administrative Agent, Société Générale as Term Loan Administrative Agent, the Collateral and Intercreditor Agent (as defined therein) and each other First Lien Debt Representative (as defined therein) party thereto from time to time.
Interest Expense” means, for any period, total Cash interest expense (including that attributable to Finance Lease obligations) of Borrower (on an unconsolidated basis) for such period with respect to all outstanding Indebtedness of Borrower (including all commissions, discounts and other fees and charges owed by Borrower or such Subsidiary with respect to letters of credit and bankers’ acceptance financing).
Interest Payment Date” means with respect to (a) any Loan that is a Base Rate Loan, the last Business Day of each March, June, September and December of each year, commencing on the first such date to occur after the Closing Date; and (b) any Loan that is a LIBO RateTerm SOFR Loan, the last day of each Interest Period applicable to such Loan; provided that, in the case of each Interest Period of longer than three (3) months, “Interest Payment Date” shall also
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include each date that is three (3) months, or an integral multiple thereof, after the commencement of such Interest Period.
Interest Period” means, in connection with a LIBO Rate Loan, an interest period ofwith respect to any Term SOFR Loan, the period commencing on the date of borrowing such Term SOFR Loan and ending on the numerically corresponding day in the calendar month that is one (1), three (3) or six (6) months or, if agreed to by all relevant Lenders, twelve (12) months, as selected by Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires thereafter (in each case, subject to the availability for the Benchmark applicable to the relevant Loan or Commitment), as Borrower may elect; provided that,: (ai) if anany Interest Period would otherwise expireend on a day that is notother than a Business Day, such Interest Period shall expire onbe extended to the next succeeding Business Day unless no furthersuch next succeeding Business Day occurs in suchwould fall in the next calendar month, in which case such Interest Period shall expireend on the immediatelynext preceding Business Day;, (bii) any Interest Period that beginscommences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month at the end of such Interest Period) shall, subject to clause (c), of this definition, end on the last Business Day of athe last calendar month; of such Interest Period, (iii) no tenor that has been removed from this definition pursuant to Section 2.24 (Benchmark Replacement Setting) shall be available for specification in a Funding Notice or a Conversion/Continuation Notice, and (civ) no Interest Period shall extend beyond the Commitment Termination Date. For purposes hereof, the date of a borrowing of a Loan initially shall be the date on which such borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such borrowing.
Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.
Internal Revenue Code” means the U.S. Internal Revenue Code of 1986.
Interpolated Rate” means, in relation to the Adjusted LIBO Rate, the rate which results from interpolating on a linear basis between (a) the applicable Adjusted LIBO Rate for the longest period (for which that Adjusted LIBO Rate is available) which is less than the Interest Period of the applicable Loan; and (b) the applicable Adjusted LIBO Rate for the shortest period (for which that Adjusted LIBO Rate is available) which exceeds the Interest Period of the applicable Loan, each as of approximately 11:00 a.m. (London, England time) two (2) Business Days prior to the commencement of such Interest Period of that Loan.
Investment” means (a) any direct purchase or other acquisition by Borrower of, or of a beneficial interest in, any of the Equity Interests of any other Person; (b) any direct redemption, retirement, purchase or other acquisition for value, by Borrower from any Person, of any Equity Interests of such Person; (c) any direct loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contributions by Borrower to any other Person, including
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all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business; and (d) all investments consisting of any exchange traded or over the counter derivative transaction, whether entered into for hedging or speculative purposes or otherwise by Borrower. The amount of any Investment of the type described in clauses (a), (b) and (c) shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write ups, write downs or write offs with respect to such Investment, but after giving effect to any repayment of principal in the case of Investments in the form of loans and any return of capital or return on Investment in the case of equity Investments (whether as a distribution, dividend, redemption or sale).
Investment Grade Ratings Event” means the receipt by Borrower of either an issuer credit rating or senior unsecured rating of BBB-, or higher, from S&P or a corporate family rating, senior unsecured rating or long-term issuer rating of Baa3, or higher, from Moody’s.
IRS” means the U.S. Internal Revenue Service.
ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
Issuance Notice” means an Issuance Notice substantially in the form of Exhibit D-3.
Issuer Documents” means with respect to any Letter of Credit, any Issuance Notice, any Letter of Credit application required by the applicable Issuing Bank to be completed and any other document, agreement and instrument entered into by any Issuing Bank and Borrower or in favor of the Issuing Bank and relating to such Letter of Credit.
Issuing Bank” means, as of the Closing Date, The Bank of Nova Scotia, Houston Branch, Citibank, N.A., Wells Fargo Bank, National Association, Canadian Imperial Bank of Commerce, New York Branch, Sumitomo Mitsui Banking Corporation and Natixis, New York Branch (together with their permitted successors and assigns in such capacity) or any Person that becomes an Issuing Bank in accordance with the provisions hereof, including Section 2.2(m) (Resignation as Issuing Bank), Section 2.2(n) (Replacement of Issuing Bank), Section 9.6(c) (Right To Assign), as applicable, together with its permitted successors and assigns in such capacity; provided that such Person has agreed in writing to be an Issuing Bank. Notwithstanding anything herein to the contrary, at no point will any Issuing Bank be expected to issue a commercial letter of credit or direct pay Letters of Credit (i.e., Letters of Credit that at the time of issuance thereof Borrower expects will be drawn upon in the ordinary course). Any reference to “Issuing Bank” herein shall be to the applicable Issuing Bank, as appropriate.
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Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form.
Knowledge” means, with respect to Borrower, the actual knowledge of any Person holding any of the positions (or successor position to any such position) set forth in Schedule III; provided that each such Person shall be deemed to have knowledge of all events, conditions and circumstances described in any notice delivered to Borrower pursuant to the terms of this Agreement or any other Financing Document.
L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Obligations” means, as at any date of determination, the aggregate maximum amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts not refinanced by a Loan. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.4 (Letter of Credit Amounts). For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
L/C Sublimit” means (x) with respect to Letters of Credit that backstop equity contribution, equity support and other similar undertakings to support one or more Material Projects (other than acquisitions), 100% of the aggregate amount of Commitments under this Agreement, and (y) with respect to all other Letters of Credit, $250,000,000.
Lender” means each bank, financial institution or institutional lender listed on the signature pages hereto as a Lender, any other Person that becomes a party hereto pursuant to an Assignment Agreement and any Additional Commitment Lender.
Lender Payment Notice” as defined in Section 2.2(d)(ii) (Drawings and Reimbursements).
Letter of Credit” means any letter of credit issued hereunder pursuant to Section 2.2(a) (Letter of Credit Commitment) and shall be a standby letter of credit.
Letter of Credit Expiration Date” means the day that is five (5) Business Days prior to the Commitment Termination Date.
Letter of Credit Fee” as defined in Section 2.2(i) (Letter of Credit Fees).
Letter of Credit Issuance Commitment” means an Issuing Bank’s Commitment less any outstanding Loans made by such Issuing Bank, as the case may be.
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Leveraged Recapitalization” means a recapitalization of Borrower or any of its Subsidiaries, in one transaction or a series of related transactions, with the proceeds of long-term Indebtedness (as classified on the balance sheet of Borrower or such Subsidiary in accordance with GAAP) that total, in the aggregate, greater than $500,000,000.
Leverage Ratio” means, with respect to any four (4) Fiscal Quarter period, the ratio of (x) Funded Debt as of the last day of such period to (y) Non-Consolidated EBITDA for such period.
LIBO Rate” as defined in the definition of “Adjusted LIBO Rate”.
LIBO Rate Circumstances” as defined in Section 2.15(a) (Inability to Determine Applicable Interest Rate).
LIBO Rate Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
LIBO Screen Rate” as defined in the definition of “Adjusted LIBO Rate”.
Lien” means (a) any lien, mortgage, pledge, assignment, security interest, hypothecation, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease or license in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing and (b) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.
LNG” means Gas in a liquid state at or below its boiling point at a pressure of approximately one atmosphere.
Loan” means a loan made by a Lender to Borrower pursuant to Section 2.1 (Loans) or deemed made by an Issuing Bank to Borrower pursuant to Section 2.2(d) (Drawings and Reimbursements).
Major Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), assignment, conveyance, exclusive license (as licensor or sublicensor), transfer or other disposition to, or any exchange of property with, any Person, in one transaction or a series of related transactions, of all or any part of the business, assets or properties of any kind of Borrower or any of its Subsidiaries, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, for aggregate consideration greater than $500,000,000, other than (a) sales or other dispositions of assets that are obsolete, worn-out, superfluous or no longer used or useful in the ordinary course of Borrower’s or such Subsidiary’s business, (b) sales or other dispositions of LNG, Gas or other commercial products or inventory or equipment in the ordinary course of Borrower’s or such Subsidiary’s business and the leasing or sub-leasing of real property in the ordinary course of Borrower’s or such Subsidiary’s business, (c) issuances of Equity Interests by Borrower, (d) dispositions of Cash or Cash Equivalents, (e) dispositions in compliance with any applicable Government Rule or
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Government Approval and (f) sales, discounting or forgiveness of accounts receivable in the ordinary course of Borrower’s or such Subsidiary’s business or in connection with the collection or compromise thereof.
Margin Stock” as defined in Regulation U.
Material Adverse Effect” means a material adverse effect on:
(a)the business, financial condition or results of operations of Borrower and its Subsidiaries, taken as a whole, that has a material adverse effect on Borrower’s ability to perform its material payment obligations under the Financing Documents;
(b)the security interests created by or under the relevant Security Documents, taken as a whole, including the material impairment of the rights of or benefits or remedies, taken as a whole, available to the Secured Parties; or
(c)the validity or enforceability of this Agreement or any of the other Financing Documents.
Material Project” means any capital project of Borrower or any of its Subsidiaries with an aggregate capital cost greater than $250,000,000.
Material Project EBITDA Adjustment” means an amount determined by Borrower and approved by Administrative Agent (such approval not to be unreasonably conditioned, delayed or withheld) equal to projected Non-Consolidated EBITDA of Borrower in respect of a Material Project (including dividends and distributions projected to be paid in Cash or Cash Equivalents to Borrower and payments projected to be received in Cash or Cash Equivalents by Borrower in repayment of good-faith loans made by Borrower) attributable to such Material Project for the first 12-month period following the projected commercial operation date of such Material Project (determined based on customer contracts relating to such Material Project, projected revenues from such contracts, capital costs and expenses, the projected commercial operation date, commodity price assumptions and other reasonable factors deemed appropriate by Administrative Agent (other than uncontracted customer cash flows, which shall not be deemed appropriate)); provided, that if the applicable actual commercial operation date does not occur by the guaranteed substantial completion date (or if there is no guaranteed substantial completion date, the latest scheduled completion date) set forth in the applicable project construction contract (as such date may be extended on a day-for-day basis due to a declared force majeure event permitted thereunder (and not for any other reason) so long as such extension could not reasonably be expected to result in the termination of any customer contracts (as so extended, the “Completion Date”)), the foregoing amount shall be reduced, for Fiscal Quarters ending after the Completion Date to (but excluding) the first full Fiscal Quarter after such actual commercial operation date, by the following percentage amounts depending on the period of delay (based on the actual period of delay or the then-estimated delay based on the reasonable determination of Borrower at the time of measurement and reasonably agreed by the applicable project independent engineer, whichever is longer): (i) 90 days or less, 0%, (ii) longer than 90 days, but not more than 180 days, 25%, (iii) longer than 180 days, but not more than 270
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days, 50%, (iv) longer than 270 days but not more than 365 days, 75%, and (v) longer than 365 days, 100%. On and after the actual commercial operation date, if the actual Non-Consolidated EBITDA of Borrower (including dividends and distributions projected to be paid in Cash or Cash Equivalents to Borrower and payments projected to be received in Cash or Cash Equivalents by Borrower in repayment of good-faith loans made by Borrower) attributable to such Material Project differ materially from the projected amounts, the Material Project EBITDA Adjustment for any applicable remaining Fiscal Quarters shall be re-determined in the same manner as provided above, as approved by Administrative Agent.
Measurement Period” as defined in Section 1.10(a)(i) (Sustainability Adjustments).
Mechanics’ Liens” means carriers’, warehousemen’s, laborers’, mechanics’, workmen’s, materialmen’s, repairmen’s, construction or other like statutory Liens.
Milestone Certificate” means a certificate substantially in the form of Exhibit G (Milestone Certificate) executed by a Financial Officer of Borrower (x) in the case of the Initial Milestone Certificate, confirming that at least two of the ESG Milestones have been achieved by the Initial Milestone Long-Stop Date and (y) in the case of the 2023 Milestone Certificate, to the extent one or more of the ESG Milestones was not achieved by the Initial Milestone Long-Stop Date, confirming that such ESG Milestone(s) have been achieved by December 31, 2023.
Milestone Fee Adjustment” means an increase of 0.01% to the Commitment Fee Rate.
Milestone Margin Adjustment” means an increase of 0.05% to the Applicable Margin.
Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of Cash an amount equal to 103% of the outstanding L/C Obligations of the applicable Issuing Bank with respect to Letters of Credit issued and outstanding at such time, and (b) otherwise, an amount determined by Administrative Agent and the applicable Issuing Bank, as applicable, in their sole discretion.
Moody’s” means Moody’s Investors Service, Inc.
Multiemployer Plan” means any “multiemployer plan” as defined in Section 3(37) of ERISA which is, or was within the six-year period immediately preceding the Closing Date, contributed to by, or required to be contributed by, Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates.
Net Debt Proceeds” means, an amount equal to, with respect to the incurrence of any Indebtedness by Borrower, other than Indebtedness permitted to be incurred under Section 6.1 (Indebtedness), the Cash proceeds received from such incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.
Net Income” means, for any period, the net income (or loss) of Borrower or a Subsidiary for such period, determined on an unconsolidated basis in accordance with GAAP.
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Non-Consenting Lender” as defined in Section 2.20 (Removal or Replacement of a Lender).
Non-Consolidated EBITDA” means, in respect of any period, the sum of:
(i) for Borrower, Net Income of Borrower for such period, excluding its equity in earnings of affiliate companies, plus
(a)each of the following to the extent deducted in determining such Net Income for such period: (i) all Interest Expense, (ii) all income taxes (including any franchise taxes to the extent based upon net income) of Borrower, (iii) all depreciation and amortization (including amortization of intangible assets) of Borrower for such period, (iv) any other non-cash charges or losses of Borrower for such period (including any non-cash losses resulting from the impairment of long-lived assets, goodwill or intangible assets and changes in the fair value of derivative instruments prior to contractual delivery or termination), (v) all transaction fees and expenses of Borrower for acquisitions, investments, dispositions and equity or debt offerings and (vi) all non-cash stock based compensation of Borrower; minus
(b)each of the following: (i) all non-cash items of income or gain of Borrower which were included in determining such Net Income for such period, and (ii) any cash payments made during such period in respect of items described in clause (a)(iv) above subsequent to the Fiscal Quarter in which the relevant non-cash charges or losses were reflected as a charge in determining such Net Income;
(ii) for all Subsidiaries of Borrower other than CQP and its consolidated Subsidiaries, the sum of the Net Income of such Subsidiaries for such period, plus
(a)each of the following to the extent deducted in determining such Net Income for such period: (i) all depreciation and amortization (including amortization of intangible assets) of such Subsidiaries for such period, (ii) any other non-cash charges or losses of such Subsidiaries for such period (including any non-cash losses resulting from the impairment of long-lived assets, goodwill or intangible assets and changes in the fair value of derivative instruments prior to contractual delivery or termination), (iii) all transaction fees and expenses of such Subsidiaries for acquisitions, investments, dispositions and equity or debt offerings, and (iv) all non-cash stock based compensation of such Subsidiaries; minus
(b)each of the following: (i) all non-cash items of income or gain which were included in determining such Net Income for such period, and (ii) any cash payments made during such period in respect of items described in clause (a)(ii) above subsequent to the Fiscal Quarter in which the relevant non-cash charges or losses were reflected as a charge in determining such Net Income;
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provided that, in calculating such amounts under this clause (ii) for Subsidiaries that are not wholly-owned, only the portion of such amounts reflecting Borrower’s direct and indirect percentage ownership interest in such Subsidiary shall be included;
(iii) for CQP and its consolidated Subsidiaries, Net Income of CQP and its consolidated Subsidiaries for such period, plus
(a)each of the following to the extent deducted in determining such Net Income for such period: (i) all depreciation and amortization (including amortization of intangible assets) of CQP and its consolidated Subsidiaries for such period, (ii) any other non-cash charges or losses of CQP and its consolidated Subsidiaries for such period (including any non-cash losses resulting from the impairment of long-lived assets, goodwill or intangible assets and changes in the fair value of derivative instruments prior to contractual delivery or termination) and (iii) all transaction fees and expenses of CQP and its consolidated Subsidiaries during such period for acquisitions, investments, dispositions and equity or debt offerings; minus
(b)each of the following: (i) all non-cash items of income or gain which were included in determining such Net Income for such period, and (ii) any cash payments made during such period in respect of items described in clause (a)(ii) above subsequent to the Fiscal Quarter in which the relevant non-cash charges or losses were reflected as a charge in determining such Net Income;
provided that, in calculating such amounts under this clause (iii), the portion of such amounts corresponding to the CQP Minority Interest shall be excluded;
(iv) Force Majeure Adjustments not to exceed 30% of Non-Consolidated EBITDA for such period (determined prior to any such Force Majeure Adjustments); and
(v) Material Project EBITDA Adjustments not to exceed 30% of Non-Consolidated EBITDA for such period (determined prior to any such Material Project EBITDA Adjustments).
Non-Extension Notice Date” as defined in Section 2.2(c)(iii) (Procedures for Issuance and Amendments of Letters of Credit; Auto-Extension Letters of Credit).
Non-Public Information” means material non-public information (within the meaning of United States federal, state or other applicable securities laws) with respect to Borrower or its Affiliates or their Securities.
Non-Reinstatement Deadline” as defined in Section 2.2(c)(iv) (Procedures for Issuance and Amendments of Letters of Credit; Auto-Extension Letters of Credit).
Note” means a promissory note in the form of Exhibit H, as it may be amended, restated, supplemented or otherwise modified from time to time.
Notice” means a Funding Notice, Issuance Notice, or a Conversion/Continuation Notice.
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NYFRB” means the Federal Reserve Bank of New York.
Obligations” means all obligations of every nature of Borrower, including obligations from time to time owed to Agents (including former Agents), Lenders or Issuing Banks under any Financing Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to Borrower, would have accrued on any Obligation, whether or not a claim is allowed against Borrower for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, fees, expenses, indemnification or otherwise.
Organizational Documents” means (a) with respect to any corporation or company, its certificate, memorandum or articles of incorporation, organization or association, as amended, and its bylaws, as amended, (b) with respect to any limited partnership, its certificate or declaration of limited partnership, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, and (d) with respect to any limited liability company, its certificate of formation, as amended, and its operating agreement or limited liability company agreement, as amended. In the event any term or condition of this Agreement or any other Financing Document requires any Organizational Document to be certified by a secretary of state or similar governmental official including an official of a non-United States government, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official in such official’s relevant jurisdiction.
Other Connection Taxes” means, with respect to a Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Financing Document, or sold or assigned an interest in any Loan or any Financing Document).
Other Taxes” means any and all present or future stamp, court, intangible, recording, filing or documentary Taxes or any other similar Taxes arising from any payment made under or from the execution, delivery, enforcement, performance or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Financing Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.20 (Removal or Replacement of a Lender).
Outstanding Amount” means (a) with respect to Loans on any date, the amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date and (b) with respect to any L/C Obligations, the aggregate outstanding amount of such L/C Obligations after giving effect to any L/C Credit Extension relating to any Letters of Credit occurring on such date and any other
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changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by Borrower of Unreimbursed Amounts relating to any Letters of Credit.
Participant Register” as defined in Section 9.6(g)(i) (Participations).
PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) of 2001, and the rules and regulations promulgated thereunder from time to time in effect.
Payment Recipient” has the meaning assigned to it in Section 8.12(a).
PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
Pension Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA, other than a Multiemployer Plan, which is, or was within the six-year period immediately preceding the Closing Date, sponsored, maintained or contributed to by, or required to be contributed to by, Borrower or any of its ERISA Affiliates and which is subject to the provisions of Title IV of ERISA or to Section 412 of the Internal Revenue Code or Section 302 of ERISA.
Permitted Business” means (a) the businesses engaged in by Borrower on the Closing Date and (b) any business or development opportunity incidental, ancillary, complimentary or reasonably related to the businesses conducted by Borrower on the Closing Date.
Permitted Liens” means each of the Liens permitted pursuant to Section 6.2 (Liens).
Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
Platform” as defined in Section 5.1 (Financial Statements and Other Reports).
Pledge and Security Agreement” means that certain Amended and Restated Pledge and Security Agreement, dated as of June 18, 2020 (and amended on the Closing Date), by and between Borrower and the Collateral Agent.
Pledged Entities” means each entity designated as such on Schedule 4.2 and any other direct Subsidiary of Borrower, the Equity Interests in which are required to be pledged pursuant to the Pledge and Security Agreement, other than Excluded Subsidiaries.
Prepayment Change of Control” means the occurrence of (a) a CQH Change of Control, CQP Change of Control, CCH Change of Control or SPL Change of Control or (b) Borrower ceasing to hold at least 50% of the CQP IDRs; provided, that Borrower may at any
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time exchange CQP IDRs for limited partnership interests in CQP and such exchange shall not constitute a Prepayment Change of Control hereunder.
Pricing Certificate Inaccuracy” as defined in Section 1.10(c) (Sustainability Adjustments).
Prime Rate” means the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as the Prime Rate, as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Agents or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
Principal Office” means, for each of Administrative Agent and Issuing Banks, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office of a third party or sub-agent, as appropriate, as such Person may from time to time designate in writing to Borrower, Administrative Agent and each Lender.
Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed, and whether corporeal or incorporeal and whether tangible or intangible.
Pro Rata Share” means, with respect to any Lender or any Issuing Bank (in such capacity and in its capacity as Lender), the percentage obtained by dividing (a) the Revolving Exposure of such Lender or Issuing Bank (in such capacity and its capacity as Lender) by (b) the aggregate Revolving Exposure of all Lenders and Issuing Banks (in such capacity and their capacity as Lenders).
PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Public Lenders” means Lenders that do not wish to receive Non-Public Information with respect to Borrower, its Affiliates or their securities.
QFC Credit Support” as defined in Section 2.26 (Acknowledgment Regarding Any Supported QFCs).
QMRV” as defined in the definition of “ESG Milestones.”
Quarterly Payment Date” means the last Business Day of each Fiscal Quarter.
Rating Decline” means, at any time during a Rating Decline Period, the downgrade by one or more Ratings Agencies of the Loans (or, if the Loans are not rated by any Ratings Agency, the corporate family rating of Borrower and its Subsidiaries) resulting in the Loans (or, if the Loans are not rated by any Ratings Agency, the corporate family rating of Borrower and its Subsidiaries) no longer having a rating from at least one Ratings Agency that is equal to the lower of (x) BB (if rated by S&P) / Ba2 (if rated by Moody’s) / BB (if rated by Fitch) (or if S&P, Moody’s and Fitch no longer rate the Loans or assign a corporate family rating to Borrower and
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its Subsidiaries, as applicable, the equivalent rating from such other “nationally recognized statistical rating organization” registered with the SEC as determined by Borrower) and (y) the rating assigned to the Loans (or, if the Loans are not rated by any Ratings Agency, the corporate family rating of Borrower and its Subsidiaries) by the applicable Ratings Agency immediately preceding the applicable Rating Decline Trigger Event; provided, however, that a Rating Decline otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred, as applicable, (A) in anticipation of a particular non-recurring Restricted Payment (and thus will be disregarded in determining whether a Rating Decline has occurred for purposes of Section 6.10(c) (Restricted Payments)) or (B) in anticipation or as a result, in whole or in part, of a particular Prepayment Change of Control (and thus will be disregarded in determining whether a Rating Decline has occurred for purposes of Section 2.11(b) (Change of Control Mandatory Prepayments)), in each case, if the Ratings Agency making the reduction in rating does not announce or publicly confirm that the reduction was in anticipation or the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the proposed non-recurring Restricted Payment or Prepayment Change of Control, as applicable.
Rating Decline Period” means the period beginning on the date of public notice of the intention by Borrower to (A) make a non-recurring Restricted Payment with the proceeds of any Major Asset Sale or Leveraged Recapitalization or (B) consummate a transaction that would result in a Prepayment Change of Control, and ending, in each case, on the earliest to occur of (x) the date that is ninety (90) days following such date (which period shall be extended so long as the rating of the Loans (or, if the Loans are not rated by any Ratings Agency, the corporate family rating of Borrower and its Subsidiaries) is under publicly announced consideration for downgrade by each Ratings Agency) and (y) the receipt by Borrower of a Ratings Reaffirmation.
Rating Decline Trigger Event” means (A) the consummation of a Major Asset Sale or Leveraged Recapitalization, as applicable, the proceeds of which are intended to be used to make an applicable non-recurring Restricted Payment, (B) the public announcement by Borrower of a transaction that, if consummated, would result in a Prepayment Change of Control or (C) the incurrence of Indebtedness by Borrower pursuant to Section 6.1(q).
Ratings Agency” means, at any time of determination, (i) to the extent such organization maintains a rating for the Loans, each of S&P, Moody’s or Fitch, (ii) if none of S&P, Moody’s or Fitch maintains a rating for the Loans at such time then, to the extent such organization maintains a corporate family rating for Borrower and its Subsidiaries at such time, each of S&P, Moody’s or Fitch or (iii) if none of S&P, Moody’s or Fitch maintains a rating for the Loans or a corporate family rating for Borrower and its Subsidiaries at such time, then any other “nationally recognized statistical rating organization” registered with the SEC as determined by Borrower that maintains a rating for the Loans or a corporate family rating for Borrower and its Subsidiaries at such time.
Ratings Reaffirmation” means the reaffirmation by any one Ratings Agency that the Loans (or, if the Loans are not rated by any Ratings Agency, the corporate family of Borrower and its Subsidiaries) will remain rated at least the lower of (x) BB (if rated by S&P) / Ba2 (if rated by Moody’s) / BB (if rated by Fitch) (or if S&P, Moody’s and Fitch no longer rate the
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Loans or the corporate family of Borrower and its Subsidiaries, as applicable, the equivalent rating from such other “nationally recognized statistical rating organization” registered with the SEC as determined by Borrower) and (y) the rating assigned to the Loans (or, if the Loans are not rated by any Ratings Agency, the corporate family rating of Borrower and its Subsidiaries) by the applicable Ratings Agency immediately preceding the Rating Decline Trigger Event, in the case of each of clauses (x) and (y), after giving effect to the applicable proposed non-recurring Restricted Payment, Prepayment Change of Control, or incurrence of Indebtedness by Borrower pursuant to Section 6.1(q).
Real Estate Asset” means, at any time of determination, any interest (whether fee, leasehold or otherwise) then owned or held by Borrower in any real property.
Recipient” means (a) Administrative Agent, (b) any Lender or (c) any Issuing Bank, as applicable.
Reference Time” means, with respect to any setting of the then-current Benchmark, (i) if such Benchmark is based on Term SOFR, then two Business Days prior to such setting, or (ii) in the case of any other Benchmark, the time determined by the Administrative Agent in its reasonable discretion.
Register” as defined in Section 2.5(b) (Register).
Regulation D” means Regulation D of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
Regulation T” means Regulation T of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
Regulation U” means Regulation U of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
Regulation X” means Regulation X of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the shareholders, partners, members, directors, officers, employees, agents, sub-agents, trustees, advisors and attorneys of such Person and of such Person’s Affiliates.
Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, or leaching of any Hazardous Substances into or through the environment.
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Released Collateral” as defined in Section 9.22(b)(ii) (Release of Liens).
Relevant Governmental Body” means the Board of Governors of, the Federal Reserve System or the Federal Reserve Bank of New York,Board, the NYFRB or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, orBoard or the NYFRB or, in each case, any successor thereto.
Replacement Lender” as defined in Section 2.20 (Removal or Replacement of a Lender).
Required Ratings” means, with respect to any Issuing Bank (or any Person that guarantees the obligations of such Issuing Bank to the beneficiary of the applicable Letter of Credit), a long term unsecured non-credit enhanced senior debt rating of Baa2 or better from Moody’s and BBB or better from S&P.
Requisite Lenders” means one or more Lenders or Issuing Banks, as applicable, having or holding Revolving Exposure amounting to more than fifty percent (50%) of the sum of the aggregate Revolving Exposure of all Lenders and Issuing Banks; provided that, for purposes of determining the Requisite Lenders, the Revolving Exposure of any Defaulting Lender shall be disregarded from both the numerator and denominator of the ratio.
Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
Restricted Payment” means any dividend or other distribution by Borrower (in cash, Property of Borrower, securities, obligations, or other property) on, or other dividends or distributions on account of, or the setting apart of money for a sinking or other analogous fund for, or the purchase, redemption, retirement or other acquisition by Borrower of, any portion of any Equity Interest in Borrower. Notwithstanding the foregoing, none of the following shall constitute Restricted Payments for purposes of this Agreement: (a) dividends or distributions in the form of Equity Interests in Borrower and Cash payments by Borrower to holders of Common Equity of Borrower in lieu of the issuance of fractional shares of such Common Equity; (b) purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Equity Interests of Borrower deemed to occur upon the exercise of stock options, warrants or other rights in respect thereof; (c) any dividends paid within 60 days after the date of declaration if at such date of declaration such dividend would have complied with this provision; (d) any Restricted Payment required by the terms of an agreement in effect on the Closing Date; and (e) the payment of any premium on, and the payment of other amounts and/or delivery of any Equity Interest due upon exercise and settlement or termination of, any bond hedge, capped call or similar option transaction, in each case, entered into in connection with the issuance of any debt security that is convertible into, or exchangeable for, Equity Interests.
Restricted Payment Certificate” means a Restricted Payment Certificate substantially in the form attached hereto as Exhibit J.
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Revolving Exposure” means, with respect to each Issuing Bank (in such capacity and its capacity as Lender) or Lender as of any date of determination, (a) prior to the termination of the Commitments, the Commitments of such Issuing Bank or Lender, as the case may be; and (b) after the termination of the Commitments, the sum of the aggregate L/C Obligations in respect of all Letters of Credit issued by such Issuing Bank, if applicable, and the aggregate amount of all Loans made by such Issuing Bank or Lender, as the case may be, that have not been repaid at such time.
S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc.S&P Global Ratings, an S&P Global Ratings Inc. business, and any successor or successors thereto.
Sabine Pass Project” means the LNG terminal located in Cameron Parish, Louisiana that, as of the date hereof, is owned and operated by Sabine Pass LNG, L.P.
Sanctions” as defined in Section 4.23 (Sanctioned Persons; Anti-Corruption; PATRIOT Act).
Sanctions Laws” as defined in Section 4.23 (Sanctioned Persons; Anti-Corruption; Patriot Act).
Secured Parties” means the Agents, the Issuing Banks and the Lenders and shall include all former Agents, Issuing Banks and Lenders to the extent that any Obligations owing to such Persons were incurred while such Persons were Agents, Issuing Banks or Lenders and such Obligations have not been paid or satisfied in full.
Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
Securities Act” means the Securities Act of 1933.
Security Documents” means the Pledge and Security Agreement, the Collateral Agency Appointment Agreement, the Control Agreements, if any, and all other instruments, documents and agreements delivered by or on behalf of Borrower pursuant to this Agreement or any of the other Financing Documents in order to grant to, or perfect in favor of, Collateral Agent, for the benefit of the Secured Parties, a Lien on any real, personal or mixed property of Borrower as security for the Obligations.
SOFR” means a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New
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York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).
SOFR” means the secured overnight financing rate as administered by the SOFR Administrator.
SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
Solvent” means, with respect to any Person, that as of the date of determination, (i) both the then-present fair saleable value of the Person’s then-present assets is (a) greater than the total liabilities (including contingent liabilities) of such Person and (b) greater than the amount that will be required to pay the probable liabilities of such Person’s then-existing indebtedness as they become absolute and matured; (ii) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date or with respect to any transaction contemplated to be undertaken after the Closing Date; and (iii) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise). For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
SPL” means Sabine Pass Liquefaction, LLC.
SPL Change of Control” means CQP shall own, directly or indirectly, less than 50% of the voting and economic interests in SPL.
SPL Project” means the Sabine Pass Liquefaction Project, the subject of FERC Docket Nos. CP11-72-000 and CP13-552-000, located on the Sabine Pass River in Cameron Parish, Louisiana.
Springing Financial Covenant” as defined in Section 6.5 (Financial Covenant).
Stated Amount” has the meaning specified for such term or similar term in any Letter of Credit, as such amount may be reduced from time to time pursuant to the terms of such Letter of Credit.
Subordinated Indebtedness” means any unsecured Indebtedness of Borrower which is subordinated to the Obligations pursuant to an instrument in writing reasonably satisfactory in form and substance to Administrative Agent; provided that such instrument shall include that: (a) the maturity of such subordinated debt shall be no shorter than the maturity of the Indebtedness evidenced hereby; (b) such subordinated debt shall not be amortized; and (c) no interest
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payments shall be made under such subordinated debt except from monies that are permitted to be distributed pursuant Section 6.10 (Restricted Payments).
Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, Joint Venture or other business entity of which more than fifty percent (50%) of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, trustees or other Persons performing similar functions having the power to direct or cause the direction of the management and policies of such business entity is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof; provided that, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding; provided, further, that, notwithstanding anything to the contrary contained in this definition, SPL shall be a Subsidiary of Borrower for all purposes hereunder unless an SPL Change of Control shall have occurred. Unless otherwise specified, all references herein to “Subsidiaries” shall refer to Subsidiaries of Borrower.
Supported QFC” as defined in Section 2.26 (Acknowledgment Regarding Any Supported QFCs).
SWIFT” as defined in Section 2.2(g) (Role of an Issuing Bank).
Tax” means any and all present or future taxes, levies, imposts, duties, assessments, charges, fees, deductions or withholdings (including backup withholding), of any nature imposed by any Governmental Authority, including any interest, penalties or other additions thereto.
Term SOFRmeans, with respect to any borrowing of Term SOFR Loans and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate on the day (such day, the “Term SOFR Determination Date”) that is two U.S. Government Securities Business Days prior to the commencement of such Interest Period, as such rate is published by the CME Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on such Term SOFR Determination Date, the Term SOFR Reference Rate for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR for such Term SOFR Determination Date will be the Term SOFR Reference Rate for such tenor as published by the CME Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than three U.S. Government Securities Business Days prior to such Term SOFR Determination Date.
Term SOFR Determination Date” has the meaning specified in the definition of “Term SOFR”.
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Term SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR.
Term SOFR” means, for the applicable corresponding tenor, Reference Rate” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
Terminated Lender” as defined in Section 2.20 (Removal or Replacement of a Lender).
Total Utilization of Commitments” means, as at any date of determination, the sum of (a) the amount of the aggregate principal amount of all outstanding Loans, and (b) the amount of the aggregate L/C Obligations.
Type of Loan” means, with respect to any Loan, a Base Rate Loan or a LIBO RateTerm SOFR Loan.
UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.
UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
Unadjusted Benchmark Replacement means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
Unreimbursed Amount” as defined in Section 2.2(d)(i) (Drawings and Reimbursements).
Unrestricted Cash” means Borrower’s unrestricted cash, calculated on a consolidated basis in accordance with GAAP (and including, for the avoidance of doubt, any cash held in any account subject to a Control Agreement or otherwise pledged to the Lenders in connection with the Financing Documents).

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U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
U.S. Person” means a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
U.S. Tax Compliance Certificate” as defined in Section 2.17(c)(ii) (Status of Lenders).
Vessel Program” as defined in the definition of “ESG Milestones.”
Withholding Agent” means Borrower and Administrative Agent.
Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Borrower to Lenders pursuant to Section 5.1(a) (Quarterly Financial Statements) and 5.1(b) (Annual Financial Statements) shall be prepared in accordance with GAAP as in effect at the time of such preparation. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Financing Document, and Borrower shall so request, Administrative Agent and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Requisite Lenders); provided that, until so amended, such ratio or requirement shall continue to be computed in conformity with those accounting principles and policies as in effect immediately prior to such change.
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1.3Interpretation, Etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The terms lease and license shall include sub-lease and sub-license, as applicable. A reference to a statute includes all regulations made pursuant to such statute and, unless otherwise specified, the provisions of any statute or regulation which amends, revises, restates, supplements or supersedes any such statute or any such regulation. In this Agreement, where the terms “continuing”, “continuance” or words to similar effect are used in relation to a Default or an Event of Default, the terms shall mean only that the applicable event or circumstance has not been remedied, waived, cured or ceased to exist. Notwithstanding anything to the contrary contained herein, any Default or Event of Default (and any Default or Event of Default resulting from failure to provide notice thereof) shall be deemed not to be “continuing” or “existing” if the events, act or condition that gave rise to such Default or Event of Default have been remedied, waived, cured or have ceased to exist. Unless the context requires otherwise any definition of or reference to any agreement, instrument or other document herein or in any Financing Document shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified or extended, renewed, replaced or refinanced (subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements, supplements or modifications or extensions, replacements or refinancings set forth herein).
1.4Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Stated Amount of such Letter of Credit in effect at such time; provided that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount or available amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Stated Amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum Stated Amount is in effect at such time.
1.5Timing of Payment or Performance. Except as otherwise provided herein, when the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day (it being understood that the foregoing shall cause any grace period associated with any such payment obligation or performance of any covenant, duty or obligation to extend to the immediately succeeding Business Day as well).
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1.6Negative Covenant Compliance and Other Calculations. With respect to determining whether Borrower complies with any negative covenant in Section 6 (Negative Covenants) (other than the Springing Financial Covenant), to the extent that any obligation, transaction or action could be attributable to more than one exception to any such negative covenant, Borrower may divide and/or categorize, or later re-divide and/or re-categorize, all or any portion of such obligation, transaction or action to any one or more exceptions to such negative covenant that permit such obligation, transaction or action at the time of categorization thereof.
1.7Certifications. All certifications to be made hereunder by an officer or representative of Borrower shall be made by such a Person in his or her capacity solely as an officer or a representative of Borrower, on Borrower’s behalf and not in such Person’s individual capacity.
1.8Rounding. Any financial ratios required to be maintained by Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number.
1.9Divisions. For all purposes under the Financing Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
1.10Sustainability Adjustments.
(a)Eligible Expenditures.
(i)Commencing with the Fiscal Year ending December 31, 2022, within 120 days after the end of each Fiscal Year Borrower may, in its sole discretion, choose to deliver an Eligible Expenditure Certificate to the ESG Coordinator and Administrative Agent related to (x) the period beginning on the Closing Date and ending on December 31, 2022, in the case of the first such certificate, and (y) the preceding Fiscal Year, in the case of each subsequent certificate (each such applicable period, a “Measurement Period”).
(ii)From and after the date on which an Eligible Expenditure Certificate is delivered and during the then applicable Eligible Expenditure Application Period, Available Eligible Expenditures shall automatically be applied dollar-for-dollar to reduce (x) the Applicable Margin (by an amount not greater than five (5) basis points during the applicable Eligible Expenditure Application Period) and (y) the Commitment Fee Rate (by an amount not
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greater than one (1) basis point during the applicable Eligible Expenditure Application Period), in each case as interest, Letter of Credit Fees and Commitment Fees become due.
(iii)For the avoidance of doubt, only one Eligible Expenditure Certificate may be delivered in respect of any Measurement Period.
(b)ESG Milestones.
(i)Following the Closing Date Borrower may, in its sole discretion, choose to deliver a Milestone Certificate to the ESG Coordinator and Administrative Agent no later than (x) June 30, 2023 (the “Initial Milestone Certificate”) and (y) December 31, 2023 (the “2023 Milestone Certificate”).
(ii)If the Initial Milestone Certificate is not delivered on or prior to June 30, 2023 (the “Initial Milestone Long-Stop Date”), (x) the Applicable Margin shall be increased by the Milestone Margin Adjustment and (y) the Commitment Fee Rate shall be increased by the Milestone Fee Adjustment, in each case, commencing on July 1, 2023; provided that if the 2023 Milestone Certificate is delivered on or prior to December 31, 2023, the Applicable Margin and the Commitment Fee Rate as of and following the day immediately following the date of such delivery shall be decreased to eliminate the Milestone Margin Adjustment and Milestone Fee Adjustment.
(iii)If the Initial Milestone Certificate is delivered on or prior to the Initial Milestone Long-Stop Date but (x) the Initial Milestone Certificate does not confirm that three of the ESG Milestones have been achieved and (y) the 2023 Milestone Certificate is not delivered on or prior to December 31, 2023, then, without duplication of any increase to the Applicable Margin or Commitment Fee Rate provided for in clause (ii) above, (A) the Applicable Margin shall be increased by the Milestone Margin Adjustment and (B) the Commitment Fee Rate shall be increased by the Milestone Fee Adjustment, in each case, commencing on January 1, 2024 for the remaining term of this Agreement.
(iv)Upon reasonable request from the ESG Coordinator Borrower will provide (as determined by Borrower in good faith but in consultation with the ESG Coordinator), independent verification of the achievement of one or more of the ESG Milestones described in a Milestone Certificate.
(c)If Borrower or any Lender becomes aware of any material inaccuracy in any Eligible Expenditure Certificate or Milestone Certificate, including in any calculations therein (any such material inaccuracy, a “Pricing Certificate Inaccuracy”), and, in the case of any Lender, such Lender delivers, not later than five (5) Business Days after obtaining knowledge thereof, a written notice to Borrower and Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail, Borrower and Administrative Agent shall consult in good faith on corrected calculations and, to the extent corrected calculations are agreed upon, subsequent interest, Letter of Credit Fee and/or Commitment Fee payments shall be adjusted upwards or downwards (but not below zero) to correct for such Pricing Certificate Inaccuracy. If corrected calculations
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are not agreed upon, any proceeding brought in connection therewith shall be subject to the dispute resolution provisions of this Agreement. It is understood and agreed that a Pricing Certificate Inaccuracy (including the effect thereof on interest and fee payments under this Agreement) shall not constitute a Default or Event of Default, provided that Borrower complies with the terms of this Section 1.10(c).
(d)Each party hereto hereby agrees that neither Administrative Agent nor ESG Coordinator shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by Borrower of any Eligible Expenditures, Milestone Margin Adjustment or Milestone Fee Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Eligible Expenditure Certificate or Milestone Certificate, as applicable (and Administrative Agent and ESG Coordinator may rely conclusively on any such certificate, without further inquiry).
1.11Benchmark Exculpation. The interest rate on a Loan may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.24 provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative or successor rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service except to the extent caused by its gross negligence, willful misconduct or bad faith.
SECTION 2.LOANS AND LETTERS OF CREDIT
2.1Loans.
(a)Loans. During the Availability Period, subject to the terms and conditions hereof, each Lender agrees to make Loans to Borrower in an aggregate amount up to but
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not exceeding its Commitment; provided that, after giving effect to the making of any Loans pursuant to this Section 2.1(a), the Total Utilization of Commitments shall in no event exceed the Commitments then in effect; and provided further that, no Lender shall be required to make a Loan to Borrower in an amount that exceeds its Pro Rata Share of the aggregate Commitments at such time. Amounts borrowed pursuant to this Section 2.1 may be repaid and reborrowed during the Availability Period, in accordance with the terms of this Agreement. The Commitments shall expire on the Commitment Termination Date and Borrower hereby unconditionally promises to pay in full to Administrative Agent for the account of each Lender all Loans and all other amounts owed to such Lender hereunder with respect to the Loans and the Commitments no later than such date.
(b)Borrowing Mechanics.
(i)Loans shall be made in an aggregate minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of that amount, or, if the remaining total Commitments are less than $2,000,000 or $1,000,000, as applicable, such remaining amount.
(ii)Subject to Section 3.3 (Notices), whenever Borrower desires that a Loan be extended to Borrower, Borrower shall deliver to Administrative Agent a fully executed and delivered Funding Notice no later than (A) 12:00 p.m. (New York City time) at least three (3) Business Days in advance of the proposed Credit Date in the case of a LIBO RateTerm SOFR Loan, and (B) 10:00 am10:00 a.m. (New York City time) on the proposed Credit Date in the case of a Base Rate Loan. Except as otherwise provided herein, a Funding Notice for a LIBO RateTerm SOFR Loan shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to make a borrowing in accordance therewith.
(iii)Notice of receipt of each Funding Notice in respect of a Loan, together with the applicable interest rate, shall be provided by Administrative Agent to each Lender in accordance with Section 9.1(b)(i) (Electronic Communications) with reasonable promptness, but (provided that Administrative Agent shall have received such notice by 10:00 a.m. (New York City time)) not later than 12:00 p.m. (New York City time) on the same day as Administrative Agent’s receipt of such Notice from Borrower.
(iv)Each Lender shall make its Pro Rata Share of the amount of the Loan available to Administrative Agent not later than 1:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of immediately available funds at the Principal Office of Administrative Agent. Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of such Loans available to Borrower on the applicable Credit Date by causing an amount of immediately available funds equal to the proceeds of all such Loans received by Administrative Agent from the Lenders to be (x) paid to Borrower’s account specified in the Funding Notice or (y) paid directly to the applicable payee’s account as specified by Borrower in the Funding Notice.
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(v)Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Borrower to repay such Loan in accordance with the terms of this Agreement; and provided further that, for the avoidance of doubt, each Lender exercising such option shall continue to be required to comply with its obligations under Section 2.18 (Obligation To Mitigate).
2.2Letters of Credit.
(a)Letter of Credit Commitment.
(i)Subject to the terms and conditions set forth herein, each Issuing Bank agrees, in reliance upon the agreements of Borrower set forth in this Section 2.2, (A) from time to time on any Business Day during the Availability Period, to issue Letters of Credit for the account or benefit of Borrower or any of Borrower’s Subsidiaries, and to amend or extend Letters of Credit previously issued by it in accordance with Section 2.2(c), and (B) to honor complying presentations under the Letters of Credit; provided that (1) no Letter of Credit shall be issued or extended during the last thirty (30) days of the Availability Period, (2) after giving effect to any L/C Credit Extension with respect to any Letter of Credit, the aggregate amount of Letters of Credit shall not exceed the aggregate Fronting Limit of all Issuing Banks with a Fronting Limit, (3) the sum of L/C Obligations, Loans and unpaid Letter of Credit Fees owing to such Issuing Bank shall not exceed such Issuing Bank’s Commitment and its Fronting Limit, (4) the Total Utilization of Commitments shall not exceed the Commitments then in effect and (5) the outstanding amount of L/C Obligations do not exceed the L/C Sublimit. Each request by Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and fully reimbursed (including the repayment in full of all Unreimbursed Amounts and all Loans made, in each case, with respect to such Letter of Credit).
(ii)No Issuing Bank shall issue any particular Letter of Credit, if:
(A)subject to Section 2.2(c)(iii), the expiry date of the requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless such Issuing Bank has approved such expiry date; or
(B)the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless such Issuing Bank has approved such expiry date.
(iii)No Issuing Bank shall be under any obligation to issue any particular Letter of Credit if:
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(A)any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which is material to such Issuing Bank;
(B)the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally;
(C)except as otherwise agreed by Administrative Agent and the applicable Issuing Bank, the requested Letter of Credit is in an initial Stated Amount less than $100,000;
(D)the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(E)the proposed use of the Letter of Credit is not in accordance with Section 2.4 (Use of Proceeds); or
(F)the requested form of such Letter of Credit is not acceptable to the Issuing Bank, in its reasonable discretion.
(iv)No Issuing Bank shall amend any Letter of Credit if such Issuing Bank would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v)An Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi)Each Issuing Bank shall have all of the benefits and immunities (A) provided to Administrative Agent in Section 8 (Agents) with respect to any acts taken or omissions suffered by any Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Section 8 (Agents) included such Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to each Issuing Bank.
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(b)Fronting.
(i)All Letters of Credit issued hereunder shall be Fronted Letters of Credit; provided that, Borrower may only request Letters of Credit from Issuing Banks that are specified in this Agreement as having a Fronting Limit.
(ii)Each Lender severally agrees with each Issuing Bank to participate in an amount equal to its Pro Rata Share in the extension of credit resulting from the issuance (or extension, modification or amendment) of a Letter of Credit by such Issuing Bank and each drawing of the Stated Amount thereunder, in the manner and the amount provided in Section 2.2(d) (Drawings and Reimbursements), and the issuance of such Letter of Credit shall be deemed to be a confirmation by the Issuing Bank and each Lender of such participation in such amount; provided that, no Lender shall be required to participate in a Letter of Credit if the sum of such Lender’s L/C Obligations, Loans and unpaid Letter of Credit Fees owing to such Lender would exceed such Lender’s Commitment as a result of such participation.
(c)Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i)Subject to Section 3 (Conditions Precedent), each Letter of Credit shall be issued or amended, as the case may be, upon the request of Borrower delivered to each applicable Issuing Bank during the period specified in Section 2.2(a) (with a copy to Administrative Agent) in the form of an Issuance Notice, appropriately completed and signed by an Authorized Officer of Borrower. Such Issuance Notice must be received by each applicable Issuing Bank and by Administrative Agent not later than 12:00 p.m. (New York City time) at least two (2) Business Days (or such later date and time as Administrative Agent and the applicable Issuing Bank(s) may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Issuance Notice shall specify in form and detail satisfactory to the applicable Issuing Bank: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof (including a final expiration date in the case of an Auto-Extension Letter of Credit); (D) the name and address of the beneficiary thereof; (E) the form of such letter of credit (which shall be in compliance with the requirements of this Section 2.2) and the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit, which shall be in accordance with Section 2.4 (Use of Proceeds), as certified by Borrower in such Issuance Notice; (H) the name of the applicant of such Letter of Credit; and (I) such other matters as the applicable Issuing Bank may reasonably require and shall be accompanied by such Letter of Credit application as the applicable Issuing Bank may specify to Borrower for use in connection with such requested Letter of Credit and such other information as shall demonstrate compliance of such Letter of Credit with the requirements specified in this Agreement and such Letter of Credit application. In the case of a request for an amendment of any outstanding Letter of Credit, such Issuance Notice shall specify in form and detail reasonably satisfactory to the applicable Issuing Bank (w) the Letter of Credit to be
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amended; (x) the proposed date of amendment thereof (which shall be a Business Day); (y) the nature of the proposed amendment; and (z) such other matters as the applicable Issuing Bank may reasonably require and shall be accompanied by such Letter of Credit application as the applicable Issuing Bank may specify to Borrower for use in connection with such requested Letter of Credit and such other information as shall demonstrate compliance of such Letter of Credit with the requirements specified in this Agreement and such Letter of Credit application. Additionally, Borrower shall furnish to the applicable Issuing Bank and Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the applicable Issuing Bank or Administrative Agent may reasonably require.
For the avoidance of doubt, subject to compliance with the requirements of Section 2.2(a) and Section 2.2(b), Borrower may request Fronted Letters of Credit from any Issuing Bank with a Fronting Limit up to such Issuing Bank’s full Fronting Limit.
(ii) Unless the applicable Issuing Bank has received written notice from Administrative Agent or Borrower, in any case, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 3 (Conditions Precedent) shall not then be satisfied, then, subject to the terms and conditions hereof, the applicable Issuing Bank shall, on the requested date, issue a Letter of Credit for the account of Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with such Issuing Bank’s usual and customary business practices and, with respect to any amendment of a Letter of Credit, so long as the amendment is satisfactory to the Issuing Bank.
(iii)If Borrower so requests in any applicable Issuance Notice, the applicable Issuing Bank shall issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit such Issuing Bank to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a date to be agreed in each such twelve-month period at the time such Letter of Credit is issued (the “Non-Extension Notice Date”). Once an Auto-Extension Letter of Credit has been issued, unless otherwise directed by the applicable Issuing Bank, Borrower shall not be required to make a specific request to such Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the applicable Issuing Bank shall permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided that the applicable Issuing Bank shall not permit any such extension if (A) such Issuing Bank has determined that it would not be permitted, or would have no obligation (without any obligation to make any inquiry to make a determination that it is not so permitted or obligated), at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of Section 2.2(a)(ii) or Section 2.2(a)(iii) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from Administrative Agent or Borrower that one or more of the applicable conditions specified in Section 3 (Conditions Precedent) is not then satisfied (or a Default or an Event of
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Default has occurred and is continuing), and in each such case directing such Issuing Bank not to permit such extension.
(iv)Subject to Section 2.2(a)(iii)(D) (Letter of Credit Commitment), if Borrower so requests in any applicable Issuance Notice and/or Letter of Credit application, as applicable, the applicable Issuing Bank may issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Once an Auto-Reinstatement Letter of Credit has been issued, unless otherwise directed by the applicable Issuing Bank in its sole discretion, Borrower shall not be required to make a specific request to such Issuing Bank to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the applicable Issuing Bank shall permit the reinstatement of all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits such Issuing Bank to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”), such Issuing Bank shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Reinstatement Deadline from Administrative Agent or Borrower that one or more of the applicable conditions specified in Section 3 (Conditions Precedent) is not then satisfied (or a Default or Event of Default has occurred and is continuing) (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing such Issuing Bank not to permit such reinstatement.
(v)Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to the beneficiary thereof, the applicable Issuing Bank will also deliver to Borrower and Administrative Agent (A) a true and complete copy of such Letter of Credit or amendment or (B) the following information in respect of such Letter of Credit or amendment: Stated Amount, expiry date, evergreen notification period and name of beneficiary.
(vi)Anything herein to the contrary notwithstanding, in the event of any conflict between the terms of any Issuance Notice, any application for a Letter of Credit and those of this Agreement, the terms of this Agreement shall be controlling.
(d)Drawings and Reimbursements.
(i)Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable Issuing Bank shall notify Borrower and Administrative Agent, and the participating Issuing Banks. Not later than 1:00 p.m. (New York City time) on the date such notice of a drawing has been honored by the applicable Issuing Bank under a Letter of Credit in accordance with normal banking procedures in the place of payment (each such date, an “Honor Date”), Borrower shall reimburse such Issuing Bank in an amount equal to the amount of such drawing. If Borrower fails to so reimburse such Issuing Bank by such time, such Issuing Bank shall notify Administrative Agent of the Honor Date and the amount of the unreimbursed drawing (the “Unreimbursed Amount”).
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In such event, Borrower shall be deemed to have requested a Base Rate Loan from such Issuing Bank to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount (in which event the unreimbursed drawing shall no longer be considered an Unreimbursed Amount for all purposes hereunder), without regard to the minimum and multiples specified in Section 2.1 (Loans) for the principal amount of Base Rate Loans or the conditions set forth in Section 3 (Conditions Precedent). Any notice given by an Issuing Bank or Administrative Agent pursuant to this Section 2.2(d)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii)Upon providing any notice pursuant to Section 2.2(d)(i), the applicable Issuing Bank shall be deemed to have made a Base Rate Loan to Borrower in such Unreimbursed Amount. Administrative Agent shall promptly notify each of the Lenders of the amount of its share of the payment made under such Letter of Credit, which shall be such Lender’s Pro Rata Share of such amount paid by such Issuing Bank (the “Lender Payment Notice”). Subject to Section 2.2(b) (Fronting), each Lender hereby severally agrees to pay the amount specified in the Lender Payment Notice in immediately available funds to Administrative Agent for the account of such Issuing Bank with respect to such Letter of Credit plus interest on such amount at a rate per annum equal to the Federal Funds Effective Rate from the date of such payment by such Issuing Bank to the date of payment to such Issuing Bank by such Lender. Each Lender shall make such payment by not later than 4:00 p.m., New York City time, on the date it received the Lender Payment Notice (if such notice is received at or prior to 1:00 p.m., New York City time) and before 12:00 noon, New York City time, on the next succeeding Business Day following such receipt (if such notice is received after 1:00 p.m., New York City time). Each Lender shall indemnify and hold harmless such Issuing Bank from and against any and all losses, liabilities (including liabilities from penalties), actions, suits, judgments, demands, costs, and expenses (including reasonable attorneys’ fees and expenses) resulting from any failure on the part of such Lender to provide, or from any delay in providing, Administrative Agent for the account of such Issuing Bank with its Pro Rata Share of the amount paid under the Letter of Credit but no such Lender shall be so liable for any such failure on the part of or caused by any other Lender or the willful misconduct or gross negligence, as determined by a court of competent jurisdiction by a final and non-appealable order, of Administrative Agent. Each Lender’s obligation to make each such payment to Administrative Agent for the account of the applicable Issuing Bank in the case of payments made in respect of a Letter of Credit shall be several and not joint and shall not be affected by (A) the occurrence or continuance of any Event of Default, (B) the failure of any other Lender to make any payment under this Section 2.2(d)(ii), or (C) the date of the drawing under the applicable Letter of Credit issued by the applicable Issuing Bank; provided that, such drawing occurs prior to the earlier of (i) the Final Maturity Date or (ii) the termination date of the applicable Letter of Credit. Each Lender further agrees that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(iii)Administrative Agent shall pay to the applicable Issuing Bank in immediately available funds the amounts paid in respect of a Letter of Credit pursuant to this Section 2.2(d) before the close of business on the day such payment is received; provided that,
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any amount received by Administrative Agent that is due and owing to such Issuing Bank and remains unpaid to such Issuing Bank on the date of receipt shall be paid on the next succeeding Business Day with interest payable at the Federal Funds Effective Rate.
(iv)For so long as any Lender is a Defaulting Lender under clause (a) of the definition thereof, each Issuing Bank shall be deemed, for purposes of Section 2.14 (Ratable Sharing) and Article 7, to be a Lender hereunder in substitution of such Defaulting Lender, owed a loan in an amount equal to the outstanding principal amount due and payable by such Defaulting Lender to Administrative Agent for the account of each Issuing Bank in respect of such Letter of Credit pursuant to Section 2.2(d)(ii) above. Notwithstanding anything else to the contrary contained herein, the failure of any Lender to make any required payment in response to any drawing notice in respect of a Letter of Credit shall not increase the total aggregate amount payable by Borrower with respect to the payment described in the related drawing notice in respect of a Letter of Credit above the total aggregate amount that would have been payable by Borrower at the applicable rate for Loans if such Defaulting Lender would have funded its payments to Administrative Agent in a timely manner in respect to such drawing notice in respect of a Letter of Credit.
(v)Each payment made by a Lender under Section 2.2(d)(ii) above shall constitute a deemed loan made by such Lender to Borrower on the date of such payment by an Issuing Bank under a Letter of Credit issued by such Issuing Bank. All such payments by the Lenders in respect of any one such payment by such Issuing Bank shall constitute a single deemed loan hereunder.
(vi)Each applicable Issuing Bank’s obligation to make Loans as contemplated by this Section 2.2(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Issuing Bank may have against Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default; (C) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (D) failure of the beneficiary to comply fully with the conditions required in order to demand payment under a Letter of Credit; or (E) any other occurrence, event or condition, whether or not similar to any of the foregoing, including any of the events specified in Section 2.2(f) (Obligations Absolute). No such making of a Loan shall relieve or otherwise impair the obligation of Borrower to reimburse the applicable Issuing Bank for the amount of any payment made by such Issuing Bank under any Letter of Credit, together with interest as provided herein.
(vii)In the event that more than one Letter of Credit is issued and outstanding in favor of the same beneficiary and for the same purpose, Borrower shall instruct such beneficiary of such Letters of Credit to draw on each such Letter of Credit on a ratable basis.
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(e)Cash Collateral.
(i)Unreimbursed Amounts; Letter of Credit Expiration Date. Upon the request of Administrative Agent and any Issuing Bank, as applicable, (1) if such Issuing Bank has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an Unreimbursed Amount, or (2) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, Borrower shall, in each case, immediately Cash Collateralize 103% of the amount of then Outstanding Amount of all L/C Obligations.
(ii)Cash Collateralization Upon Event of Default. Without limiting Issuing Banks’ or Administrative Agent’s rights under applicable law or pursuant to Section 2.2(e)(i) or the applicable Issuer Documents, upon the occurrence and during the continuation of an Event of Default under Section 7 (Events of Default), Administrative Agent may, and at the direction of the Requisite Lenders shall, require Borrower to Cash Collateralize the outstanding Letters of Credit.
(iii)Grant of Security Interest. All Cash Collateral provided by or on behalf of Borrower (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts located in the United States, at one or more institutions selected by Administrative Agent. Borrower hereby grants to Administrative Agent, for the benefit of Administrative Agent and each Issuing Bank, and agrees to maintain, a first-priority security interest in all such Cash Collateral. If at any time Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than Administrative Agent and the applicable Issuing Bank as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, Borrower will, promptly upon demand by Administrative Agent, pay or provide to Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.
(iv)Termination of Requirement. Cash Collateral furnished by or on behalf of Borrower shall not be released during the existence of a Default or Event of Default.
(f)Obligations Absolute. The obligation of Borrower to reimburse the applicable Issuing Bank for each drawing under each Letter of Credit and to repay each Loan deemed made pursuant to Section 2.2(d) (Drawings and Reimbursements) shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i)any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Financing Document;
(ii)the existence of any claim, counterclaim, setoff, defense or other right that Borrower may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), any Issuing Bank or any other Person, whether in connection with this Agreement, the
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transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv)waiver by the applicable Issuing Bank of any requirement that exists for such Issuing Bank’s protection and not the protection of Borrower or any waiver by such Issuing Bank which does not in fact materially prejudice Borrower;
(v)honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
(vi)any payment made by the applicable Issuing Bank in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under, such Letter of Credit if presentation after such date is authorized by the UCC or the ISP, as applicable;
(vii)any payment by the applicable Issuing Bank under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the applicable Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
(viii)any amendment or waiver of or any consent or departure from all or any of the provisions of the Financing Documents or Letter of Credit;
(ix)any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Borrower; or
(x)any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, Borrower.
Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with Borrower’s instructions or other irregularity, Borrower will immediately notify the applicable Issuing Bank. Borrower shall be conclusively deemed to have waived any such claim against such Issuing Bank and its correspondents unless such notice is given as aforesaid.
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(g)Role of an Issuing Bank. Borrower agrees that, in paying any drawing under a Letter of Credit, the applicable Issuing Bank shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Issuing Banks, Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any Issuing Bank shall be liable or responsible for any of the matters described in Sections 2.2(f)(i) through 2.2(f)(ix) (Obligations Absolute); provided that, anything in such Sections to the contrary notwithstanding, Borrower may have a claim against any Issuing Bank, and such Issuing Bank may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by such Issuing Bank’s willful misconduct or gross negligence or such Issuing Bank’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of all the documents specified in such Letter of Credit strictly complying with the terms and conditions of a Letter of Credit, such willful misconduct, gross negligence, or willful failure as determined by a final, non-appealable judgment of a court of competent jurisdiction. In furtherance and not in limitation of the foregoing, any Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such Issuing Bank shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The Issuing Bank may send a Letter of Credit or conduct any communication to or from the beneficiary via a Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
(h)Applicability of ISP. Unless otherwise expressly agreed by the applicable Issuing Bank and Borrower when a Letter of Credit is issued or when it is amended with the consent of the beneficiary thereof, the rules of the ISP shall apply to each Letter of Credit and as to all matters not governed thereby, the law of the State of New York. Notwithstanding the foregoing, no Issuing Bank shall be responsible to Borrower for, and each Issuing Bank’s rights and remedies against Borrower shall not be impaired by, any action or inaction of such Issuing Bank required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the law or any order of a jurisdiction where such Issuing Bank or the beneficiary is located, the practice stated in the ISP, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade – International Financial Services Association (BAFT-
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IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
(i)Letter of Credit Fees.
(i)Borrower shall pay to Administrative Agent for the account of each Issuing Bank and participating Lender, a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit applicable to such Issuing Bank or participating Lender, as applicable, equal to the Applicable Margin for LIBO RateTerm SOFR Loans times the daily maximum aggregate amount available to be drawn under such Letter of Credit times the Issuing Bank’s or Lender’s, as applicable, Pro Rata Share of such Letter of Credit.
(ii)Borrower agrees to pay each Issuing Bank that issues a Letter of Credit a letter of credit fronting fee (the “Fronting Fee”) in an amount equal to 0.15% per annum of the daily maximum aggregate amount available to be drawn under such Letter of Credit issued by such Issuing Bank.
(iii)For purposes of computing the daily maximum aggregate amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.4 (Letter of Credit Amounts). Letter of Credit Fees and Fronting Fees shall be (i) due and payable on each Quarterly Payment Date (commencing with the first such date to occur after the issuance of such Letter of Credit), on the Letter of Credit Expiration Date and thereafter on demand (to the extent remaining unpaid) and (ii) computed on a quarterly basis in arrears.
(j)Documentary and Processing Charges Payable to Applicable Issuing Bank. Borrower shall pay directly to the applicable Issuing Bank, for its own account, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such Issuing Bank in connection with Letters of Credit issued by such Issuing Bank as from time to time in effect. Such customary fees and standard costs and charges, if any, are due and payable on demand and are nonrefundable.
(k)Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(l)Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of a Subsidiary or for the account of a Subsidiary, Borrower shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all drawings under such Letter of Credit. Borrower hereby acknowledges that the issuance of Letters of Credit in support of any obligations of Subsidiaries inures to the benefit of Borrower and such Subsidiaries, and that Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
(m)Resignation as Issuing Bank. Any Issuing Bank may, upon sixty (60) days’ notice to Borrower and Administrative Agent, resign as Issuing Bank. In the event of any such resignation as Issuing Bank, Borrower (or, if Borrower fails to make such
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appointment in thirty (30) days, Administrative Agent) shall be entitled to appoint a Person who is an Eligible Assignee with the Required Ratings (or whose guarantor, as contemplated by the definition of “Required Ratings,” has the Required Ratings) and reasonably satisfactory to Administrative Agent as a successor Issuing Bank hereunder. If any Issuing Bank resigns as Issuing Bank, it shall retain all the rights, powers, privileges and duties of an Issuing Bank hereunder with respect to all Letters of Credit that it issued, including Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank and all L/C Obligations with respect thereto. Upon the appointment of a successor Issuing Bank, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank, (ii) the successor Issuing Bank shall issue letters of credit in substitution for the applicable Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the applicable Issuing Bank to effectively assume the obligations of such Issuing Bank with respect to such Letters of Credit and (iii) the resigning Issuing Bank shall assign its Letter of Credit Issuance Commitment to issue Letters of Credit and Loans, as applicable, to such successor Issuing Bank.
(n)Replacement of Issuing Banks.
(i)If at any time an Issuing Bank (or its guarantor, as contemplated by the definition of “Required Ratings”) ceases to have the Required Ratings, then such Issuing Bank shall promptly, and in any event within two (2) Business Days after such cessation, notify Borrower thereof and Borrower may, upon thirty (30) days’ prior written notice, in each case, to such Issuing Bank and Administrative Agent, (A) (x) elect to replace such Issuing Bank in its capacity as an Issuing Bank with a Person selected by Borrower and with the Required Ratings (or whose guarantor, as contemplated by the definition of “Required Ratings,” has the Required Ratings) so long as such Person is an Eligible Assignee and is reasonably satisfactory to Administrative Agent and (y) cause such Issuing Bank to assign its Letter of Credit Issuance Commitment to issue Letters of Credit and its Loans to the successor Issuing Bank or (B) cause such Issuing Bank to assign its Letter of Credit Issuance Commitment to issue Letters of Credit and its Loans, as applicable, to another or additional Issuing Bank selected by Borrower and with the Required Ratings (or whose guarantor, as contemplated by the definition of “Required Ratings,” has the Required Ratings), so long as such Person is an Eligible Assignee and is reasonably satisfactory to Administrative Agent; and
(ii)Borrower shall notify Administrative Agent of any such replacement of an Issuing Bank pursuant to Section 2.2(n)(i) above. At the time any such replacement shall become effective, Borrower shall have (A) paid all unpaid fees and Unreimbursed Amounts accrued for the account of the replaced Issuing Bank pursuant to Section 2.9 (Fees) and (B) effected the cancellation and return to the replaced Issuing Bank of its Letters of Credit outstanding at such time. From and after the effective date of any such replacement, (1) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (2) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall
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require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights, powers, privileges and duties of such Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement but shall not be required to issue additional Letters of Credit.
2.3Pro Rata Shares; Availability of Funds.
(a)Pro Rata Shares.
(i)(A) Loans made pursuant to Section 2.1 (Loans) shall be made by Lenders simultaneously and proportionately such that after giving effect to such Loans, the Outstanding Amount of each Lender’s Loans and L/C Obligations shall equal their Pro Rata Shares of the aggregate Commitments, and (B) all Letters of Credit shall be issued on a non-ratable basis by Issuing Banks with a Fronting Limit to the extent provided in Section 2.2(b) (Fronting).
(ii)[Reserved].
(iii)No Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan in respect of which such other Lender has a Commitment requested hereunder nor shall any Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan in respect of which such other Lender has a Commitment requested hereunder.
(b)Availability of Funds. Unless Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to Borrower a corresponding amount on such Credit Date (any such amount made available by Administrative Agent to Borrower, the “Corresponding Amount”). If such Corresponding Amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such Corresponding Amount on demand from such Lender, together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Base Rate. In the event that Administrative Agent does not make available to Borrower a requested amount on the applicable Credit Date until such time as all applicable Lenders have made payment to Administrative Agent, Administrative Agent shall deem any payment by or on behalf of a Lender hereunder that is not made in immediately available funds prior to the time period specified herein and such delay causes Administrative Agent’s failure to fund to Borrower in accordance with its Funding Notice, a non-conforming payment and such Lender shall not receive interest hereunder with respect to the requested amount of such Lender’s Loans for the period commencing with the time specified in this Agreement for
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receipt of payment by Borrower through and including the time of Borrower’s receipt of the requested amount. If such Lender does not pay such Corresponding Amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Borrower and Borrower shall immediately pay such Corresponding Amount to Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Loans. Nothing in this Section 2.3(b) shall be deemed to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that Borrower may have against any Lender as a result of any default by such Lender hereunder.
2.4Use of Proceeds. Letters of Credit and the proceeds of Loans shall be available and applied, respectively, for general corporate purposes of Borrower and its Subsidiaries.
2.5Evidence of Debt; Register; Lenders’ Books and Records; Notes.
(a)Lenders’ Evidence of Debt. Each Lender and Issuing Bank shall maintain on its internal records an account or accounts evidencing the Obligations of Borrower to such Lender or Issuing Bank, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Borrower, absent manifest error; provided that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s or Issuing Banks’ Commitment or Borrower’s Obligations in respect of any applicable Loans; and provided further that, in the event of any inconsistency between the Register and any Lender’s or Issuing Bank’s records, the recordations in the Register shall govern.
(b)Register. Administrative Agent (or its agent or sub-agent appointed by it) shall maintain at its Principal Office a register for the recordation of the names and addresses of all Lenders and Issuing Banks; the Commitments and Loans of each Lender and Issuing Bank; and principal amounts (and stated interest) of the Loans owing to each Lender or Issuing Bank pursuant to the terms hereof from time to time (the “Register”). The Register shall be available for inspection by Borrower or any Lender or Issuing Bank (with respect to (i) any entry relating to such Lender’s or Issuing Bank’s Loans or L/C Obligations or (ii) the identity of the other Lenders and Issuing Banks (but not any information with respect to such other Lenders’ or Issuing Bank’s Loans or L/C Obligations)) at any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record, or shall cause to be recorded, in the Register the Commitments and the Loans in accordance with the provisions of Section 9.6 (Successors and Assigns; Participations), and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on Borrower, each Lender and each Issuing Bank, absent manifest error; provided that failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s or Issuing Bank’s Commitment or Borrower’s Obligations in respect of any Loan. Borrower hereby designates Administrative Agent to serve as Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section
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2.5(b), and Borrower hereby agrees that, to the extent Administrative Agent serves in such capacity, Administrative Agent and its officers, directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees” under Section 9.3(a) (Indemnity).
(c)Notes. If so requested by any Lender or Issuing Bank by written notice to Borrower (with a copy to Administrative Agent) at least two (2) Business Days prior to the Closing Date, or at any time thereafter, Borrower shall execute and deliver to such Lender or Issuing Bank (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender or Issuing Bank pursuant to Section 9.6 (Successors and Assigns; Participations)) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after receipt by Borrower of such notice) a Note or Notes to evidence such Lender’s or such or Issuing Bank’s Loan, as the case may be.
2.6Interest on Loans.
(a)Except as otherwise set forth herein (without duplication of amounts payable in connection with Section 2.6(f) (Interest on Loans)), each Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise), and thereof as follows:
(i)if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or
(ii)if a LIBO RateTerm SOFR Loan, at the Adjusted LIBO RateTerm SOFR plus the Applicable Margin.
(b)The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any LIBO RateTerm SOFR Loan, shall be selected by Borrower and notified to Administrative Agent and the Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be.
(c)In connection with LIBO RateTerm SOFR Loans there shall be no more than six (6) Interest Periods outstanding at any time. In the event Borrower fails to specify between a Base Rate Loan or a LIBO RateTerm SOFR Loan in the applicable Funding Notice or Conversion/Continuation Notice, such Loan (if not then outstanding) will be made as (or if outstanding as a Base Rate Loan will remain as) a Base Rate Loan, or if outstanding as a LIBO RateTerm SOFR Loan, will be automatically converted into a Base Rate Loan on the last day of the then-current Interest Period for such Loan. In the event Borrower fails to specify an Interest Period for any LIBO RateTerm SOFR Loan in the applicable Funding Notice or Conversion/Continuation Notice, Borrower shall be deemed to have selected an Interest Period of one (1) month. As soon as practicable after 12:00 p.m. (New York City time) on each Interest Rateon each Term SOFR Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the LIBO RateTerm SOFR Loans for which an interest rate is then
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being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Borrower and each Lender.
(d)Interest payable pursuant to this Section 2.6 shall be computed (i) in the case of Base Rate Loans on the basis of a 365 or 366 day year, as the case may be, and (ii) in the case of LIBO RateTerm SOFR Loans, on the basis of a 360 day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a LIBO RateTerm SOFR Loan, the date of conversion of such LIBO RateTerm SOFR Loan to such Base Rate Loan shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a LIBO RateTerm SOFR Loan, the date of conversion of such Base Rate Loan to such LIBO RateTerm SOFR Loan, shall be excluded; provided that, if a Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on that Loan.
(e)Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date with respect to interest accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in arrears at maturity of the Loans, including final maturity of the Loans; provided, however, that with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment Date.
(f)Without duplication of any amounts payable under Section 2.6(a) (Interest on Loans), Borrower agrees to pay to each Issuing Bank, with respect to drawings honored under any Letter of Credit, interest on the amount paid by such Issuing Bank in respect of each such honored drawing from the date such drawing is honored to (but excluding) the date such amount is reimbursed by or on behalf of Borrower at a rate equal to (i) for the period from the date such drawing is honored to (but excluding) the date that is one (1) Business Day immediately following the date on which such drawing is honored, the rate of interest otherwise payable hereunder with respect to Base Rate Loans, and (ii) thereafter, a rate which is two percent (2%) per annum in excess of the rate of interest otherwise payable hereunder with respect to Base Rate Loans.
(g)Interest payable pursuant to Section 2.6(f) (Interest on Loans) shall be computed on the basis of a 365/366 day year for the actual number of days elapsed in the period during which it accrues, and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full.
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2.7Conversion/Continuation.
(a)Subject to Section 2.15 (Making or Maintaining LIBO RateTerm SOFR Loans) and so long as no Default or Event of Default shall have occurred and then be continuing:
(i)Borrower shall have the option to convert at any time all or any part of any Loans, equal to $2,000,000 and integral multiples of $1,000,000 in excess of that amount, from one Type of Loan to another Type of Loan; provided that a LIBO RateTerm SOFR Loan may only be converted on a date other than the date of expiration of the Interest Period applicable to such LIBO RateTerm SOFR Loan if Borrower shall pay all amounts due under Section 2.15 (Making or Maintaining LIBOTerm SOFR Loans) in connection with any such conversion; or
(ii)in the case of LIBO RateTerm SOFR Loans, Borrower shall have the option upon the expiration of any Interest Period applicable to any LIBO RateTerm SOFR Loan, to continue all or any portion of such Loan equal to $2,000,000 and integral multiples of $1,000,000 in excess of that amount as a LIBO RateTerm SOFR Loan.
(b)Subject to Section 3.3 (Notices), Borrower shall deliver a Conversion/Continuation Notice to Administrative Agent no later than 12:00 p.m. (New York City time) at least one (1) Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three (3) Business Days in advance of the proposed Conversion/Continuation Date (in the case of a conversion to, or a continuation of, a LIBO RateTerm SOFR Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any LIBO RateTerm SOFR Loans shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to effect a conversion or continuation in accordance therewith. If on any day a Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.
2.8Default Interest. If the principal amount of, any interest on or any fees in respect of the Loans or the Letters of Credit shall not be paid when due, such overdue amount shall bear interest (including post-petition interest in any proceeding under Debtor Relief Laws) payable on demand at a rate that is two percent (2%) per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is two percent (2%) per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided that, in the case of LIBO RateTerm SOFR Loans, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective such LIBO RateTerm SOFR Loans shall thereupon become Base Rate Loans and such overdue amounts shall thereafter bear interest payable upon demand at a rate which is two percent (2%) per annum in excess of the interest rate otherwise payable hereunder for Base Rate
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Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.8 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent, any Lender or any Issuing Bank.
2.9Fees. In addition to certain fees described in Sections 2.2(i) and 2.2(j) (Letters of Credit):
(a)From and after the Closing Date, Borrower agrees to pay to Lenders or Issuing Banks, as applicable, commitment fees equal to an amount equal to the Commitment Fee Rate multiplied by the average of the daily Aggregate Availability (collectively, “Commitment Fees”).
(b)All Commitment Fees shall be paid to Administrative Agent at its Principal Office and upon receipt, Administrative Agent shall promptly distribute to each applicable Lender or Issuing Bank its Pro Rata Share thereof.
(c)All Commitment Fees shall be calculated on the basis of a 360 day year and the actual number of days elapsed and shall be payable quarterly in arrears on the last Business Day of March, June, September and December of each year during the Availability Period, commencing on the first such date to occur after the Closing Date, and on the Commitment Termination Date.
(d)In addition to any of the foregoing fees, Borrower agrees to pay to Agents and Administrative Agent for the account of Lenders and Issuing Banks such other fees in the amounts and at the times separately agreed upon (including pursuant to the Fee Letters).
2.10Voluntary Prepayments/Commitment Reductions.
(a)Voluntary Prepayments.
(i)Any time and from time to time Borrower may, without premium or penalty, prepay Loans on any Business Day in whole or in part, in an aggregate minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of that amount; provided that, in any such case, such minimum amounts shall not apply to a prepayment of all outstanding Loans;
(ii)All such prepayments shall be made:
(A)upon not less than one (1) Business Day’s prior written or telephonic notice in the case of Base Rate Loans; and
(B)upon not less than three (3) Business Days’ prior written or telephonic notice in the case of LIBO RateTerm SOFR Loans;
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in each case given to Administrative Agent by 12:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed by delivery of written notice thereof to Administrative Agent (and Administrative Agent will promptly transmit such original notice by facsimile or telephone to each applicable Lender or Issuing Bank). Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein; provided that such prepayment obligation may be conditioned on the occurrence of any subsequent event (including a refinancing transaction) specified in such notice. Any such voluntary prepayment shall be applied as specified in Section 2.12(a) (Application of Voluntary Prepayments).
(b)Voluntary Commitment Reductions.
(i)Borrower may, upon not less than three (3) Business Days’ prior written or telephonic notice promptly confirmed by delivery of written notice thereof to Administrative Agent (which original written notice Administrative Agent will promptly transmit by facsimile or telephone to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Commitments in an amount up to the Aggregate Availability at the time of such proposed termination or reduction; provided that any such partial reduction of the Commitments shall be in an aggregate minimum amount of $2,000,000 and integral multiples of $1,000,000 in excess of that amount.
(ii)Borrower’s notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Commitments shall be effective on the date specified in Borrower’s notice and shall reduce the Commitments of each Lender and/or Issuing Bank proportionately to its Pro Rata Share thereof; provided that such termination or reduction may be conditioned on the occurrence of any subsequent event (including a refinancing transaction).
2.11Mandatory Prepayments.
(a)Net Debt Proceeds. No later than the third (3rd) Business Day following the date of receipt by Borrower of any Net Debt Proceeds, Borrower shall prepay Unreimbursed Amounts and Loans (and, as applicable, Cash Collateralize Letters of Credit) as set forth in Section 2.12(b) (Application of Mandatory Prepayments) in an aggregate amount equal to such Net Debt Proceeds.
(b)Changes of Control. No later than the third (3rd) Business Day following a Prepayment Change of Control, Borrower shall prepay all Unreimbursed Amounts and Loans (and, as applicable, Cash Collateralize Letters of Credit) as set forth in Section 2.12(b) (Application of Mandatory Prepayments); provided, that if the Loans are rated by at least one Ratings Agency (or, if the Loans are not rated by any Ratings Agencies, at least one Ratings Agency has assigned a rating to the corporate family of Borrower and its Subsidiaries), then such prepayments shall only be required if a Rating Decline shall have occurred during the applicable Rating Decline Period. Upon any prepayment
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pursuant to this Section 2.11(b), the Commitments shall be terminated and permanently reduced to zero.
(c)Prepayment Certificate. Concurrently with any prepayment of the Loans and/or reduction of the Commitments pursuant to this Section 2.11, Borrower shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds. In the event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of the Loans and/or permanent reduction of the Commitments in an amount equal to such excess, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such excess.
2.12Application of Prepayments.
(a)Application of Voluntary Prepayments. With respect to each prepayment made pursuant to Section 2.10(a) (Voluntary Prepayments), on the date specified in the notice of prepayment delivered pursuant to Section 2.10(a)(ii) (Voluntary Prepayments), such prepayment of the Loans shall be applied pro rata to:
(i)the principal of, and accrued but unpaid interest on, the Loans to be prepaid;
(ii)any additional amounts required to be paid pursuant to Section 2.15(c) (Compensation for Breakage or Non-Commencement of Interest Periods); and
(iii)any other Obligations due in connection with any prepayment under the Financing Documents.
(b)Application of Mandatory Prepayments. Any amount required to be paid pursuant to Section 2.11 (Mandatory Prepayments) shall be applied first, to prepay the Unreimbursed Amounts and Loans and second, to Cash Collateralize such L/C Obligations in an amount equal to the Minimum Collateral Amount. Any such prepayment of Unreimbursed Amounts and Loans shall be applied pro rata to:
(i)the principal of, and accrued but unpaid interest on, such Unreimbursed Amounts and Loans;
(ii)any additional amounts required to be paid pursuant to Section 2.15(c) (Compensation for Breakage or Non-Commencement of Interest Periods); and
(iii)any other Obligations due in connection with any prepayment under the Financing Documents.
(c)Application of Prepayments of Loans to Base Rate Loans and LIBO RateTerm SOFR Loans. Any prepayment of the Loans shall be applied first to Base Rate
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Loans to the full extent thereof, before application to LIBO RateTerm SOFR Loans, in each case in a manner which minimizes the amount of any payments required to be made by Borrower pursuant to Section 2.15(c) (Compensation for Breakage or Non-Commencement of Interest Periods).
2.13General Provisions Regarding Payments.
(a)All payments by Borrower of principal, interest, fees and other Obligations shall be made in immediately available funds, without reduction, defense, recoupment, setoff or counterclaim, free of any restriction or condition, and, except as otherwise required herein, delivered to Administrative Agent not later than 12:00 p.m. (New York City time) o