Delaware |
4924 |
47-1929160 | ||
(State or Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
☒ | Smaller reporting company | |||||
Emerging growth company |
* |
The following are additional registrants that are guaranteeing the securities registered hereby: |
Exact Name of Registrant Guarantor as Specified in its Charter(1) |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification Number | ||
Corpus Christi Liquefaction, LLC |
Delaware |
35-2445602 | ||
Cheniere Corpus Christi Pipeline, L.P. |
Delaware |
20-4711857 | ||
Corpus Christi Pipeline GP, LLC |
Delaware |
47-1936771 |
(1) |
The address, including zip code, and telephone number, including area code, of each additional registrant guarantor’s executive offices is 700 Milam Street, Suite 1900, Houston, Texas 77002, (713) 375-5000. |
• | We are offering to exchange up to $750,000,000 aggregate principal amount of registered 2.742% Senior Secured Notes due 2039 (CUSIP No. 16412X AL9) (the “New Notes”) for any and all of our $750,000,000 aggregate principal amount of unregistered 2.742% Senior Secured Notes due 2039 (CUSIP Nos. 16412X AK1 and U16327 AE5) (the “Old Notes” and together with the New Notes, the “notes”) that were issued on August 24, 2021. |
• | We will exchange all outstanding Old Notes that are validly tendered and not validly withdrawn prior to the expiration of the exchange offer for an equal principal amount of New Notes, as applicable. |
• | The terms of the New Notes will be substantially identical to those of the outstanding Old Notes, except that the New Notes will be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will not contain restrictions on transfer, registration rights or provisions for additional interest. |
• | You may withdraw tenders of Old Notes at any time prior to the expiration of the exchange offer. |
• | The exchange of Old Notes for New Notes will not be a taxable event for U.S. federal income tax purposes. |
• | We will not receive any cash proceeds from the exchange offer. |
• | The Old Notes are, and the New Notes will be, secured by first-priority liens on substantially all right, title and interest in or to substantially all of our assets and the assets of our current and any future guarantors along with certain other items listed under “Description of Senior Notes” (the “Collateral”). |
• | The Old Notes are, and the New Notes will be, guaranteed on a senior basis by all of our existing subsidiaries and certain of our future domestic subsidiaries (as described herein). |
• | There is no established trading market for the New Notes or the Old Notes. |
• | We do not intend to apply for listing of the New Notes on any national securities exchange or for quotation through any quotation system. |
ii | ||||
ii | ||||
ii | ||||
iv | ||||
1 | ||||
16 | ||||
38 | ||||
39 | ||||
53 | ||||
62 | ||||
65 | ||||
66 | ||||
67 | ||||
86 | ||||
96 | ||||
146 | ||||
162 | ||||
207 | ||||
214 | ||||
216 | ||||
217 | ||||
218 | ||||
218 | ||||
219 | ||||
275 | ||||
F-1 |
• | Bcf |
• | Bcf/d |
• | Bcfe |
• | Bcf/yr |
• | DOE |
• | Dth/d |
• | EPC |
• | FERC |
• | FOB |
• | FTA |
• | FTA countries |
• | GAAP |
• | Henry Hub |
• | IPM Agreement |
• | LIBOR |
• | LNG |
• | MMBtu |
• | MMBtu/d |
• | mtpa |
• | non-FTA countries |
• | SPA |
• | SOFR |
• | TBtu |
• | Tcf |
• | Train |
• | statements that we expect to commence or complete construction of our proposed LNG terminal, liquefaction facility, pipeline facility or other projects, or any expansions or portions thereof, by certain dates, or at all; |
• | statements regarding future levels of domestic and international natural gas production, supply or consumption or future levels of LNG imports into or exports from North America and other countries worldwide or purchases of natural gas, regardless of the source of such information, or the transportation or other infrastructure or demand for and prices related to natural gas, LNG or other hydrocarbon products; |
• | statements regarding any financing transactions or arrangements, or our ability to enter into such transactions; |
• | statements regarding our future sources of liquidity and cash requirements; |
• | statements relating to the construction of our Trains and pipeline, including statements concerning the engagement of any EPC contractor or other contractor and the anticipated terms and provisions of any agreement with any EPC or other contractor, and anticipated costs related thereto; |
• | statements regarding any SPA or other agreement to be entered into or performed substantially in the future, including any revenues anticipated to be received and the anticipated timing thereof, and statements regarding the amounts of total natural gas liquefaction or storage capacities that are, or may become, subject to contracts; |
• | statements regarding counterparties to our commercial contracts, construction contracts, and other contracts; |
• | statements regarding our planned development and construction of additional Trains and pipelines, including the financing of such Trains and pipelines; |
• | statements that our Trains, when completed, will have certain characteristics, including amounts of liquefaction capacities; |
• | statements regarding our business strategy, our strengths, our business and operation plans or any other plans, forecasts, projections, or objectives, including anticipated revenues, capital expenditures, maintenance and operating costs and cash flows, any or all of which are subject to change; |
• | statements regarding legislative, governmental, regulatory, administrative or other public body actions, approvals, requirements, permits, applications, filings, investigations, proceedings or decisions; |
• | statements regarding the COVID-19 pandemic and its impact on our business and operating results, including any customers not taking delivery of LNG cargoes, the ongoing creditworthiness of our contractual counterparties, any disruptions in our operations or construction of our Trains and the health and safety of Cheniere’s employees, and on our customers, the global economy and the demand for LNG; and |
• | any other statements that relate to non-historical or future information. |
FERC Approved Volume |
DOE Approved Volume |
|||||||||||||||
(in Bcf/yr) |
(in mtpa) |
(in Bcf/yr) |
(in mtpa) |
|||||||||||||
FTA countries |
875.16 | 17 | 875.16 | 17 | ||||||||||||
Non-FTA countries |
875.16 | 17 | 767 | (1) | 15 |
(1) | The authorization for an additional 108.16 Bcf/yr (approximately 2 mtpa) of natural gas is currently pending. |
* | This SPA is structurally linked to the SPA between Cheniere Marketing International LLP and PetroChina International Company Limited. See “Description of Material Project Agreements—LNG Sale and Purchase Agreements—Stage 2—DES-Linked SPA.” |
• | safely, efficiently and reliably operating and maintaining our assets; |
• | procuring natural gas and pipeline transport capacity to our facility; |
• | commencing commercial delivery for our long-term SPA customers, of which we have initiated for nine of ten third party long-term SPA customers as of December 31, 2021; |
• | maximizing the production of LNG to serve our customers and generating steady and stable revenues and operating cash flows; |
• | further expanding and/or optimizing the Liquefaction Project by leveraging existing infrastructure; |
• | maintaining a prudent and cost-effective capital structure; and |
• | strategically identifying actionable environmental solutions. |
Old Notes |
2.742% Senior Secured Notes due 2039, which were issued on August 24, 2021. |
New Notes |
2.742% Senior Secured Notes due 2039. The terms of the New Notes are substantially identical to the terms of the outstanding Old Notes, except that the transfer restrictions, registration rights and provisions for additional interest relating to the Old Notes will not apply to the New Notes. |
Exchange Offer |
We are offering to exchange up to $750 million aggregate principal amount of our New Notes that have been registered under the Securities Act for an equal amount of our outstanding Old Notes that have not been registered under the Securities Act to satisfy our obligations under the registration rights agreement. |
The New Notes will evidence the same debt as the Old Notes for which they are being exchanged and will be issued under, and be entitled to the benefits of, the same indenture that governs the Old Notes. Holders of the Old Notes do not have any appraisal or dissenters’ rights in connection with the exchange offer. Because the New Notes will be registered, the New Notes will not be subject to transfer restrictions, and holders of Old Notes that have tendered and had their Old Notes accepted in the exchange offer will have no registration rights. The New Notes will have a CUSIP number different from that of any Old Notes that remain outstanding after the completion of the exchange offer. |
Expiration Date |
The exchange offer will expire at 5:00 p.m., New York City time, on , 2022, unless we decide to extend the date. |
Conditions to the Exchange Offer |
The exchange offer is subject to customary conditions, which we may waive. Please read “The Exchange Offer—Conditions to the Exchange Offer” for more information regarding the conditions to the exchange offer. |
Procedures for Tendering Old Notes |
You must do one of the following on or prior to the expiration of the exchange offer to participate in the exchange offer: |
• | tender your Old Notes by sending the certificates for your Old Notes, in proper form for transfer, a properly completed and duly executed letter of transmittal, with any required signature guarantees, and all other documents required by the letter of transmittal, to The Bank of New York Mellon, as registrar and |
exchange agent, at the address listed under the caption “The Exchange Offer—Exchange Agent”; or |
• | tender your Old Notes by using the book-entry transfer procedures described below and transmitting a properly completed and duly executed letter of transmittal, with any required signature guarantees, or an agent’s message instead of the letter of transmittal, to the exchange agent. In order for a book-entry transfer to constitute a valid tender of your Old Notes in the exchange offer, The Bank of New York Mellon, as registrar and exchange agent, must receive a confirmation of book-entry transfer of your Old Notes into the exchange agent’s account at The Depository Trust Company (“DTC”) prior to the expiration of the exchange offer. For more information regarding the use of book-entry transfer procedures, including a description of the required agent’s message, please read the discussion under the caption “The Exchange Offer—Procedures for Tendering—Book-entry Transfer.” |
Withdrawal; Non-Acceptance |
You may withdraw any Old Notes tendered in the exchange offer at any time prior to 5:00 p.m., New York City time, on , 2022 by following the procedures described in this prospectus and the related letter of transmittal. If we decide for any reason not to accept any Old Notes tendered for exchange, the Old Notes will be returned to the registered holder at our expense promptly after the expiration or termination of the exchange offer. In the case of Old Notes tendered by book-entry transfer in to the exchange agent’s account at DTC, any withdrawn or unaccepted Old Notes will be credited to the tendering holder’s account at DTC. For further information regarding the withdrawal of tendered Old Notes, please read “The Exchange Offer—Withdrawal Rights.” |
U.S. Federal Income Tax Consequences |
The exchange of New Notes for Old Notes in the exchange offer will not be a taxable event for U.S. federal income tax purposes. Please read the discussion under the caption “Material United States Federal Income Tax Consequences” for more information regarding the tax consequences to you of the exchange offer. |
Use of Proceeds |
The issuance of the New Notes will not provide us with any new proceeds. We are making this exchange offer solely to satisfy our obligations under the registration rights agreement. |
Fees and Expenses |
We will pay all of our expenses incident to the exchange offer. |
Exchange Agent |
We have appointed The Bank of New York Mellon as exchange agent for the exchange offer. For the address, telephone number and fax number of the exchange agent, please read “The Exchange Offer—Exchange Agent.” |
Resales of New Notes |
Based on interpretations by the staff of the SEC, as set forth in no-action letters issued to third parties that are not related to us, we |
believe that the New Notes you receive in the exchange offer may be offered for resale, resold or otherwise transferred by you without compliance with the registration and prospectus delivery provisions of the Securities Act so long as: |
• | the New Notes are being acquired in the ordinary course of business; |
• | you are not participating, do not intend to participate, and have no arrangement or understanding with any person to participate in the distribution of the New Notes issued to you in the exchange offer; |
• | you are not our affiliate or an affiliate of any of our subsidiary guarantors; and |
• | you are not a broker-dealer tendering Old Notes acquired directly from us for your account. |
The SEC has not considered this exchange offer in the context of a no-action letter, and we cannot assure you that the SEC would make similar determinations with respect to this exchange offer. If any of these conditions are not satisfied, or if our belief is not accurate, and you transfer any New Notes issued to you in the exchange offer without delivering a resale prospectus meeting the requirements of the Securities Act or without an exemption from registration of your New Notes from those requirements, you may incur liability under the Securities Act. We will not assume, nor will we indemnify you against, any such liability. Each broker-dealer that receives New Notes for its own account in exchange for Old Notes, where the Old Notes were acquired by such broker-dealer as a result of market-making or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. Please read “Plan of Distribution.” |
Please read “The Exchange Offer—Resales of New Notes” for more information regarding resales of the New Notes. |
Consequences of Not Exchanging Your Old Notes |
If you do not exchange your Old Notes in this exchange offer, you will no longer be able to require us to register your Old Notes under the Securities Act, except in the limited circumstances provided under the registration rights agreement. In addition, you will not be able to resell, offer to resell or otherwise transfer your Old Notes unless we have registered the Old Notes under the Securities Act, or unless you resell, offer to resell or otherwise transfer them under an exemption from the registration requirements of, or in a transaction not subject to, the Securities Act. |
For information regarding the consequences of not tendering your Old Notes and our obligation to file a registration statement, please read “The Exchange Offer—Consequences of Failure to Exchange Old Notes” and “Description of Senior Notes.” |
Issuer |
Cheniere Corpus Christi Holdings, LLC. |
Notes Offered |
$750,000,000 aggregate principal amount of 2.742% Senior Secured Notes due 2039. |
Maturity Date |
The New Notes mature on December 31, 2039. |
Interest |
Interest on the New Notes will accrue at a rate equal to 2.742% per annum, computed on the basis of a 360-day year comprising twelve 30-day months. |
Interest Payment Dates |
We will pay interest on the New Notes semi-annually, in cash in arrears, on June 30 and December 31 of each year, commencing on June 30, 2022. |
Guarantees |
The New Notes will be guaranteed by all of our existing Domestic Subsidiaries and certain of our future Domestic Subsidiaries. As of the date of this prospectus, the Guarantors consist of each of CCL, CCP and CCP GP. See “Description of Senior Notes—Guarantees of the Notes.” |
Security and Collateral |
The New Notes will be secured by a first priority security interest in substantially all of our and the Guarantors’ assets. The Collateral securing the New Notes includes: |
• | substantially all of our assets and the assets of our existing and any future Guarantors (including real and personal property whether owned or leased on the closing date of this exchange offer or thereafter acquired); |
• | a pledge by Holdco of all ownership interests in CCH; |
• | all contracts, agreements and documents, including the Material Project Agreements, hedging arrangements and insurance policies, and all of our rights thereunder; |
• | certain Accounts; |
• | cash flow and other revenues; and |
• | other real and personal property which is subject, from time to time, to the Security Interests or liens granted by the Security Documents. |
Ranking |
The New Notes will constitute direct and unconditional senior secured obligations, and will rank pari passu |
The New Notes will be effectively senior to all of our future junior lien obligations and future unsecured senior indebtedness, to the extent of the value of the Collateral securing the notes. |
The New Notes will be effectively junior to any of our or our Subsidiaries’ secured indebtedness that is secured by liens on assets other than the Collateral securing the notes, to the extent of the value of such assets. |
The New Notes will be structurally subordinated to any future indebtedness of our non-Guarantor Subsidiaries. |
As of December 31, 2021, we had $589 million of available commitments, $361 million aggregate amount of issued letters of credit and $250 million of loans outstanding under the $1.2 billion working capital facility (the “Working Capital Facility”). |
As of December 31, 2021, we had approximately $10.4 billion of total debt outstanding (before unamortized discount and debt issuance costs). As of December 31, 2021, we had approximately $1.7 billion of outstanding borrowings under our Term Loan Facility, $1.25 billion of outstanding 7.000% Senior Secured Notes due 2024 (the “2024 Senior Notes”), $1.5 billion of outstanding 5.875% Senior Secured Notes due 2025 (the “2025 Senior Notes”), $1.5 billion of 5.125% Senior Secured Notes due 2027 (the “2027 Senior Notes”), $1.5 billion of outstanding 3.700% Senior Secured Notes due 2029 (the “2029 Senior Notes”), $750 million of outstanding Old Notes (the Old Notes, together with the 2024 Senior Notes, the 2025 Senior Notes, the 2027 Senior Notes and the 2029 Senior Notes, the “144A Senior Notes”), $727.0 million of outstanding 4.80% Senior Secured Notes due 2039 (the “4.80% Senior Notes”), $475.0 million of outstanding 3.925% Senior Secured Notes due 2039 (the “3.925% Senior Notes”) and $768.7 million of outstanding 3.52% Senior Secured Notes due 2039 (the “3.52% Senior Notes” and, together with the 144A Senior Notes, the 4.80% Senior Notes and the 3.925% Senior Notes, the “Outstanding Senior Notes”). |
Optional Redemption |
At any time from time to time prior to July 4, 2039, we may redeem the New Notes, in whole or in part, at a redemption price equal to the Make-Whole Price as defined under the caption “Description of Senior Notes—Optional Redemption,” plus accrued and unpaid |
interest to the redemption date. We also may, at any time on or after July 4, 2039, redeem the New Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the New Notes to be redeemed, plus accrued and unpaid interest on the New Notes redeemed to the redemption date. See “Description of Senior Notes—Optional Redemption.” |
Change of Control |
Upon the occurrence of a Change of Control, we must commence, within 30 days, and subsequently consummate an offer to purchase all notes then outstanding at a purchase price in cash equal to 101% of their aggregate principal amount, plus accrued and unpaid interest on the notes repurchased to the date of repurchase. After the Project Completion Date, a Change of Control shall not be deemed to have occurred if we receive rating reaffirmations from two rating agencies (or one rating agency, if only one rating agency currently rates the New Notes) reaffirming the then-current rating of the New Notes as of the date of such change of control. We may not be able to repurchase notes upon a Change of Control in certain circumstances. See “Risk Factors —Risks Relating to the Exchange Offer and the New Notes—We may not be able to repurchase notes upon a Change of Control or upon the exercise of the holders’ options to require repurchase of notes if certain prepayment triggering events occur, and the occurrence of certain of these events and our repurchase of notes as a result thereof could result in an event of default under the indenture or other agreements governing our indebtedness.” |
Additional Offers to Purchase |
If we sell assets under certain circumstances and do not use the proceeds for certain specified purposes, if we receive insurance proceeds following a Catastrophic Casualty Event and do not use the proceeds for certain specified purposes, if we receive Performance Liquidated Damages payments under certain circumstances and do not use the proceeds for certain specified purposes, if we fail to maintain our Qualifying LNG SPAs in accordance with the terms of the indenture, or if certain of our Required Export Authorizations are Impaired, we must offer to repurchase the New Notes and may be required to make a repayment of other Senior Debt in amounts specified in the indenture and in our agreements related to our other Senior Debt. In each case, under the indenture, the purchase price of the New Notes will be equal to 100% of the principal amount of the New Notes repurchased, plus accrued and unpaid interest on the New Notes to, but excluding, the applicable repurchase date. See “Description of Senior Notes—Repurchase at the Option of Noteholders—Asset Sales,” “—Events of Loss,” “—Performance Liquidated Damages,” and “—LNG SPA Mandatory Offer.” We may not be able to repurchase the New Notes upon an Asset Sale, Event of Loss, receipt of Performance Liquidated Damages or an Indenture LNG SPA Prepayment Event in certain circumstances. See “Risk Factors—Risks Relating to the Exchange Offer and the New Notes—We may not be able to repurchase notes upon a Change of Control or upon the exercise of the holders’ options to require repurchase of |
notes if certain prepayment triggering events occur, and the occurrence of certain of these events and our repurchase of notes as a result thereof could result in an event of default under the indenture or other agreements governing our indebtedness.” |
Pre-Completion Account Flows |
Disbursements of Loans will be deposited into the Construction Account subject to certain rules described in our CSAA (as defined herein). See “Description of Security Documents —Common Security and Account Agreement—Pre-Completion Cash Flows.” |
Unless paid directly towards the purpose for which they are incurred, disbursements of Senior Debt in connection with an issuance of Senior Notes under any Indenture will be made into a Senior Note Disbursement Account(s), subject to certain rules described in our CSAA. See “Description of Security Documents—Common Security and Account Agreement—Pre-Completion Cash Flows.” |
Prior to the Project Completion Date, the Construction Account will be funded with any funds withdrawn and transferred from the Equity Proceeds Account and proceeds from our Senior Debt, and may from time to time be funded with any Business Interruption Insurance Proceeds and Delay Liquidated Damages payments received by us. Amounts in the Construction Account will be used to pay Project Costs in accordance with the construction budget and schedule and any Operation and Maintenance Expenses. |
Prior to the Project Completion Date, any revenues will be deposited into the Equity Proceeds Account and may be transferred to the Construction Account. |
Prior to the Project Completion Date, we must fund the Operating Account from the Construction Account, and must use the Operating Account to pay Operation and Maintenance Expenses that are due in a manner consistent with our obligations under our Common Terms Agreement and our Finance Documents, then in effect. |
Post-Completion Account Flows |
After the completion of Train One, Train Two and Train Three, revenues received by us will be applied in the following manner: |
• | first |
• | second |
• | third pari passu |
scheduled payments of hedge termination value and gas hedge termination value to be paid by us pursuant to Permitted Hedging Instruments secured on a pari passu |
• | fourth |
• | fifth |
• | sixth |
• | seventh |
• | eighth |
• | ninth |
Covenants |
The indenture governing the New Notes will contain covenants that, among other things and subject to certain exceptions and/or conditions, limit our ability and the ability of our Restricted Subsidiaries to: |
• | make Restricted Payments; |
• | incur additional Indebtedness or issue preferred stock; |
• | assume, incur, permit or suffer to exist any Lien on any asset of CCH or any Restricted Subsidiary; |
• | create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to pay dividends, pay indebtedness owed to CCH or any of its Restricted Subsidiaries, make loans or advances to CCH or any of its Restricted Subsidiaries, or sell, lease or transfer any properties or assets to CCH or any of its Restricted Subsidiaries; |
• | dissolve, liquidate, consolidate, merge, sell or lease all or substantially all of the assets or properties of CCH and its Restricted Subsidiaries taken as a whole in one or more related transactions or permit any Guarantor to dissolve, liquidate, consolidate, merge, sell or lease all or substantially all of its assets and properties; |
• | enter into certain transactions or agreements with or for the benefit of any Affiliate of CCH or any of its Restricted Subsidiaries; |
• | amend or modify Material Project Agreements; |
• | enter into any lifting and balancing arrangement or Sharing Arrangement with an External Train Entity; and |
• | amend or modify any Qualifying LNG SPA. |
These covenants are subject to a number of important limitations and exceptions that are described in this prospectus under the caption “Description of Senior Notes—Covenants Applicable to the Notes.” |
No Exchange Listing |
We do not intend to list the New Notes on any national securities exchange or to arrange for quotation on any automated dealer quotation systems. There can be no assurance that an active trading market will develop for the New Notes. If an active trading market does not develop, the market price and liquidity of the New Notes may be adversely affected. |
Risk Factors |
You should refer to the section entitled “Risk Factors” beginning on page 16 of this prospectus for a discussion of factors you should carefully consider before deciding to participate in the exchange offer. |
• | Our existing level of cash resources and significant debt |
• | Our ability to generate cash |
• | Our efforts to manage commodity and financial risks through derivative instruments |
• | Catastrophic weather events or other disasters |
• | Disruptions to the third party supply of natural gas to our pipeline and facilities |
• | Inability to purchase or receive physical delivery of sufficient natural gas to satisfy our delivery obligations under the SPAs |
• | Significant construction and operating hazards and uninsured risks |
• | Cyclical or other changes in the demand for and price of LNG and natural gas |
• | Failure of exported LNG to be a competitive source of energy for international markets |
• | Competition based upon the international market price for LNG |
• | A cyber attack involving our business, operational control systems or related infrastructure, or that of third party pipelines which supply the Liquefaction Facilities |
• | Outbreaks of infectious diseases, such as the outbreak of COVID-19, at our facilities |
• | Our dependency on Cheniere, including employees of Cheniere and its subsidiaries, for key personnel, and the unavailability of skilled workers or our failure to attract and retain qualified personnel |
• | Our contractual and commercial relationships, and conflicts of interest, with Cheniere and its affiliates, including CMI UK |
• | Failure to obtain and maintain approvals and permits from governmental and regulatory agencies |
• | Subjectivity to FERC regulation |
• | Existing and future environmental and similar laws and governmental regulations |
• | Pipeline safety and compliance programs and repairs |
• | Failure to properly tender your Old Notes |
• | Our ability to incur substantially more indebtedness in the future |
• | Our substantial indebtedness |
• | Requirement of significant amounts of cash to service our indebtedness |
• | Additional financing required to finance the construction of any additional Trains |
• | Restrictions in the indenture governing the New Notes |
• | Our ability to repurchase notes upon a Change of Control or upon the exercise of the holders’ options to require repurchase of notes |
• | Federal and state statutes could require note holders to return payments received from us |
• | Your ability to resell the New Notes |
• | Sufficient collateral to pay all or any amounts due on the New Notes |
• | Potential liens on the real property comprising the Trains and the Corpus Christi Pipeline that are senior to the security interests securing the New Notes |
• | Certain real property rights that will not be mortgage prior to the issuance of the New Notes |
• | Title insurance policy that has only been obtained on the real property rights of the Liquefaction Facilities and not for the Corpus Christi Pipeline |
• | surveys obtained in connection with the real property rights underlying the Liquefaction Facilities and the Corpus Christi Pipeline may be inaccurate or not comprehensive |
• | Limitation of remedies available to the Security Trustee |
• | Termination of certain real property rights held by us constituting collateral for the New Notes |
• | CSAA provisions that may limit the remedies that could be exercised in respect of an event of default |
• | Remedies available to the holders of the notes and the Security Trustee in bankruptcy may be limited |
• | Failure to perfect security interest in your collateral and other issues generally associated with the realization of security interest in your collateral |
• | Casualty risks of the collateral |
• | Representations and warranties, covenants or events of default contained in the Common Terms Agreement that are not contained in the indenture governing the New Notes |
• | Any future pledge of collateral might be avoidable in bankruptcy |
• | An existing or future subsidiary’s guarantee of the New Notes may not be sufficient |
• | The New Notes will be structurally subordinated in right of payment to the indebtedness and other liabilities of any subsidiaries that do not guarantee the New Notes |
• | Your right to receive payments under the New Notes will be effectively subordinated |
• | The ratings of the New Notes may be lowered or withdrawn |
• | Changes in our credit rating |
• | competitive liquefaction capacity in North America; |
• | insufficient or oversupply of natural gas liquefaction or receiving capacity worldwide; |
• | insufficient LNG tanker capacity; |
• | weather conditions, including temperature volatility resulting from climate change, and extreme weather events may lead to unexpected distortion in the balance of international LNG supply and demand. For example, LNG procurement in Japan rose dramatically in 2011 and several years thereafter following a tsunami that caused extensive destruction to its nuclear power infrastructure; |
• | reduced demand and lower prices for natural gas; |
• | increased natural gas production deliverable by pipelines, which could suppress demand for LNG; |
• | decreased oil and natural gas exploration activities which may decrease the production of natural gas, including as a result of any potential ban on production of natural gas through hydraulic fracturing; |
• | cost improvements that allow competitors to offer LNG regasification services or provide natural gas liquefaction capabilities at reduced prices; |
• | changes in supplies of, and prices for, alternative energy sources such as coal, oil, nuclear, hydroelectric, wind and solar energy, which may reduce the demand for natural gas; |
• | changes in regulatory, tax or other governmental policies regarding imported or exported LNG, natural gas or alternative energy sources, which may reduce the demand for imported or exported LNG and/or natural gas; |
• | political conditions in natural gas producing regions; |
• | sudden decreases in demand for LNG as a result of natural disasters or public health crises, including the occurrence of a pandemic, and other catastrophic events; |
• | adverse relative demand for LNG compared to other markets, which may decrease LNG imports into or exports from North America; and |
• | cyclical trends in general business and economic conditions that cause changes in the demand for natural gas. |
• | increases in worldwide LNG production capacity and availability of LNG for market supply; |
• | increases in demand for LNG but at levels below those required to maintain current price equilibrium with respect to supply; |
• | increases in the cost to supply natural gas feedstock to our Liquefaction Project; |
• | decreases in the cost of competing sources of natural gas or alternate fuels such as coal, heavy fuel oil and diesel; |
• | decreases in the price of non-U.S. LNG, including decreases in price as a result of contracts indexed to lower oil prices; |
• | increases in capacity and utilization of nuclear power and related facilities; and |
• | displacement of LNG by pipeline natural gas or alternate fuels in locations where access to these energy sources is not currently available. |
• | perform ongoing assessments of pipeline safety and compliance; |
• | identify and characterize applicable threats to pipeline segments that could impact a high consequence area; |
• | improve data collection, integration and analysis; |
• | repair and remediate the pipeline as necessary; and |
• | implement preventative and mitigating actions. |
• | making it more difficult for us to satisfy our obligations with respect to the New Notes; |
• | limiting our ability to obtain additional financing to fund our capital expenditures, working capital, acquisitions, debt service requirements or liquidity needs for general business or other purposes; |
• | limiting our ability to replace the indebtedness under our Term Loan Facility with indebtedness with a longer maturity; |
• | limiting our ability to use operating cash flow in other areas of our business because we must dedicate a substantial portion of these funds to service debt, including indebtedness that we may incur in the future; |
• | limiting our ability to compete with other companies that are not as highly leveraged; |
• | limiting our ability to react to changing market conditions in our industry and in our customers’ industries and to economic downturns; |
• | limiting our flexibility in planning for, or reacting to, changes in our business and future business opportunities; |
• | making us more vulnerable than a less leveraged company to a downturn in our business or in the economy; and |
• | resulting in a material adverse effect on our business, operating results and financial condition if we are unable to service our indebtedness or obtain additional financing, as needed. |
• | incur additional indebtedness; |
• | provide certain guarantees; |
• | create liens on our assets; |
• | engage in certain asset sales; |
• | engage in mergers or acquisitions and to make equity investments; and |
• | engage in certain transactions with our affiliates. |
• | received less than reasonably equivalent value or fair consideration for the incurrence of the indebtedness; and |
• | were insolvent or rendered insolvent by reason of the incurrence of the indebtedness; or |
• | were engaged, or about to engage, in a business or transaction for which our remaining assets constituted unreasonably small capital; or |
• | intended to incur, or believed that we would incur, debts beyond our ability to pay such debts as they matured. |
• | changes in the overall market for debt securities; |
• | changes in our financial performance or prospects; |
• | the prospects for companies in our industry generally; |
• | the number of holders of the New Notes; |
• | the interest of securities dealers in making a market for the New Notes; and |
• | prevailing interest rates. |
• | how long payments under the New Notes could be delayed following commencement of a bankruptcy case; |
• | whether or when the Security Trustee could repossess or dispose of the collateral; or |
• | whether or to what extent holders of the New Notes would be compensated for any delay in payment or loss of value of the collateral through the requirement of “adequate protection.” |
• | Overview |
• | Overview of Significant Events |
• | Market Environment |
• | Results of Operations |
• | Liquidity and Capital Resources |
• | Summary of Critical Accounting Estimates |
• | Recent Accounting Standards |
• | As of February 18, 2022, approximately 450 cumulative LNG cargoes totaling over 30 million tonnes of LNG have been produced, loaded and exported from the Liquefaction Project. |
• | In August 2021, we issued an aggregate principal amount of $750 million of the Old Notes. The proceeds of the Old Notes, net of related fees, costs and expenses, were used to prepay a portion of the principal amount outstanding under our amended and restated term loan credit facility (the “CCH Credit Facility”). |
• | On March 26, 2021, substantial completion of Train Three of the Liquefaction Project was achieved. |
• | CCL entered into an SPA with Engie SA in June 2021, which was subsequently amended in March 2022, for approximately 0.9 million tonnes per year of LNG for a term of approximately 20 years. |
(1) | The year ended December 31, 2021 excludes four TBtu that were loaded at our affiliate’s facility. |
Year Ended December 31, |
||||||||||||
(in millions, except volumes) |
2021 |
2020 |
Variance ($) |
|||||||||
LNG revenues |
$ | 3,907 | $ | 2,046 | $ | 1,861 | ||||||
LNG revenues—affiliate |
1,887 | 483 | 1,404 | |||||||||
|
|
|
|
|
|
|||||||
Total revenues |
$ | 5,794 | $ | 2,529 | $ | 3,265 | ||||||
|
|
|
|
|
|
|||||||
LNG volumes recognized as revenues (in TBtu) (1) |
738 | 410 | 328 |
(1) | Excludes volume associated with cargoes for which customers notified us that they would not take delivery. During the year ended December 31, 2021, includes four TBtu that were loaded at our affiliate’s facility. |
Year Ended December 31, |
||||||||||||
(in millions) |
2021 |
2020 |
Variance ($) |
|||||||||
Cost of sales |
$ | 4,326 | $ | 901 | $ | 3,425 | ||||||
Cost of sales—affiliate |
50 | 30 | 20 | |||||||||
Cost of sales—related party |
146 | 114 | 32 | |||||||||
Operating and maintenance expense |
423 | 347 | 76 | |||||||||
Operating and maintenance expense—affiliate |
106 | 90 | 16 | |||||||||
Operating and maintenance expense—related party |
9 | 6 | 3 | |||||||||
General and administrative expense |
7 | 7 | — | |||||||||
General and administrative expense—affiliate |
28 | 20 | 8 | |||||||||
Depreciation and amortization expense |
420 | 342 | 78 | |||||||||
Impairment expense and loss on disposal of assets |
2 | 1 | 1 | |||||||||
|
|
|
|
|
|
|||||||
Total operating costs and expenses |
$ | 5,517 | $ | 1,858 | $ | 3,659 | ||||||
|
|
|
|
|
|
Year Ended December 31, |
||||||||||||
(in millions) |
2021 |
2020 |
Variance ($) |
|||||||||
Interest expense, net of capitalized interest |
$ | 447 | $ | 365 | $ | 82 | ||||||
Loss on modification or extinguishment of debt |
9 | 9 | — | |||||||||
Interest rate derivative loss, net |
1 | 233 | (232 | ) | ||||||||
Other income (expense), net |
— | 1 | (1 | ) | ||||||||
|
|
|
|
|
|
|||||||
Total other expense |
$ | 457 | $ | 608 | $ | (151 | ) | |||||
|
|
|
|
|
|
December 31, 2021 |
||||
Restricted cash and cash equivalents designated for the Liquefaction Project |
$ | 44 | ||
Available commitments under the $1.2 billion CCH Working Capital Facility (“CCH Working Capital Facility”) (1) |
589 | |||
|
|
|||
Total available liquidity |
$ | 633 | ||
|
|
(1) | Available commitments represent total commitments less loans outstanding and letters of credit issued under each of the CCH Working Capital Facility as of December 31, 2021. See Note 10—Debt of our Notes to Consolidated Financial Statements included elsewhere in this prospectus for additional information on the CCH Working Capital Facility and other debt instruments. |
Estimated Revenues Under Executed Contracts by Period (1) |
||||||||||||||||
2022 |
2023 - 2026 |
Thereafter |
Total |
|||||||||||||
LNG revenues (fixed fees) (2) |
$ | 2.0 | $ | 7.5 | $ | 23.2 | $ | 32.7 | ||||||||
LNG revenues (variable fees) (2) (3) |
2.6 | 8.4 | 29.7 | 40.7 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 4.6 | $ | 15.9 | $ | 52.9 | $ | 73.4 | ||||||||
|
|
|
|
|
|
|
|
(1) | Excludes contracts for which conditions precedent have not been met. Agreements in force as of December 31, 2021 that have terms dependent on project milestone dates are based on the estimated dates as of December 31, 2021. The timing of revenue recognition under GAAP may not align with cash receipts, although we do not consider the timing difference to be material. The estimates above reflect management’s assumptions and currently known market conditions and other factors as of December 31, 2021. Estimates are not guarantees of future performance and actual results may differ materially as a result of a variety of factors described in this prospectus. |
(2) | LNG revenues (including $1.1 billion and $1.7 billion of fixed fees and variable fees, respectively, from affiliates) exclude revenues from contracts with original expected durations of one year or less. Fixed fees are fees that are due to us regardless of whether a customer exercises their contractual right to not take delivery of an LNG cargo under the contract. Variable fees are receivable only in connection with LNG cargoes that are delivered. |
(3) | LNG revenues (variable fees, including affiliate) reflect the assumption that customers elect to take delivery of all cargoes made available under the contract. LNG revenues (variable fees, including affiliate) are based on estimated forward prices and basis spreads as of December 31, 2021. The pricing structure of our SPA arrangements with our customers incorporates a variable fee per MMBtu of LNG generally equal to 115% of Henry Hub, which is paid upon delivery, thus limiting our net exposure to future increases in natural gas prices. Certain of our contracts contain additional variable consideration based on the outcome of contingent events and the movement of various indexes. We have not included such variable consideration to the extent the consideration is considered constrained due to the uncertainty of ultimate pricing and receipt. |
Estimated Payments Due Under Executed Contracts by Period (1) |
||||||||||||||||
2022 |
2023 - 2026 |
Thereafter |
Total |
|||||||||||||
Purchase obligations (2): |
||||||||||||||||
Natural gas supply agreements (3) |
$ | 3.3 | $ | 5.1 | $ | 1.3 | $ | 9.7 | ||||||||
Natural gas transportation and storage service agreements (4) |
0.2 | 0.8 | 2.3 | 3.3 | ||||||||||||
Other purchase obligations (5) |
— | 0.1 | 0.5 | 0.6 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 3.5 | $ | 6.0 | $ | 4.1 | $ | 13.6 | ||||||||
|
|
|
|
|
|
|
|
(1) | Excludes contracts for which conditions precedent have not been met. Agreements in force as of December 31, 2021 that have terms dependent on project milestone dates are based on the estimated dates as of December 31, 2021. The estimates above reflect management’s assumptions and currently known market conditions and other factors as of December 31, 2021. Estimates are not guarantees of future performance and actual results may differ materially as a result of a variety of factors described in this prospectus. |
(2) | Purchase obligations consist of agreements to purchase goods or services that are enforceable and legally binding that specify fixed or minimum quantities to be purchased. As project milestones and other conditions precedent are achieved, our obligations are expected to increase accordingly. We include contracts for which we have an early termination option if the option is not currently expected to be exercised. |
(3) | Pricing of natural gas supply agreements is based on estimated forward prices and basis spreads as of December 31, 2021. Natural gas supply agreements include payments under IPM agreements, which are based on global gas market prices less fixed liquefaction fees and certain costs incurred by us. |
(4) | Includes $0.1 billion of purchase obligations to related parties under the natural gas transportation and storage service agreements. |
(5) | Includes $0.5 billion of purchase obligations to affiliates under services agreements. |
Estimated Payments Due Under Executed Contracts by Period (1) |
||||||||||||||||
2022 |
2023 - 2026 |
Thereafter |
Total |
|||||||||||||
Debt (2) |
$ | 0.4 | $ | 4.4 | $ | 5.6 | $ | 10.4 | ||||||||
Interest payments (2) |
0.5 | 1.3 | 1.0 | 2.8 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 0.9 | $ | 5.7 | $ | 6.6 | $ | 13.2 | ||||||||
|
|
|
|
|
|
|
|
(1) | The estimates above reflect management’s assumptions and currently known market conditions and other factors as of December 31, 2021. Estimates are not guarantees of future performance and actual results may differ materially as a result of a variety of factors described in this prospectus. |
(2) | Debt and interest payments are based on the total debt balance, scheduled contractual maturities and fixed or estimated forward interest rates in effect at December 31, 2021. Debt and interest payments do not contemplate repurchases, repayments and retirements that we expect to make prior to contractual maturity. See further discussion in Note 10—Debt of our Notes to Consolidated Financial Statements included elsewhere in this prospectus. |
Year Ended December 31, |
||||||||
2021 |
2020 |
|||||||
Net cash provided by operating activities |
$ | 1,424 | $ | 396 | ||||
Net cash used in investing activities |
(240 | ) | (796 | ) | ||||
Net cash provided by (used in) financing activities |
(1,210 | ) | 390 | |||||
|
|
|
|
|||||
Net decrease in restricted cash and cash equivalents |
$ | (26 | ) | $ | (10 | ) | ||
|
|
|
|
Year Ended December 31, |
||||||||
2021 |
2020 |
|||||||
Senior Secured Notes due 2039 |
$ | 750 | $ | 769 | ||||
CCH Working Capital Facility |
400 | 281 | ||||||
|
|
|
|
|||||
Total issuances |
$ | 1,150 | $ | 1,050 | ||||
|
|
|
|
Year Ended December 31, |
||||||||
2021 |
2020 |
|||||||
CCH Credit Facility |
$ | (898 | ) | $ | (656 | ) | ||
CCH Working Capital Facility |
(290 | ) | (141 | ) | ||||
|
|
|
|
|||||
Total repayments |
$ | (1,188 | ) | $ | (797 | ) | ||
|
|
|
|
Year Ended December 31, |
||||||||
2021 |
2020 |
|||||||
Change in unrealized gain (loss) relating to instruments still held at end of period |
$ | (1,276 | ) | $ | 28 |
December 31, 2021 |
December 31, 2020 |
|||||||||||||||
Fair Value |
Change in Fair Value |
Fair Value |
Change in Fair Value |
|||||||||||||
Liquefaction Supply Derivatives |
$ | (1,212 | ) | $ | 186 | $ | 11 | $ | 77 |
December 31, 2021 |
December 31, 2020 |
|||||||||||||||
Fair Value |
Change in Fair Value |
Fair Value |
Change in Fair Value |
|||||||||||||
CCH Interest Rate Derivatives |
$ | (40 | ) | $ | — | $ | (140 | ) | $ | 1 |
• | safely, efficiently and reliably operating and maintaining our assets; |
• | procuring natural gas and pipeline transport capacity to our facility; |
• | commencing commercial delivery for our long-term SPA customers, of which we have initiated for nine of ten third party long-term SPA customers as of December 31, 2021; |
• | maximizing the production of LNG to serve our customers and generating steady and stable revenues and operating cash flows; |
• | further expanding and/or optimizing the Liquefaction Project by leveraging existing infrastructure; |
• | maintaining a prudent and cost-effective capital structure; and |
• | strategically identifying actionable environmental solutions. |
FERC Approved Volume |
DOE Approved Volume |
|||||||||||||||
(in Bcf/yr) |
(in mtpa) |
(in Bcf/yr) |
(in mtpa) |
|||||||||||||
FTA countries |
875.16 | 17 | 875.16 | 17 | ||||||||||||
Non-FTA countries |
875.16 | 17 | 767 (1 | ) | 15 |
(1) | The authorization for an additional 108.16 Bcf/yr (approximately 2 mtpa) of natural gas is currently pending. |
Percentage of Total Revenues from External Customers |
||||||||||||
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Endesa Generación, S.A. (which subsequently assigned its SPA to Endesa S.A.) and Endesa S.A. |
21 | % | 31 | % | 57 | % | ||||||
PT Pertamina (Persero) |
16 | % | 16 | % | 23 | % | ||||||
Naturgy LNG GOM, Limited |
15 | % | 14 | % | — |
• | rates and charges, and terms and conditions for natural gas transportation, storage and related services; |
• | the certification and construction of new facilities and modification of existing facilities; |
• | the extension and abandonment of services and facilities; |
• | the administration of accounting and financial reporting regulations, including the maintenance of accounts and records; |
• | the acquisition and disposition of facilities; |
• | the initiation and discontinuation of services; and |
• | various other matters. |
Name |
Age |
Position | ||||
Aaron Stephenson |
66 | Manager | ||||
Zach Davis |
37 | Manager, President and Chief Financial Officer | ||||
Michelle A. Dreyer |
50 | Independent Manager |
Name |
Age |
Position | ||||
Jack A. Fusco |
59 | Chief Executive Officer | ||||
Zach Davis |
37 | President and Chief Financial Officer |
Name |
Age |
Position | ||||
Aaron Stephenson |
66 | President | ||||
Zach Davis |
37 | Chief Financial Officer |
Name |
Age |
Position | ||||
Zach Davis |
37 | President and Chief Financial Officer |
Name |
Fees Earned or Paid in Cash |
Stock Awards |
Option Awards |
Non-Equity Incentive Plan Compensation |
Nonqualified Deferred Compensation Earnings |
All Other Compensation |
Total |
|||||||||||||||||||||
Aaron Stephenson |
$ | — | $ | — | $ | — | $ | — | $ | — | $ | — | $ | — | ||||||||||||||
Zach Davis |
— | — | — | — | — | — | — | |||||||||||||||||||||
Michelle A. Dreyer |
2,500 | — | — | — | — | — | 2,500 |
• | each person who beneficially owns more than 5% of our limited liability company interests; |
• | each of our managers; |
• | each of our executive officers; and |
• | all of our managers and executive officers as a group. |
Name of Beneficial Owner |
Limited Liability Company Interests Beneficially Owned |
Percentage of Limited Liability Company Interests Beneficially Owned |
||||||
Holdco |
100 | % | 100 | % | ||||
Aaron Stephenson |
— | — | ||||||
Zach Davis |
— | — | ||||||
Michelle A. Dreyer |
— | — | ||||||
All executive officers and managers as a group (3 persons) |
— | — |
• | Tranche 1: $2,801,737,202.53, which has been fully drawn |
• | Tranche 2: $3,335,674,522.94, which has been fully drawn |
(a) | any prepayments of the Loans required to be made with respect to certain Insurance Proceeds and Condemnation Proceeds in accordance with the CSAA; |
(b) | upon receipt of any Performance Liquidated Damages in excess of $10 million, except to the extent such amounts are applied to restoration, repairs or improvements of the Project Facilities or to repay or reimburse providers of Equity Funding, which Equity Funding was used for restoration, repairs or improvements of the Project Facilities; |
(c) | the amount of all proceeds received from any Escrowed Amounts (as defined in the Applicable EPC Contract) after the Project Completion Date, unless we are permitted to make a Restricted Payment under the Common Terms Agreement on the next succeeding Quarterly Payment Date; |
(d) | in the event of a Change of Control occurring after the end of the Term Loan Availability Period, to the extent required in connection with a mandatory prepayment offer that we are obligated to make in connection therewith; |
(e) | upon occurrence of an event triggering an LNG SPA Mandatory Prepayment; |
(f) | to the extent of any Net Cash Proceeds received from sales of assets (other than asset sales permitted under the Common Terms Agreement) that are (i) in excess of $50 million individually or $200 million in the aggregate over the term of the Common Terms Agreement and (ii) not used to purchase replacement assets within 180 days following receipt thereof (or 270 days if a commitment to purchase replacement assets is entered into within 180 days following the receipt of such proceeds); and |
(g) | subject to certain exceptions, due to a failure to meet the conditions to make a Restricted Payment pursuant to the Common Terms Agreement for four consecutive quarters. |
(1) | change the limited nature of our business in any material respect; or |
(2) | engage in retail sales of natural gas so as to become subject to regulation as a gas utility under the Texas Utilities Code. |
(a) | Senior Debt, including any reborrowing of any Working Capital Debt in accordance with its terms; |
(b) | Indebtedness expressly contemplated by a Finance Document or a Material Project Agreement; |
(c) | Subordinated Debt; |
(d) | Intercompany indebtedness between or among the Obligors, all of which shall be Subordinated Debt; |
(e) | Indebtedness incurred under Permitted Hedging Instruments which are not Senior Debt; |
(f) | Indebtedness in respect of any bankers’ acceptances, letters of credit, warehouse receipts or similar facilities incurred in the ordinary course of business; |
(g) | purchase money Indebtedness and capital leases or guarantees of the same, in a principal amount not exceeding $50 million in the aggregate to finance the purchase or lease of assets for the Development other than those financed with the proceeds of Senior Debt; provided |
(h) | any other unsecured Indebtedness incurred after the Project Completion Date in an aggregate amount outstanding at any one time not to exceed $500 million for general corporate purposes; |
(i) | Indebtedness arising from honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, or cash management services in the ordinary course of business; |
(j) | Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; |
(k) | contingent liabilities incurred in the ordinary course of business; |
(l) | Indebtedness consisting of certain bonds and similar obligations incurred in the ordinary course of business; |
(m) | trade or other similar Indebtedness incurred in the ordinary course of business, which is (i) not more than 90 days past due, or (ii) being contested in good faith and by appropriate proceedings; |
(n) | Indebtedness consisting of the financing of insurance premiums in customary amounts in the ordinary course of business; and |
(o) | other Indebtedness incurred with the consent of the Intercreditor Agent acting on the instructions of the Requisite Intercreditor Parties. |
(a) | initiate or consent to (without the consent of the Intercreditor Agent in consultation with the Independent Engineer) any change order that: |
(i) | increases the contract price of an Applicable EPC Contract. However, CCL may, without the consent of the Intercreditor Agent, enter into change orders or make payments of any claim under an Applicable EPC Contract if (A) the amount of such change orders or payments is less than $25 million individually or less than $300 million in the aggregate and (B) the Intercreditor Agent receives a certificate stating that after giving effect to such change order or payment, all Date of First Commercial Delivery deadlines shall be met and such change order or payment will not result in Project Costs exceeding the funds then available or reasonably expected to be available to pay such Project Costs. If the aggregate of all change orders or payments exceeds $300 million, CCL may enter into such change orders or make such payments if the amount of any such change order or payment is less than $2 million, and if the Intercreditor Agent receives a certificate from CCL (to which the Independent Engineer reasonably concurs as to certain matters set forth in the Common Terms Agreement). In addition, if an EPC Force Majeure or an |
EPC Change in Law or, in the case of EPC Contract (T3), Adverse Weather Conditions, prompt Bechtel to request a change order to which it is entitled by the terms of the Applicable EPC Contract, CCL may authorize such change without the consent of the Intercreditor Agent if the amount of such change is within the remaining contingency set forth in the construction budget and schedule, or if the amount exceeds such contingency, CCL has an additional source of funds for such excess amount in addition to any Equity Funding. CCL may also enter into change orders that exceed $25 million individually or $300 million in the aggregate, subject to certain conditions, including, but not limited to, either (A) receipt and deposit into the Construction Account of any Equity Funding that is additional to Equity Funding otherwise committed to pay for Project Costs in the then-applicable construction budget and schedule and otherwise that is sufficient to pay the maximum amount that may become due and payable pursuant to such change order or (B) the amount and subject matter is a utilization of an unallocated contingency in the construction budget and schedule, and, in the case of either (A) or (B), receipt by the Intercreditor Agent of a certificate from CCL (to which the Independent Engineer reasonably concurs as to certain matters set forth in the Common Terms Agreement) and the Intercreditor Agent has not objected to such change order within 15 days of receipt of the proposed change order; |
(ii) | extends the “guaranteed substantial completion date” for any Train of the Development or could reasonably be expected to have a material adverse effect on the likelihood of achieving Substantial Completion by such date; provided |
(iii) | except as a result of a permitted buydown of the performance guarantees pursuant to Section 11.4 of an Applicable EPC Contract or a change order to which Bechtel is entitled for an EPC Change in Law (and provided that the Independent Engineer concurs to CCL’s consent to such change order), modifies the performance guarantees or any other performance guarantee of Bechtel or the criteria or procedures for the conduct or measuring the results of Performance Tests; |
(iv) | adjusts the payment schedules (other than as a result of a permitted change order) or the amount of or timing for payment of the schedule bonus under an Applicable EPC Contract or otherwise provides for any additional bonus to be paid to Bechtel; |
(v) | causes any material component or material design feature or aspect of the Project Facilities to deviate in any fundamental manner from the description thereof set forth in an Applicable EPC Contract (other than as a result of a permitted change order); |
(vi) | except as a result of a change order to which Bechtel is entitled for an EPC Change in Law or event of EPC Force Majeure or, in the case of EPC Contract (T3), Adverse Weather Conditions (and provided that the Independent Engineer concurs to CCL’s consent to such change order), diminishes or otherwise materially alters Bechtel’s liquidated damages obligations under the Applicable EPC Contract; |
(vii) | except as a result of a change order to which Bechtel is entitled for an EPC Change in Law or event of EPC Force Majeure or, in the case of EPC Contract (T3), Adverse Weather Conditions (and provided that the Independent Engineer concurs to CCL’s consent to such change order), waives or alters the provisions under an Applicable EPC Contract relating to default, termination or suspension or the waiver by CCL of any event that with the giving of notice or the lapse of time or both would entitle CCH to terminate the Applicable EPC Contract; |
(viii) | except as a result of a change order to which Bechtel is entitled for an EPC Change in Law, adversely modifies or impairs the enforceability of any warranty for material items under an Applicable EPC Contract; |
(ix) | except as a result of a change order to which Bechtel is entitled for an EPC Change in Law (and provided that the Independent Engineer concurs to CCL’s consent to such change order), impairs the ability of the Project Facilities to satisfy the Performance Tests or the Lenders’ Reliability Tests; |
(x) | results in the revocation or adverse modification of any material Permit; or |
(xi) | causes the Project Facilities not to comply in all material respects with applicable law or regulations or an Obligor’s contractual obligations; |
(b) | collect on the letter of credit posted by Bechtel as required under an Applicable EPC Contract unless there are no future payments owed to Bechtel against which we may offset the amounts due to CCL; |
(c) | approve any plans under Articles 11.1B or 11.1C of an Applicable EPC Contract without the concurrence of the Independent Engineer; or |
(d) | except following notice to the Independent Engineer of its proposed action (to which the Independent Engineer reasonably concurred): |
(i) | initiate or consent to any (A) change order that directly or indirectly specifies the capital spare parts to be delivered to the Site by Bechtel pursuant to an Applicable EPC Contract taking into account any other capital spare parts that we intend to acquire directly, or (B) material change to a two-year inventory of such capital spare parts; or |
(ii) | consent to any initial integration plan proposed by Bechtel under an Applicable EPC Contract. |
(a) | no Loan Facility Event of Default or Unmatured Loan Facility Event of Default has occurred and is Continuing or could occur as a result of such Restricted Payment; |
(b) |
(i) | the Historical DSCR for the last measurement period (calculated for this purpose by excluding any amount contributed during such measurement period under the cure right described in “Description of Other Senior Debt—Common Terms Agreement—Certain Other Covenants—Historical DSCR”) and |
(ii) | the Fixed Projected DSCR for the 12-month period beginning on the Quarterly Payment Date on or immediately prior to the proposed date of the Restricted Payment are, in each case, at least 1.25:1; |
(c) | the Senior Debt Service Reserve Account is funded (with cash or with Acceptable Debt Service Reserve LCs) with the then-applicable Reserve Amount, including the applicable debt service reserve requirements (if any) under any Senior Debt Instrument governing Additional Senior Debt; |
(d) | the Project Completion Date has occurred; |
(e) | no event triggering an LNG SPA Mandatory Prepayment has occurred and is Continuing in respect of which the prepayment and cancellation required by the occurrence of such event in accordance with the Common Terms Agreement has not been made in full; |
(f) | the Intercreditor Agent must, two business days prior to the proposed date of the Restricted Payment, receive a certificate as to satisfaction of items (a)-(e) above; |
(g) | each Senior Creditor Group Representative must have received a certificate as to clause (b) above setting forth the calculation of Historical DSCR and Fixed Projected DSCR in clause (b) above; and |
(h) | as long as any Loans under the Term Loan Facility remain outstanding, the Restricted Payment must be made within 25 business days following the most recent Quarterly Payment Date. |
(x) | if each of the conditions described above other than those in clauses (b), (d), (g) and (h) above have been satisfied; provided |
(i) | Substantial Completion has occurred under the EPC Contract (T1/T2) with respect to Train One and Train Two; |
(ii) | the Fixed Projected DSCR for the 12-month period beginning on the First Repayment Date is at least 1.25:1; |
(iii) | we have delivered to the Intercreditor Agent a certification from the Independent Engineer confirming that the Obligors have sufficient cash on deposit in the Construction Account (after taking into account the proposed Restricted Payment) to fund all remaining Project Costs required to achieve the Project Completion Date by the Date Certain; and |
(iv) | we include in the certificate delivered to the Intercreditor Agent pursuant to clause (f) above, a confirmation that each of these additional conditions have been satisfied and setting forth the calculation of the Fixed Projected DSCR in clause (x)(ii) above; and |
(y) | solely from Non-Base Case Cash Flows (“Non-Base Case Restricted Payments”) if each of the conditions described above other than those in clauses (b), (d), (g) and (h) above have been satisfied; provided |
(i) | Substantial Completion has occurred under the EPC Contract (T1/T2) with respect to Train One and Train Two; |
(ii) | the aggregate amount of all Non-Base Case Restricted Payments does not exceed the amount of Non-Base Case Cash Flows received prior to the date of such Non-Base Case Restricted Payment less any such Non-Base Case Cash Flows that are attributable to Other Approved LNG SPAs included in the certification made pursuant to sub-clause (y)(iv) below; |
(iii) | the Fixed Projected DSCR for the 12-month period beginning on the First Repayment Date is at least 1.25:1; and |
(iv) | we include in the certificate delivered to the Intercreditor Agent pursuant to clause (f) above, a confirmation that each of these additional conditions have been satisfied and setting forth the calculation of the Fixed Projected DSCR and confirming that we have Facility Debt Commitments, Equity Funding commitments (including under the amended and restated equity contribution agreement with Cheniere (the “CEI Equity Contribution Agreement”)), funds in the Construction Account and projected contracted Cash Flow from the fixed component under each of the Qualifying LNG SPAs and Other Approved LNG SPAs under the updated Base Case Forecast sufficient to achieve the Project Completion Date by the Date Certain. |
(i) | conduct front-end engineering, development and design work using Equity Funding not otherwise committed to other expenditures for the Development; |
(ii) | prepare and submit applications for Permits related to any Expansion; and |
(iii) | undertake pre-construction activities and early works activities associated with an Expansion; provided |
(1) | default in the payment when due of principal amounts due under the Finance Documents; provided |
(2) | default in the payment of interest or any Senior Debt Obligations due under the Finance Document which default continues unremedied for three Business Days after those amounts become due; |
(3) | any representation or warranty made by any Obligor in the Common Terms Agreement (other than certain representations that are covered by other Events of Default) or in any certificate, financial statement, or other document furnished by any Obligor pursuant to the Common Terms Agreement, or any representation or warranty made by Holdco in the Holdco Pledge Agreement, is false when made and if such falsity is capable of being corrected or cured, is not corrected or cured within 60 days after the earlier of (A) the applicable Obligor becoming aware of such falsity and (B) notice from the Intercreditor Agent to CCH, and such falsity or the adverse effects therefrom could reasonably be expected to have a Material Adverse Effect; |
(4) | an Obligor fails to maintain its existence or breaches the merger and liquidation covenant; |
(5) | breach of the Historical DSCR or breach of the covenant not to amend organizational documents, in each case, that is not cured within 10 Business Days; |
(6) | (A) any Obligor (x) materially breaches certain covenants regarding use of proceeds; changes to its legal name/structure; Material Project Agreements; limitations on Indebtedness; limitation on guarantees; limitation on Liens; or limitation on Investments and Loans; or (y) breaches certain covenants regarding taxes; compliance with applicable laws, including anti-terrorism laws, money laundering laws or laws of the Office of Foreign Assets Control of the U.S. Department of Treasury; Material Project Agreements; or sale of project property; or (B) Holdco materially breaches any covenant contained in the Holdco Pledge Agreement, and, in each case, such default continues uncured for a 30-day period after the earlier of (i) we receive written notice of such default from the Intercreditor Agent and (ii) the applicable Obligor or Holdco, as applicable, becomes aware of such default; |
(7) | any Obligor (x) breaches certain covenants regarding project construction, maintenance of properties, books and records, nature of business, gas purchase and transportation contracts, and transactions with affiliates, or (y) materially breaches any other covenant under the Common Terms Agreement (other than covenants addressed in certain other events of default), and such default continues uncured for a 60-day period after the earlier of (i) the applicable Obligor becoming aware of such breach; and (ii) notice from the Intercreditor Agent to CCH, such cure period to be extended up to 90 days so long as the breach is subject to cure, such Obligor is diligently pursuing a cure and such additional cure period could not reasonably be expected to result in a Material Adverse Effect; |
(8) | a Bankruptcy with respect to an Obligor or Holdco has occurred, or prior to the Project Completion Date, a Bankruptcy with respect to Bechtel or Bechtel’s guarantor under the Applicable EPC Contract; |
(9) | prior to the Project Completion Date, any one or more of a judgment in excess of $200 million in the aggregate or a final judgment in excess of $120 million in the aggregate against an Obligor or Holdco (or against any other Person where an Obligor or Holdco is liable to satisfy such judgment), in each case net of insurance proceeds which are reasonably expected to be paid; or following the Project |
Completion Date, one or more final judgments in excess of $120 million in the aggregate (net of insurance proceeds which are reasonably expected to be paid), in each case, remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of 60 days after the date of entry of such judgment; |
(10) | any Finance Document (other than (x) a Direct Agreement in respect of any LNG SPA that is not a Required LNG SPA then in full force and effect (except for the PetroChina Direct Agreements) or (y) any Direct Agreement in the case where the occurrence of a Loan Facility Event of Default has been triggered by an event affecting the underlying Material Project Agreement or a Senior Debt prepayment remedy or other Loan Facility Event of Default is applicable under the Finance Documents) or any material provision of any Finance Document, (i) is expressly repudiated in writing by any party thereto (other than the Security Trustee, the Account Bank, the Intercreditor Agent or any Facility Lender), (ii) shall have been terminated (other than pursuant to the terms thereof following discharge in full of all obligations thereof or otherwise by agreement in writing of the parties thereto and not as a result of a Loan Facility Event of Default under the Common Terms Agreement) or (iii) is declared unenforceable in a final judgment of a court of competent jurisdiction against any party (other than the Security Trustee, the Account Bank, the Intercreditor Agent or any Facility Lender) and such unenforceability is not cured (subject to any applicable Reservations) within five Business Days following the date of entry of such judgment; |
(11) | any Material Project Agreement (other than an LNG SPA) or any material provision thereof: (i) is expressly repudiated in writing by any party, or (ii) is declared unenforceable in a final judgment of a court of competent jurisdiction against any party and such unenforceability is not cured (subject to any applicable Reservations) within 60 Business Days following the date of entry of such judgment if in either case, a Material Adverse Effect could reasonably be expected to result; |
(12) | default with respect to Indebtedness (other than Indebtedness secured by the Security Documents and Subordinated Debt) of any Obligor that exceeds a principal amount of $100 million and continued beyond any applicable grace period and the effect of which has been to cause the entire amount of such Indebtedness to become due and such Indebtedness remains unpaid or the acceleration of its stated maturity unrescinded; |
(13) | in respect of any Senior Notes outstanding, acceleration of such Senior Notes following an Indenture Event of Default; |
(14) | failure to achieve the Project Completion Date by the Date Certain; |
(15) | from and after the Initial Advance, any Permit required under the Common Terms Agreement related to CCH or the Development is Impaired and such Impairment could reasonably be expected to have a Material Adverse Effect unless (i) CCH provides a reasonable remediation plan within 30 Business Days following our Knowledge of the occurrence of such Impairment, (ii) CCH diligently pursues the implementation of such remediation plan and (iii) such Impairment is cured within 90 days of the occurrence thereof (or such longer period, if any, presented by any administrative, legal, regulatory or statutory time period applicable thereto but only as may be reasonably necessary to cure such Impairment or required by a Governmental Authority; provided |
(16) | prior to the end of the Term Loan Availability Period (including the final day thereof), Cheniere and its Affiliates (a) until one year after the Project Completion Date, fail to own, directly or indirectly in the aggregate, more than 50% of the ownership interests in CCH or control, directly or indirectly, voting rights of more than 50% of the votes of all classes in CCH or (b) more than one year after the Project Completion Date, fail to own, directly or indirectly in the aggregate, more than 25% of the ownership interests in CCH or control, directly or indirectly, voting rights of more than 25% of the votes of all classes in CCH; |
(17) | Cheniere fails to pay or cause to be paid Equity Funding as required under the CEI Equity Contribution Agreement for any reason, and such failure is not cured within 10 Business Days; and |
(18) | additional events of default in respect of (i) an Abandonment; (ii) destruction of the Project Facilities; (iii) an Event of Taking; (iv) invalid Security Interests; (v) environmental representations and warranties and covenants; (vi) certain ERISA events; and (vii) material default under an Applicable EPC Contract. |
• | you are acquiring the New Notes in the exchange offer in the ordinary course of your business; |
• | you do not have, and to your knowledge, no one receiving New Notes from you has, any arrangement or understanding with any person to participate in the distribution of the New Notes; |
• | you are not one of our or our subsidiary guarantors’ “affiliates,” as defined in Rule 405 of the Securities Act; |
• | you are not engaged in, and do not intend to engage in, a distribution of the New Notes; and |
• | if you are a broker-dealer that will receive New Notes for your own account in exchange for Old Notes acquired as a result of market-making or other trading activities, you may be a statutory underwriter and will deliver a prospectus in connection with any resale of the New Notes. |
Please | read “ Plan of Distribution |
• | will have been registered under the Securities Act; |
• | will not bear the restrictive legends restricting their transfer under the Securities Act; |
• | will not contain the registration rights contained in the Old Notes; and |
• | will not contain the liquidated damages provisions relating to the Old Notes. |
• | a properly completed and duly executed letter of transmittal, including all other documents required by the letter of transmittal; or |
• | if Old Notes are tendered in accordance with the book-entry procedures listed below, an agent’s message transmitted through DTC’s Automated Tender Offer Program, referred to as ATOP. |
• | deliver certificates, if any, for the Old Notes to the exchange agent at or before the expiration time; or |
• | deliver a timely confirmation of the book-entry transfer of the Old Notes into the exchange agent’s account at DTC, the book-entry transfer facility, along with the letter of transmittal or an agent’s message. |
• | by a registered holder of the Old Notes who has not completed the box entitled “ Special Issuance Instructions Special Delivery Instructions |
• | for the account of an “eligible institution.” |
• | a certificate for the Old Notes, or a timely book-entry confirmation of the Old Notes, into the exchange agent’s account at the book-entry transfer facility; |
• | a properly completed and duly executed letter of transmittal or an agent’s message; and |
• | all other required documents. |
• | specify the name of the person, referred to as the depositor, having tendered the Old Notes to be withdrawn; |
• | identify the Old Notes to be withdrawn, including certificate numbers and principal amount of the Old Notes; |
• | contain a statement that the holder is withdrawing its election to have the Old Notes exchanged; |
• | other than a notice transmitted through DTC’s ATOP system, be signed by the holder in the same manner as the original signature on the letter of transmittal by which the Old Notes were tendered, including any required signature guarantees, or be accompanied by documents of transfer to have the trustee with respect to the Old Notes register the transfer of the Old Notes in the name of the person withdrawing the tender; and |
• | specify the name in which the Old Notes are registered, if different from that of the depositor. |
• | there shall occur a change in the current interpretation by the staff of the SEC which permits the New Notes issued pursuant to the exchange offer in exchange for Old Notes to be offered for resale, resold and otherwise transferred by the holders (other than broker-dealers and any holder which is an affiliate) without compliance with the registration and prospectus delivery provisions of the Securities Act, provided |
• | any action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency or body seeking to enjoin, make illegal or delay completion of the exchange offer or otherwise relating to the exchange offer; |
• | any law, statute, rule or regulation shall have been adopted or enacted which would reasonably be expected to impair our ability to proceed with such exchange offer; |
• | a banking moratorium shall have been declared by United States federal or New York State authorities; |
• | trading on the New York Stock Exchange or generally in the United States over-the-counter |
• | an attack on the United States, an outbreak or escalation of hostilities or acts of terrorism involving the United States, or any declaration by the United States of a national emergency or war shall have occurred; |
• | a stop order shall have been issued by the SEC or any state securities authority suspending the effectiveness of the registration statement of which this prospectus is a part or proceedings shall have been initiated or, to our knowledge, threatened for that purpose or any governmental approval has not been obtained, which approval is deemed necessary for the consummation of the exchange offer; or |
• | any change, or any development involving a prospective change, in our business or financial affairs or any of our subsidiaries has occurred which is or may be adverse to us or we shall have become aware of facts that have or may have an adverse impact on the value of the Old Notes or the New Notes, which makes it inadvisable to proceed with the exchange offer, with the acceptance of Old Notes for exchange or with the exchange of Old Notes for New Notes. |
• | terminate the exchange offer and promptly return all tendered Old Notes to tendering holders; |
• | complete and/or extend the exchange offer and, subject to your withdrawal rights, retain all tendered Old Notes until the extended exchange offer expires; |
• | amend the terms of the exchange offer; or |
• | waive any unsatisfied condition and, subject to any requirement to extend the period of time during which the exchange offer is open, complete the exchange offer. |
• | the New Notes are acquired in the ordinary course of the holders’ business; |
• | the holders have no arrangement or understanding with any person to participate in the distribution of the New Notes; |
• | the holders are not “affiliates” of ours or of any of our subsidiary guarantors within the meaning of Rule 405 under the Securities Act; and |
• | the holders are not broker-dealers who purchased Old Notes directly from us for resale pursuant to Rule 144A or any other available exemption under the Securities Act. |
• | cannot rely on the applicable interpretations of the staff of the SEC mentioned above; |
• | will not be permitted or entitled to tender the Old Notes in the exchange offer; and |
• | must be identified as an underwriter in the prospectus and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. |
• | are general obligations of CCH; |
• | are secured on a first-priority basis, subject only to Permitted Liens, by security interests in all Collateral owned or at any time acquired by CCH and the Guarantors; |
• | are pari passu |
• | are senior in right of payment to any future Subordinated Debt of CCH; and |
• | are unconditionally guaranteed by the Guarantors. |
• | is a general obligation of the applicable Guarantor; |
• | is pari passu |
• | is senior in right of payment to any Subordinated Debt off that Guarantor. |
Payment Date |
Percentage of Original Principal Amount Payable |
|||
6/30/2027 |
3.227 | % | ||
12/31/2027 |
3.272 | % | ||
6/30/2028 |
3.316 | % | ||
12/31/2028 |
3.362 | % | ||
6/30/2029 |
3.408 | % | ||
12/31/2029 |
3.455 | % | ||
6/30/2030 |
3.502 | % | ||
12/31/2030 |
3.550 | % | ||
6/30/2031 |
3.599 | % | ||
12/31/2031 |
3.648 | % | ||
6/30/2032 |
3.698 | % | ||
12/31/2032 |
3.749 | % | ||
6/30/2033 |
3.800 | % | ||
12/31/2033 |
3.852 | % | ||
6/30/2034 |
3.905 | % | ||
12/31/2034 |
3.959 | % | ||
6/30/2035 |
4.013 | % | ||
12/31/2035 |
4.068 | % | ||
6/30/2036 |
4.124 | % | ||
12/31/2036 |
4.180 | % | ||
6/30/2037 |
4.238 | % | ||
12/31/2037 |
4.296 | % | ||
6/30/2038 |
4.355 | % | ||
12/31/2038 |
4.414 | % | ||
6/30/2039 |
4.475 | % | ||
12/31/2039 |
4.536 | % |
(a) | all documents required by TIA §314(d); and |
(b) | an opinion of counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d). |
(a) |
(i) | any sale, exchange, disposition or transfer (by merger, consolidation or otherwise) made in compliance with the applicable provisions of the indenture (including the Asset Sale provisions of the indenture) to a Person that is not (either before or after giving effect to such transaction) CCH or a Restricted Subsidiary of CCH of: |
(A) | all or substantially all of the Capital Stock of such Guarantor (and such Guarantor ceases to be a subsidiary of CCH as a result of such sale, exchange, disposition or transfer); or |
(B) | all or substantially all of the assets of such Guarantor; |
(ii) | designation of any Guarantor as an Unrestricted Subsidiary in accordance with the terms of the indenture; |
(iii) | exercise of legal or covenant defeasance, if any, pursuant to the indenture or upon payment in full in cash of the applicable notes and discharge of all other related Senior Debt Obligations that are outstanding, due and payable at the time the notes are paid in full in cash and discharged; |
(iv) | subject to the provisions described under the caption “—Covenants Applicable to the Notes—Merger and Liquidation, Sale of All Assets,” the merger or consolidation of any Guarantor with and into CCH, another Guarantor or a Person that will become a Guarantor substantially upon the consummation of such merger or consolidation, or upon the liquidation of such Guarantor following the transfer of all of its assets to CCH or another Guarantor; |
(v) | the Note Guarantees or Security Interests granted by CCH or any Guarantors being released and discharged pursuant to the CSAA, as described under the caption “Description of Security Documents—Common Security and Account Agreement—Security Interests”; or |
(vi) | if otherwise permitted or required under the terms of the indenture; and |
(b) | CCH delivering to the Indenture Trustee an officer’s certificate stating that all conditions precedent provided in the indenture and the CSAA for the release of such Guarantor from its Note Guarantee or such Security Interests have been complied with. |
(a) | At any time or from time to time prior to July 4, 2039 (180 days prior to the maturity date of the notes) (the “Call Date”), CCH may, at its option, redeem all or a part of the notes, at a redemption price equal to the Make-Whole Price plus accrued and unpaid interest, if any, up to but excluding the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date without duplication). |
(i) | 100% of the principal amount of such notes, without any premium, penalty or charge; and |
(ii) | an amount equal to the sum of the present values of the remaining scheduled payments of principal and interest from the redemption date to the Call Date (assuming the principal amount is scheduled to be paid on the Call Date and not including any portion of such payments of interest accrued and paid on the redemption date) discounted back to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points. |
(b) | At any time on or after the Call Date, CCH may, at its option, redeem all or a part of the notes at a redemption price equal to 100% of the principal amount of the notes to be redeemed, plus accrued and unpaid interest up to but excluding the redemption date, without any premium, penalty or charge (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date without duplication). |
(a) | a third party makes the Change of Control Offer described in the foregoing paragraph and purchases all notes properly tendered and not withdrawn; or |
(b) | a notice of optional redemption has been given pursuant to the indenture as described under the caption “Optional Redemption,” unless and until there is a default in payment of the applicable redemption price. |
(a) | accept for payment all notes or portions of notes properly tendered pursuant to the Change of Control Offer; |
(b) | deposit with the paying agent an amount equal to the Change of Control Payment in respect of all notes or portions of notes properly tendered; and |
(c) | deliver or cause to be delivered to the Indenture Trustee the notes properly accepted together with an officer’s certificate stating the aggregate principal amount of notes or portions of notes being purchased by CCH. |
(a) | CCH (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and |
(b) | at least 90% of the consideration therefor received by CCH or such Restricted Subsidiary is in the form of cash, Authorized Investments or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash: |
(i) | any liabilities, as shown on the most recent consolidated balance sheet (or as would be shown on CCH’s consolidated balance sheet as of the date of such Asset Sale) of CCH or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases CCH or such Restricted Subsidiary from further liability therefor; and |
(ii) | any securities, notes or other obligations received by CCH or such Restricted Subsidiary from such transferee that are converted by CCH or such Restricted Subsidiary into cash or Authorized Investments within 90 days after such Asset Sale, to the extent of the cash or Authorized Investments received in that conversion. |
(a) | to repay any Senior Debt in accordance with the applicable Senior Debt Instrument; or |
(b) | to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets); provided |
agreement and (ii) if such capital expenditure or purchase is not consummated within the period set forth in sub-clause (i), the amount not so applied will be deemed to be Excess Proceeds (as defined below). |
(a) | complete, repair, refurbish or improve the Project Facilities in respect of which the Performance Liquidated Damages were paid or other Project Facilities under construction related to the Corpus Christi Terminal Facility or the Corpus Christi Pipeline; or |
(b) | repay or reimburse providers of Equity Funding to the extent such Equity Funding was used to complete, repair, refurbish or improve the Project Facilities in respect of which the Performance Liquidated Damages were paid or other Project Facilities under construction related to the Corpus Christi Terminal Facility or the Corpus Christi Pipeline. |
(a) | CCL breaches the LNG SPA maintenance covenant described under the caption “Covenants Applicable to the Notes—LNG SPA Maintenance”; or |
(b) | with respect to a Required LNG SPA, an Indenture Required Export Authorization becomes Impaired and CCL does not (i) provide a remediation plan to the Indenture Trustee (setting forth in reasonable detail proposed steps to reinstate the Indenture Required Export Authorization or to modify its LNG SPA arrangements such that such Export Authorization is no longer an Indenture Required Export Authorization with respect to any or all of such Required LNG SPAs (each such item, an “Export Authorization Remediation”)) within 30 days following such Impairment, and (ii) cause such Export Authorization Remediation to become effective within 90 days following the occurrence of such Impairment, which period is automatically extended by an additional 90 days to effect the Export Authorization Remediation if CCL certifies to the Indenture Trustee prior to the termination of the initial 90 day period that (A) CCL is diligently pursuing its plan for the Export Authorization Remediation and (B) the Impairment of the Indenture Required Export Authorization could not reasonably be expected to result in a Material Adverse Effect during such subsequent cure period; provided sub-clause (b)(ii) is 360 days. |
(a) | the amount of the LNG SPA Mandatory Prepayment as required by the Common Terms Agreement; and |
(b) | the difference between: |
(i) | the aggregate principal amount of Senior Debt then outstanding plus the aggregate principal amount of undrawn Facility Debt Commitments, less |
(ii) | the maximum amount of Senior Debt that can be incurred such that it is capable of being amortized to a zero balance through the termination date of the last to terminate of the Qualifying LNG SPAs then in effect (including any Replacement Indenture Qualifying LNG SPAs entered into to replace any LNG SPAs whose termination triggered the Indenture LNG SPA Prepayment Event) and produces an Indenture Projected Fixed DSCR of at least 1.40:1.00 through the terms of such Qualifying LNG SPAs, with such calculation using all such Qualifying LNG SPAs in respect of which there is in effect their Indenture Required Export Authorizations which are not Impaired, and using an interest rate equal to the weighted average interest rate of all Senior Debt (other than Working Capital Debt) then outstanding. |
(a) | the aggregate principal amount of notes and other Senior Debt then outstanding, less |
(b) | the maximum amount of Senior Debt that can be incurred such that it is capable of being amortized to a zero balance through the termination date of the last to terminate of the Qualifying LNG SPAs then in effect (including any new Qualifying LNG SPAs entered into to replace an LNG SPA whose termination triggered the Indenture LNG SPA Prepayment Event) and produces an Indenture Projected Fixed DSCR of at least 1.40:1.00 through the terms of such Qualifying LNG SPAs, with such calculation using all such Qualifying LNG SPAs in respect of which there is in effect their Indenture Required Export Authorizations which are not Impaired, and using an interest rate equal to the weighted average interest rate of all Senior Debt (other than Working Capital Debt) then outstanding. |
(a) | in the case of an LNG SPA Mandatory Offer made pursuant to the third paragraph under this caption “—LNG SPA Mandatory Offer” less than the pro rata pro rata |
(b) | in the case of an LNG SPA Mandatory Offer made pursuant to the fourth paragraph under this caption “—LNG SPA Mandatory Offer” less than the pro rata pro rata |
(c) | in the case of an LNG SPA Mandatory Offer made pursuant to the fifth paragraph under this caption “—LNG SPA Mandatory Offer” as described above, less than the LNG SPA Mandatory Offer Amount, CCH shall not have any further obligations under the indenture with respect to such LNG SPA Mandatory Offer. |
(a) | the provider of Working Capital Debt (or a Senior Creditor Group Representative on its behalf) that is secured shall accede as a Senior Creditor to the CSAA and the Common Terms Agreement and the Intercreditor Agreement, if such agreements are still outstanding, and shall share pari passu |
(b) | in respect of Working Capital Debt that is secured, the Intercreditor Agent shall have received a certificate from an Authorized Officer at least five days prior to the incurrence of such Working Capital Debt that (i) identifies each Senior Creditor Group Representative for, and each holder of, any such Working Capital Debt, and (ii) attaches a copy of each proposed Senior Debt Instrument relating to any such Working Capital Debt. |
(a) | in the case of any Replacement Senior Debt to be incurred following the first Date of First Commercial Delivery that occurs under any Initial LNG SPA which has designated the second Train to become commercially operable as a designated Train, the Senior Debt (excluding Working Capital Debt and excluding all Indebtedness under Permitted Senior Debt Hedging Instruments) outstanding after giving effect to the incurrence of the Replacement Senior Debt is capable of being amortized to a zero balance by the termination date of the last to terminate of the Qualifying LNG SPAs then in effect and produces an Indenture Projected Fixed DSCR of at least 1.40:1.00 for the period commencing on the first Indenture Payment Date to occur after the last “guaranteed substantial completion date” (as defined in |
the applicable engineering, procurement and construction contract) with respect to any Trains then in construction (or if the Date of First Commercial Delivery has occurred with respect to all Trains, the first Indenture Payment Date to occur after the date of incurrence of such Replacement Senior Debt) through the terms of such Qualifying LNG SPAs (with such ratio being calculated using such Qualifying LNG SPAs and using an interest rate equal to the weighted average interest rate of Senior Debt (excluding Working Capital Debt) outstanding after giving effect to the incurrence of the Replacement Senior Debt and the prepayment or repayment of the existing Senior Debt or cancellation of the applicable Senior Debt Commitments); and |
(b) | the Replacement Senior Debt is incurred for the permitted refinancing or prepayment in whole or in part of existing Senior Debt including by way of renewal, replacement, redemption or discharge thereof (and provisions, costs, prepayment premiums, fees or expenses associated with the Replacement Senior Debt or the prepaid Senior Debt, as applicable (including without duplication (i) any Hedging Termination Amount with respect to any Permitted Hedging Instrument subject to the refinancing with the proposed Replacement Senior Debt; (ii) any amounts required to be deposited in a debt service reserve or similar reserve (or any interest during construction) account in connection with the issuance of such Replacement Senior Debt; and (iii) any incremental carrying costs of such Replacement Senior Debt (including any increased interest during construction) associated with any such cancellation, prepayment or redemption, or incurred in connection with the proposed Replacement Senior Debt)), or the permitted replacement of existing unutilized commitments of a Senior Creditor Group (or, within a Senior Creditor Group, of any Facility Lender). |
(a) | if the Expansion Senior Debt is incurred to fund Permitted Development Expenditures, (i) the design, development, construction and operation of such Permitted Development Expenditure is permitted as described under the caption “Permitted Development Expenditures—Permitted Development Expenditures” and (ii) the aggregate amount of Expansion Senior Debt used or to be used for Permitted Development Expenditures falling into categories (b) and (c) of the definition thereof is less than $300 million; |
(b) | if the Expansion Senior Debt is incurred to fund an Expansion, the design, development, construction and operation of such Expansion is permitted under the caption “Expansions—Expansions”; |
(c) | no Indenture Event of Default or Unmatured Indenture Event of Default has occurred and is Continuing; |
(d) | in the event any Train, LNG SPA or engineering, construction and procurement contract related to the Train or Trains being financed with the proceeds of such Expansion Senior Debt (such Train, LNG SPA and engineering, construction and procurement contract, the “Applicable Expansion Debt Assets”) are not part of the Collateral, prior to the incurrence of such Expansion Senior Debt, the applicable Obligor will deliver such additional agreements and supplements to the Security Documents as are necessary or advisable in order to subject such Applicable Expansion Debt Assets to the Security Interests at the time such Expansion Senior Debt is incurred; |
(e) | any Required LNG SPAs are then in effect and there is no material payment default or breach thereunder (or, for any new Required LNG SPA related to LNG to be produced from the Expansion, |
remain subject only to customary conditions that could be satisfied upon taking an investment decision with respect to the Expansion); |
(f) | if the Expansion Senior Debt is incurred to fund an Expansion, the amount of all Senior Debt (excluding Working Capital Debt and excluding all Indebtedness under Permitted Senior Debt Hedging Instruments) outstanding after giving effect to the incurrence of Expansion Senior Debt is capable of being amortized to a zero balance by the termination date of the last to terminate of the Qualifying LNG SPAs then in effect and incremental Qualifying LNG SPAs entered into in respect of sales of LNG associated with the Expansion, and produces an Indenture Projected Fixed DSCR of at least 1.40:1.00 for the period commencing on the first Indenture Payment Date to occur after the last “guaranteed substantial completion date” (as defined in the applicable engineering, procurement and construction contract) with respect to any Trains then in construction or with respect to which the Expansion Senior Debt is being incurred, through the terms of such Qualifying LNG SPAs (with such ratio calculated using such Qualifying LNG SPAs and using an interest rate equal to the weighted average interest rate of Senior Debt (excluding Working Capital Debt) outstanding after giving effect to the incurrence of the Expansion Senior Debt); |
(g) | if the Expansion Senior Debt is incurred to fund an Expansion: |
(i) | for so long as at least $1 billion of Loans or Senior Debt Commitments in connection therewith are outstanding, CCH has obtained the consent of the Facility Lenders pursuant to Section 6.5 ( Expansion Senior Debt |
(ii) | CCH has obtained and delivered to the Indenture Trustee a Rating Reaffirmation in respect of the notes on the basis of the incurrence of such Expansion Senior Debt; |
(h) | the final maturity date of the Expansion Senior Debt is no earlier than the latest “guaranteed substantial completion date” set forth in the applicable engineering, procurement and construction contract for that part of the Development associated with the applicable Train or Trains forming part of such Expansion; and |
(i) | the Expansion Senior Debt does not benefit from any security or guarantee from the Obligors or the Sponsor or its Affiliates that is in addition to any security or guarantee from such Persons provided in respect of the Initial Senior Debt unless such security or guarantee is provided for the equal and ratable benefit of each Senior Creditor. |
(a) | One or more Trains (including, for the avoidance of doubt, Train Three) and related storage, transportation, loading, unloading and other facilities and equipment; |
(b) | other facilities for producing, storing, loading or unloading LNG or other products required for or associated with the production of LNG, including modifications of the then-existing facilities to provide regasification or bi-directional production services; |
(c) | expansion of existing pipelines or construction of new pipelines, and related infrastructure; |
(d) | other modifications of then-existing Project Facilities; and |
(e) | the construction of Project Facilities or other infrastructure pursuant to a Sharing Arrangement permitted under the caption “Covenants Applicable to the Notes—Sharing of Project Facilities.” |
(a) | CCH has provided to the Indenture Trustee a funding plan covering the full amount of costs in respect thereof in order to achieve Substantial Completion of each Train, as applicable, forming part of such Expansion, a budget and construction schedule of the Expansion, with an appropriate contingency and identifying the source of funds to cover such costs (being permitted Expansion Senior Debt, additional funding (including contributions in the form of Subordinated Debt or Equity Funding) from the Sponsor under an equity commitment agreement (“Expansion Equity Funding Commitment”) and/or Development-generated funds that are projected by CCH to be freely available for Restricted Payments as set forth in sub-clause (f)(iii) below); |
(b) | CCH shall have delivered to the Indenture Trustee a certificate of an Authorized Officer of CCH certifying that no Material Adverse Effect will occur, or would reasonably be expected to occur, as a result of the implementation of such proposed Expansion (including, without limitation, the construction, ownership or operation thereof), as the case may be; |
(c) | the Independent Engineer shall have certified to the Indenture Trustee that it has reviewed and concurs with CCH’s cost estimate under clause (a) above and CCH’s certification in clause (b) above; |
(d) | CCH shall have delivered to the Indenture Trustee a certificate of an Authorized Officer of CCH certifying that: |
(i) | all material Permits from a Governmental Authority required in respect of the implementation of such proposed Expansion (excluding any FERC order or Export Authorizations which are |
addressed in sub-clauses (ii) and (iii) below) have been obtained or CCH shall have delivered to the Indenture Trustee a certificate of an Authorized Officer of CCH certifying that it reasonably expects such material consents can be obtained by the Obligors when necessary without material expense or delay to construction of the Expansion; |
(ii) | a FERC order with respect to the Expansion: (1) has been obtained, (2) is in full force and effect, and (3) is free from conditions and requirements (y) the compliance with which could reasonably be expected to have a Material Adverse Effect or (z) that the applicable Obligor does not expect to be able to satisfy on or prior to the commencement of the relevant stage of Development except to the extent that failure to satisfy such condition or requirement would not reasonably be expected to have a Material Adverse Effect; |
(iii) | each Export Authorization in respect of the quantum of sales contemplated in connection with the Expansion: (1) has been obtained, (2) is in full force and effect and (3) is free from conditions and requirements (y) the compliance with which could reasonably be expected to have a Material Adverse Effect, or (z) that the applicable Obligor does not expect to be able to satisfy on or prior to the commencement of the relevant stage of Development except to the extent that failure to satisfy such condition or requirement would not reasonably be expected to have a Material Adverse Effect; |
(iv) | CCH has used reasonable commercial efforts to obtain insurance with respect to the proposed Expansion consistent with the requirements described under the caption “—Covenants Applicable to the Notes—Insurance” taking into account the type and value of the Expansion; and |
(v) | the engineering, procurement and construction contract associated with the proposed Expansion is in effect and no material payment default exists thereunder; |
(e) | no Indenture Event of Default or Unmatured Indenture Event of Default has occurred and is Continuing; |
(f) | if the funding plan delivered under clause (a) above for any Expansion contemplates that: |
(i) | Expansion Senior Debt is a source of funding, then (1) such Senior Debt is permitted under the caption “Incurrence of Senior Debt—Expansion Senior Debt,” and (2) the cost of such Expansion that is not covered by Expansion Senior Debt is covered by Expansion Equity Funding Commitments as described in sub-clause (ii) below and/or Development-generated funds meeting the requirements under sub-clause (iii) below; |
(ii) | Expansion Equity Funding Commitments are a source of funding, then the commitment of the Sponsor to provide such Expansion Equity Funding Commitments is set forth in an irrevocable equity commitment agreement in substantially the form of the CEI Equity Contribution Agreement and CCH’s rights under such funding commitments have been assigned to the Security Trustee for the benefit of the Senior Creditors, and the Obligors have obtained a direct agreement with the Security Trustee in respect of each such funding commitment from the entity providing such funding commitment; and |
(iii) | Development-generated funds are a source of funding, then such funds are projected by CCH to be freely available for Restricted Payments (taking into account the DSCR condition to the making of Restricted Payments, but no others), such projection to be detailed, based on reasonable assumptions and certified by an Authorized Officer to the Indenture Trustee. This certification will not require any further determination by the Indenture Trustee. |
(a) | no Indenture Event of Default or Unmatured Indenture Event of Default has occurred and is Continuing or would occur as a result of such Restricted Payment; |
(b) | the Indenture Historical DSCR and the Indenture Projected Fixed DSCR, each for the Calculation Period, are both at least 1.25:1; |
(c) | the Senior Debt Service Reserve Account is funded (with cash or Acceptable Debt Service Reserve LCs) with the then-applicable Indenture Reserve Amount and the applicable debt service reserve requirements under any Senior Debt Instrument governing Expansion Senior Debt or Replacement Senior Debt, as applicable; |
(d) | Substantial Completion of Train Two under EPC Contract (T1/T2) has occurred, as certified to the Indenture Trustee by the Independent Engineer; |
(e) | no LNG SPA Mandatory Prepayment or Indenture LNG SPA Prepayment Event, as the case may be, has occurred and is continuing in respect of which the LNG SPA Mandatory Offer required by the occurrence of such event in accordance with the provisions described under the caption “Repurchase at the Option of Noteholders—LNG SPA Mandatory Offer” has not been made and all tendered notes purchased; and |
(f) | the Indenture Trustee has received a certificate of an Authorized Officer of CCH confirming that each of the conditions set forth in clauses (a) through (e) above has been satisfied and setting forth the calculation of Indenture Historical DSCR and Indenture Projected Fixed DSCR in clause (b) above. |
(a) | CCH shall have delivered to the Indenture Trustee a certificate of an Authorized Officer of CCH certifying that the amount of all Senior Debt (excluding Working Capital Debt and excluding all Indebtedness under Permitted Senior Debt Hedging Instruments) outstanding, after giving effect to the incurrence of such Indebtedness, is capable of being amortized to a zero balance by the termination date of the last to terminate of the Qualifying LNG SPAs then in effect and produces an Indenture Projected Fixed DSCR of at least 1.40:1.00 through the terms of such Qualifying LNG SPAs (with such ratio calculated using such Qualifying LNG SPAs, and using an interest rate equal to the weighted average interest rate of Senior Debt (excluding Working Capital Debt) outstanding after giving effect to the incurrence of such Indebtedness and the application of the proceeds therefrom); or |
(b) | CCH has obtained and delivered to the Indenture Trustee a Rating Reaffirmation in respect of the notes after giving effect to the incurrence of such Indebtedness; or |
(c) | If falling within any of the categories in paragraphs (1) through (17) below (for the avoidance of doubt, including any Additional Senior Debt, incurred in accordance with the provisions described under the caption “Incurrence of Senior Debt”): |
(1) | Senior Debt, including the Initial Senior Debt and any Additional Senior Debt, incurred in accordance with the provisions described under the caption “Incurrence of Senior Debt”; |
(2) | Indebtedness expressly contemplated by a Finance Document to which the Indenture Trustee is a party; |
(3) | Indebtedness incurred in the ordinary course of business pursuant to a Material Project Agreement; |
(4) | Subordinated Debt; |
(5) | intercompany Indebtedness between or among CCH and any of its Restricted Subsidiaries; provided, however |
(i) | if CCH or any Guarantor is the obligor on such Indebtedness and the payee is not CCH or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Senior Debt Obligations then due with respect to the notes, in the case of CCH, or the Note Guarantee, in the case of a Guarantor; and |
(ii) |
(A) | any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than CCH or a Restricted Subsidiary of CCH; and |
(B) | any sale or other transfer of any such Indebtedness to a Person that is not either CCH or a Restricted Subsidiary of CCH, will be deemed, in each case, to constitute an incurrence of such Indebtedness by CCH or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (c)(5); |
(6) | Indebtedness incurred under Permitted Hedging Instruments not covered under clause (c)(1); |
(7) | Indebtedness in respect of any bankers’ acceptances, letters of credit, warehouse receipts or similar facilities, in each case, incurred in the ordinary course of business; |
(8) | purchase money Indebtedness and capital leases or guarantees of the same, in a principal amount not exceeding $100 million in the aggregate outstanding at any one time to finance the purchase or lease of assets for the Development other than those financed with the proceeds of Senior Debt; provided |
(9) | other unsecured Indebtedness in an aggregate amount not to exceed $100 million for general corporate purposes, including all Permitted Refinancing Indebtedness thereof; |
(10) | other unsecured Indebtedness in an aggregate amount not to exceed $400 million to finance Permitted Development Expenditures, an Expansion or any other Development Expenditures, including all Permitted Refinancing Indebtedness thereof; |
(11) | to the extent constituting Indebtedness, indebtedness arising from honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course or other cash management services in the ordinary course of business; |
(12) | Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; |
(13) | contingent liabilities incurred in the ordinary course of business, including the acquisition or sale of goods, services, supplies or merchandise in the normal course of business, the endorsement of negotiable instruments received in the normal course of business and indemnities provided under any of the Finance Documents or Material Project Agreements; |
(14) | to the extent constituting Indebtedness, obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, indemnification obligations, obligations to pay insurance premiums, take-or-pay |
(15) | trade debt, trade accounts, purchase money obligations or other similar Indebtedness incurred in the ordinary course of business, which (i) is not more than 90 days past due or (ii) is being contested in good faith and by appropriate proceedings; |
(16) | Indebtedness in an amount not to exceed $250 million to finance restoration of the Development following damage, loss or destruction of all or a material portion of the Project Facilities or an Event of Taking, including any refinancing thereof; and |
(17) | Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of CCH and its Restricted Subsidiaries in the ordinary course of business. |
(a) | the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; |
(b) | in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the least of: |
(i) | the Fair Market Value of such asset at the date of determination; |
(ii) | the amount of the Indebtedness of the other Person; and |
(iii) | the principal amount of the Indebtedness, in the case of any other Indebtedness. |
(a) |
(i) | pay dividends or make any other distributions on its Capital Stock to CCH or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits; or |
(ii) | pay any indebtedness owed to CCH or any of its Restricted Subsidiaries; |
(b) | make loans or advances to CCH or any of its Restricted Subsidiaries; or |
(c) | sell, lease or transfer any of its properties or assets to CCH or any of its Restricted Subsidiaries. |
(a) | agreements or instruments governing existing Indebtedness as in effect on the Notes Issue Date and any amendments, restatements, modifications, increases, renewals, supplements, refundings, replacements or refinancings of those agreements or instruments; provided |
(b) | the Finance Documents or the EIG Note Purchase Agreement; |
(c) | applicable law, rule, regulation or order; |
(d) | customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business; |
(e) | purchase money obligations for property acquired in the ordinary course of business and capital lease obligations that impose restrictions on the property purchased or leased of the nature described in clause (c) in the preceding paragraph; |
(f) | any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition; |
(g) | Indebtedness permitted pursuant to the indenture, as described under the caption “—Limitation on Indebtedness,” including Replacement Senior Debt; provided |
(h) | Liens permitted to be incurred pursuant to the indenture, as described under the caption “—Limitation on Liens” that limit the right of the debtor to dispose of the assets subject to such Liens; |
(i) | provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, security agreements, mortgages, purchase money agreements and other similar agreements or instruments entered into with the approval of the Board of Directors of CCH, Holdco or the applicable Restricted Subsidiary, which limitation is applicable only to the assets that are the subject of such agreements; |
(j) | Permitted Hedging Instruments; or |
(k) | restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business. |
(a) | either (i) CCH is the surviving entity or (ii) the Person formed by or surviving such consolidation, merger, conversion or continuation (if other than CCH) or to which such sale, assignment, transfer, |
lease, conveyance or disposition is made is a corporation, limited liability company or partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia and assumes CCH’s obligations under the notes, the indenture, the Security Documents and the registration rights agreement pursuant to a supplemental indenture, appropriate modifications (if necessary) to the Security Documents and the registration rights agreement; |
(b) | no Indenture Event of Default or Unmatured Indenture Event of Default would exist immediately after giving effect to such transaction or series of related transactions; |
(c) | either: |
(i) | CCH or the Person formed by or surviving any consolidation or merger or sale, assignment, transfer, lease, conveyance or disposition (if other than CCH) has obtained and delivered to the Indenture Trustee (A) letters from any two Acceptable Rating Agencies (or if only one Acceptable Rating Agency is then rating the notes, CCH shall have received a letter from that Acceptable Rating Agency) to the effect that the Acceptable Rating Agency has considered the contemplated transaction or series of related transactions, and that, if the transaction or series of related transactions are consummated, such Acceptable Rating Agency would reaffirm the Investment Grade rating of the notes as of the date of such transaction or series of related transactions and (B) letters from all other Acceptable Rating Agencies then rating the notes, if any, to the effect that the Acceptable Rating Agency has considered the contemplated transaction or series of related transactions, and that, if the contemplated transaction or series of related transactions are consummated, such Acceptable Rating Agency would reaffirm its then current rating of the notes as of the date of such transaction or series of related transactions; or |
(ii) | (A) the amount of all Senior Debt (excluding Working Capital Debt and excluding all Indebtedness under Permitted Senior Debt Hedging Instruments) of CCH or the Person formed by or surviving any consolidation or merger, or sale, assignment, transfer, lease, conveyance or disposition (if other than CCH) outstanding after giving effect thereto, is capable of being amortized to a zero balance by the termination date of the last to terminate of the Qualifying LNG SPAs then in effect and produces an Indenture Projected Fixed DSCR that is not less than the lower of (i) 1.40:1.00 and (ii) the Indenture Projected Fixed DSCR derived from amortizing the amount of all Senior Debt (excluding Working Capital Debt and excluding all Indebtedness under Permitted Senior Debt Hedging Instruments) of CCH outstanding prior to giving effect thereto to a zero balance by the termination date of the last to terminate of such Qualifying LNG SPAs, in each case through the terms of such Qualifying LNG SPAs, with such calculations using such Qualifying LNG SPAs and using an interest rate equal to (x) in the case of an amortization calculation after giving effect to such consolidation or merger, or sale, assignment, transfer, lease, conveyance or disposition, the weighted average interest rate of all such Senior Debt (excluding Working Capital Debt) outstanding after giving effect thereto and (y) in the case of an amortization calculation prior to giving effect to such consolidation or merger, or sale, assignment, transfer, lease, conveyance or disposition, the weighted average interest rate of all such Senior Debt (excluding Working Capital Debt) outstanding prior to giving effect thereto, (B) after giving effect to such transaction or series of related transactions, CCH or the Person formed by or surviving any consolidation or merger or sale, assignment, transfer, lease, conveyance or disposition (if other than CCH) and its Restricted Subsidiaries are not engaged in any business or activities other than the Permitted Businesses, except to such extent as would not be material to such Person and its Restricted Subsidiaries, taken as a whole and (C) after giving effect to such transaction or series of related transactions, the obligations under the notes are not assumed or guaranteed by the Sponsor; and |
(d) | CCH shall have delivered to the Indenture Trustee a certificate from an Authorized Officer and an opinion of counsel, each stating that such consolidation or merger, conversion or continuation, or sale, assignment, transfer, lease, conveyance or disposition and such supplemental indenture, Security |
Documents and registration rights agreement, if any, comply with the indenture and that all conditions precedent provided for in the indenture relating to such transaction have been complied with. |
(a) |
(i) | the Person formed by or surviving such consolidation, merger, conversion or continuation (if other than the Guarantor) or to which such sale, assignment, transfer, lease, conveyance or disposition is made (the “Successor Guarantor”) is a Person (other than an individual) organized and existing under the same laws as the Guarantor was organized immediately prior to such transaction, or under the laws of the United States, any state of the United States or the District of Columbia; |
(ii) | the Successor Guarantor, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under the indenture, the Security Documents, the registration rights agreement and its Note Guarantee pursuant to a supplemental indenture, appropriate modifications (if necessary) to the Security Documents and Note Guarantee; |
(iii) | no Indenture Event of Default or Unmatured Indenture Event of Default would exist immediately after giving effect to such transaction or series of related transactions; and |
(iv) | CCH will have delivered to the Indenture Trustee a certificate from an Authorized Officer and an opinion of counsel, each stating that such consolidation or merger, conversion or continuation, or sale, assignment, transfer, lease, conveyance or disposition and such supplemental indenture, Security Documents, registration rights agreement and Note Guarantee, if any, comply with the indenture and the Security Documents and that all conditions precedent provided for in the indenture and the Security Documents relating to such transaction have been complied with; or |
(b) | the transaction does not violate the covenant described under the caption “Repurchase at the Option of Noteholders—Asset Sales.” |
(a) | transactions or agreements required by applicable law or regulation; |
(b) | transactions or agreements required or contemplated by the CSAA; |
(c) | transactions or agreements contemplated by any Material Project Agreement and entered into in the ordinary course of business (but not the entering into of a Material Project Agreement or an agreement that, pursuant to the terms of the indenture, becomes a Material Project Agreement); |
(d) | the Amended CMI Base SPA, the Gas and Power Supply Services Agreement and the Tax Sharing Agreements; |
(e) | transactions or agreements undertaken on fair and commercially reasonable terms that are not less favorable in the aggregate to CCH or such Restricted Subsidiary than would be obtained in a comparable agreement with independent parties acting at arm’s length (or, if there is no comparable arm’s-length transaction, then on terms reasonably determined by the Board of Directors of CCH to be fair and reasonable); |
(f) | transactions or agreements between or among CCH and/or its Restricted Subsidiaries; |
(g) | Subordinated Debt between or among CCH and/or its Restricted Subsidiaries and any of their Affiliates; |
(h) | any Sharing Arrangement with an Affiliate of CCH; provided |
(i) | any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by CCH or a Restricted Subsidiary, as the case may be, in the ordinary course of business and payments pursuant thereto; |
(j) | transactions with a Person (other than an Unrestricted Subsidiary of CCH) that is an Affiliate of CCH solely because CCH owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person; |
(k) | any issuance of Equity Interests (other than Disqualified Stock) of CCH to Affiliates of CCH; |
(l) | Permitted Investments, including those permitted under the caption “—Restricted Payments”; |
(m) | Permitted Payments; |
(n) | any contracts, agreements or understandings existing as of the Notes Issue Date or disclosed in the offering memorandum, dated as of August 17, 2021, related to the issuance of the Old Notes (the “Offering Memorandum”), and any amendments to or replacements of such contracts, agreements or understandings permitted under the Finance Documents to which the Indenture Trustee is a party; |
(o) | any assignment, novation or transfer of the Amended CMI Base SPA to an Affiliate of CCH or any of its Restricted Subsidiaries; and |
(p) | any arrangements entered into in accordance with the provisions described under the captions “—Customary Lifting and Balancing Arrangements” and “—Sharing of Project Facilities.” |
(a) | to the extent a Material Project Agreement is permitted to expire, be terminated or replaced under the indenture or expires or is replaced in accordance with its terms; |
(b) | to the extent provided under the captions “—LNG SPA Maintenance” and “Repurchase at the Option of Noteholders—LNG SPA Mandatory Offer” in relation to LNG SPAs; or |
(c) | to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect. |
(a) | such lifting and balancing arrangements are entered into on fair and commercially reasonable terms that are not less favorable in the aggregate to CCH and/or the applicable Restricted Subsidiary than would be obtained in a comparable agreement with independent parties acting at arm’s length; |
(b) | CCH shall have delivered to the Indenture Trustee a certificate of an Authorized Officer of CCH certifying that (i) after giving effect to such lifting and balancing arrangements (and any amendment thereto), CCH reasonably expects to be able to meet its performance and operational obligations under all then effective Material Project Agreements (to which the Independent Engineer has reasonably concurred); (ii) no Material Adverse Effect would reasonably be expected to occur as a result of the implementation of the proposed lifting and balancing arrangement and (iii) all conditions provided under this caption “Customary Lifting and Balancing Arrangements” have been satisfied; and |
(c) | CCH takes any action that may then be required to grant and perfect security over its rights, title and interest therein to the Senior Creditors as required by the CSAA. |
(a) |
(i) | the Sharing Arrangement does not involve any sale, lease or creation of a Lien over the assets of the Development, other than: |
(A) | any sale, lease or Lien over Real Estate which (1) is owned by CCH or a Restricted Subsidiary of CCH but is not reasonably necessary for siting, constructing or operating the Project Facilities (as then under construction and/or operation), (2) would not otherwise materially adversely impact the construction and/or operation of the Project Facilities (as then under construction and/or operation) or their performance as contemplated under their applicable engineering, construction or procurement contract or (3) could not reasonably be expected to have a Material Adverse Effect (with reasonable concurrence of the Independent Engineer in the case of reliance on clauses (1) or (2)); and |
(B) | any Permitted Liens or any customary easements, related subordination and non-attornment provisions or similar Liens employed for the grant of quiet enjoyment rights of use over facilities whose use is shared by one or more entities and which could not reasonably be expected to have a Material Adverse Effect. |
(ii) | Cheniere LNG O&M Services, LLC remains the operator of any Project Facilities subject to such Sharing Arrangement; |
(iii) | such Sharing Arrangement provides that, as a condition precedent to the commencement of any use, sharing or pooling of capacity in a facility that is owned by an External Train Entity, that such facility has reached substantial completion in accordance with the applicable engineering, construction and procurement contract; |
(iv) | CCH shall have delivered to the Indenture Trustee a certificate of an Authorized Officer of CCH certifying (to which the Independent Engineer has reasonably concurred) that after giving effect to such proposed Sharing Arrangement, CCL and CCP will hold capacity and use rights across the Project Facilities (as supplemented by any facilities developed and used by the External Train Entity) sufficient for CCH to meet its obligations under all then-effective Material Project Agreements; |
(v) | CCH shall take all actions required to grant a perfected security interest over CCH’s rights, title and interest in the agreements evidencing such Sharing Arrangements to the Senior Creditors as required by the CSAA (or any other Security Document executed pursuant thereto); |
(vi) | no Indenture Event of Default or Unmatured Indenture Event of Default has occurred and is Continuing or would occur as a result of the implementation of the Sharing Arrangement, and CCH so certifies; and |
(vii) | CCH shall have delivered to the Indenture Trustee a certificate of an Authorized Officer of CCH certifying that (A) all requirements described under this caption “Sharing of Project Facilities” have been complied with, (B) no Material Adverse Effect could reasonably be expected to arise as a result of implementing the proposed Sharing Arrangements and (C) all material Permits from a Governmental Authority required in respect of the implementation of such proposed Sharing Arrangement have been obtained or CCH shall have delivered to the Indenture Trustee a certificate of an Authorized Officer of CCH certifying that it reasonably expects such material consents can be obtained by the Obligors when necessary without material expense or delay to implementation of the Sharing Arrangement; and |
(b) | the amount of all Senior Debt (excluding Working Capital Debt and excluding all Indebtedness under Permitted Senior Debt Hedging Instruments) of CCH outstanding after giving effect to such Sharing Arrangements is capable of being amortized to a zero balance by the termination date of the last to terminate of the Qualifying LNG SPAs then in effect and produces an Indenture Projected Fixed DSCR that is not less than the Indenture Projected Fixed DSCR derived from amortizing the amount of all Senior Debt (excluding Working Capital Debt and excluding all Indebtedness under Permitted Senior Debt Hedging Instruments) of CCH outstanding prior to giving effect to such Sharing Arrangements to a zero balance by the termination date of the last to terminate of such Qualifying LNG SPAs, in each case through the terms of such Qualifying LNG SPAs, with such calculations using such Qualifying LNG SPAs and using an interest rate equal to (i) in the case of an amortization calculation after giving effect to such Sharing Arrangements, the weighted average interest rate of all such Senior Debt (excluding Working Capital Debt) outstanding after giving effect thereto and (ii) in the case of an amortization calculation prior to giving effect to such Sharing Arrangements, the weighted average interest rate of all such Senior Debt (excluding Working Capital Debt) outstanding prior to giving effect thereto. |
(a) | CCL intends to replace such terminated LNG SPA with one or more LNG SPAs that would each be a Qualifying LNG SPA that enables CCL to meet the Base Committed Quantity requirement set forth above and is diligently pursuing such replacement; and |
(b) | the termination of such Qualifying LNG SPA would not reasonably be expected to result in a Material Adverse Effect during such subsequent cure period; provided |
(a) | With respect to any new LNG SPA or a Replacement Indenture Qualifying LNG SPA: |
(i) | for so long as at least $1 billion of Loans or Senior Debt Commitments in connection therewith are outstanding, such LNG SPA is approved by the Intercreditor Agent; or |
(ii) | such LNG SPA is entered into for a Qualifying Term and is entered into (A) with an Investment Grade LNG Buyer or (B) for so long as at least $1 billion of Loans or Senior Debt Commitments in connection therewith are outstanding, any entity approved pursuant to the terms of the Loans; or |
(iii) | in the case of: |
(A) | any new LNG SPA, CCH has obtained and delivered to the Indenture Trustee a Rating Reaffirmation which takes into account the proposed LNG SPA and LNG Buyer; or |
(B) | one or more Replacement Indenture Qualifying LNG SPAs that replace one or more terminated LNG SPAs which, in the aggregate, would require the delivery of an annual contracted quantity of no more than 208,571,428 MMBtu in order to replace such terminated LNG SPAs in full, CCH has obtained and delivered to the Indenture Trustee a Rating Reaffirmation which (y) takes into account the Replacement Indenture Qualifying LNG SPAs and the LNG Buyers and (z) reaffirms CCH’s rating in effect immediately prior to the occurrence of the termination event giving rise to the termination of the LNG SPAs being replaced (but prior to the running of any applicable notice period or cure period thereunder); and |
(b) | no Material Adverse Effect occurs, or could reasonably be expected to occur, as a result of entering into such LNG SPA or, in the case of a Replacement Indenture Qualifying LNG SPA, the termination of the LNG SPA being replaced and the entering into of the Replacement Indenture Qualifying LNG SPA, taken as a whole. |
(a) | Indenture Payment Default: |
(i) | CCH fails to pay principal amounts due on the notes; provided |
(ii) | CCH fails to pay interest or other amounts due on the notes within three Business Days of the same becoming due. |
(b) | Breach of Certain Covenants: except as specifically provided for in another Indenture Event of Default under this caption “—Indenture Events of Default”: |
(i) | breach by CCH or any Restricted Subsidiary of any covenant described under the caption “Covenants Applicable to the Notes—Merger and Liquidation, Sale of All Assets”; |
(ii) | failure by CCH to consummate a purchase of notes when required pursuant to the provisions described under the caption “Repurchase at the Option of Noteholders”; |
(iii) | breach by CCH or any Restricted Subsidiary of any covenant described under the captions “Covenants Applicable to the Notes—Material Project Agreements”; “—Compliance with Law”; “—Taxes”; “—Limitation on Indebtedness”; “—Limitation on Liens”; and “Repurchase at the Option of Noteholders —Asset Sales” (to the extent not covered by the immediately preceding clause (ii)); and in each case that is not corrected or cured within 30 days following the earlier of (A) the applicable Obligor becoming aware of such failure; and (B) notice from the Indenture Trustee or holders of 33 1/3% of the principal amount of notes outstanding; |
(iv) |
(A) | breach by CCH or any Restricted Subsidiary of any covenant described under the captions “Covenants Applicable to the Notes—Project Construction; Maintenance of Properties”; “—Export Authorizations”; “—Nature of Business”; and “—Transactions with Affiliates”; or |
(B) | material breach by CCH or any Restricted Subsidiary of any of the other covenants in the indenture or the notes; in the case of each of sub-clauses (A) and (B) of this clause (iv), that is not corrected or cured within 90 days after the earlier of (1) CCH becoming aware of such breach and (2) notice from the Indenture Trustee or holders of 33 1/3% of the principal amount of notes outstanding; |
(v) | any Permit required as described under the caption “Covenants Applicable to the Notes—FERC Order” is Impaired and such Impairment could reasonably be expected to have a Material Adverse Effect unless such Impairment is cured no later than 90 days (or to the extent no Loans or Senior Debt Commitments in connection therewith are then outstanding, 360 days) following the occurrence thereof (or such longer period, if any, presented by any administrative, legal, regulatory or statutory time period applicable thereto; provided |
(vi) | material breach by Holdco of any covenant contained in the Holdco Pledge Agreement that is not corrected or cured within 30 days after the earlier of (A) Holdco becoming aware of such failure; |
and (B) notice from the Indenture Trustee or holders of 33 1/3% of the principal amount of notes outstanding. |
(c) | Bankruptcy: |
(i) | a Bankruptcy with respect to an Obligor or Holdco has occurred; or |
(ii) | a Bankruptcy shall occur with respect to (x) prior to the Project Completion Date, Bechtel and Bechtel’s guarantor under the EPC Contract (T1/T2) or (y) at any time between issuance of full NTP and Substantial Completion with respect to construction of Train Three, Bechtel and Bechtel’s guarantor under the EPC Contract (T3) (or any other applicable EPC contractor or its guarantor under a lump-sum turnkey engineering, procurement and construction contract in respect of Train Three), unless: |
(A) | CCH notifies the Security Trustee that it intends to enter into a replacement engineering, construction and procurement contract providing for a new contractor or guarantor, as applicable; |
(B) | CCH diligently pursues such contract; |
(C) | such contract is entered within 360 days of the Bankruptcy of Bechtel and Bechtel’s guarantor under the EPC Contract (T1/T2) or Bechtel and Bechtel’s guarantor under the EPC Contract (T3) (or any other applicable EPC contractor or its guarantor under a lump-sum turnkey engineering, procurement and construction contract in respect of Train Three), as applicable; and |
(D) |
(1) | such contract is on terms and conditions, taken as a whole, not materially likely to cause CCH to fail to meet the Project Completion Date by the Date Certain (as such term is defined in the Common Terms Agreement) or, in the case of Train Three, the equivalent thereof in respect of Train Three; |
(2) | the new contractor or guarantor is an internationally recognized contractor; and |
(3) | CCH has delivered to the Indenture Trustee a certificate of the Independent Engineer certifying that such counterparty is capable of completing the applicable portion of the Project Facilities; provided sub-clause (D) will not apply if the replacement engineering, construction and procurement contract is reasonably acceptable to: (x) if the aggregate Loans then outstanding is greater than 25% of the total Senior Debt then outstanding, the Intercreditor Agent (acting on the instructions of the Requisite Secured Parties); or (y) if the aggregate secured bank debt then outstanding is less than 25% of the total Senior Debt then outstanding, holders of notes of greater than 50% in aggregate principal amount of the then outstanding notes. |
(d) | Abandonment: Abandonment of the Development has occurred and is continuing. |
(e) | Event of Taking: An Event of Taking that would reasonably be expected to have a Material Adverse Effect has occurred. |
(f) | Security Interests Invalid: Any of the Security Interests over a material portion of the Collateral cease to be validly perfected in favor of the Security Trustee on behalf of the Secured Parties. |
(g) | Unsatisfied Judgments: |
(i) | Prior to the Project Completion Date, one or more of a judgment for the payment of money in excess of $250 million in the aggregate (net of insurance proceeds which are reasonably expected to be paid) or a final judgment for the payment of money in excess of $150 million; or |
(ii) | following the Project Completion Date, one or more final judgments for the payment of money in excess of $150 million in the aggregate (net of insurance proceeds which are reasonably expected |
to be paid); in each case, against an Obligor or Holdco or against any other Person where an Obligor or Holdco is liable to satisfy such judgment, which judgment is by one or more Governmental Authorities, courts, arbitral tribunals or other bodies having jurisdiction over any such entity, and such judgment or judgments remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of 90 days after the date of entry of such judgment; provided 90-day period will be stayed if an appeal in respect of such judgment or judgments has been filed and not dismissed. |
(h) | Unenforceability of indenture and Security Documents: The indenture, the CSAA (including the guarantees in the CSAA provided by the Guarantors) or any other Security Document (other than (i) a Direct Agreement in respect of any LNG SPA that is not a Required LNG SPA then in full force and effect or (ii) any Direct Agreement in the case where the occurrence of this Indenture Event of Default has been triggered by an event affecting the underlying Material Project Agreement and a mandatory offer to purchase under the caption “Repurchase at the Option of Noteholders” or other Indenture Event of Default is applicable) is: |
(i) | declared unenforceable in a final judgment of a court of competent jurisdiction against any party (other than the Indenture Trustee or holders of notes or any Senior Creditors); |
(ii) | expressly repudiated in writing by any party thereto (other than the Indenture Trustee or holders of notes or any Senior Creditors); or |
(iii) | shall have been terminated (other than pursuant to the terms thereof following discharge in full of all obligations thereof or otherwise by agreement in writing of the parties thereto not as a result of an Indenture Event of Default hereunder). |
(i) | Senior Debt Cross Payment Default/Cross-Acceleration Default: |
(i) | failure by CCH to pay when due any principal payments due on any Senior Debt (other than the notes) in a principal amount over $100 million in the aggregate; |
(ii) | failure by CCH to pay interest or other amounts on any Senior Debt (other than the notes) in a principal amount over $100 million within three Business Days of such interest or other amounts becoming due; or |
(iii) | commencement of a Security Enforcement Action in accordance with the CSAA. |
(j) | Cross-Acceleration Default (other Indebtedness): A default with respect to any Indebtedness (other than any amount due in respect of Senior Debt Obligations and Subordinated Debt) of CCH in a principal amount over $100 million in the aggregate, which default has continued beyond any applicable grace period, to the extent that it causes the entire amount of such Indebtedness to become due and such Indebtedness remains unpaid or the acceleration of its stated maturity unrescinded; and |
(k) | CEI Equity Contribution Agreement Cross-Default: Failure by Sponsor to make requested contributions to CCH pursuant to the CEI Equity Contribution Agreement: |
(i) | for so long as at least $1 billion of Loans or Senior Debt Commitments in connection therewith remain outstanding, if such failure causes the entire amount of Indebtedness under the Term Loan Facility Agreement to become due and such Indebtedness remains unpaid or the acceleration of its stated maturity unrescinded; or |
(ii) | for so long as less than $1 billion of Loans or Senior Debt Commitments in connection therewith remain outstanding, if such failure is not cured within 10 Business Days. |
(a) | such holder has previously given the Indenture Trustee written notice that an Indenture Event of Default is Continuing; |
(b) | holders of notes of at least 33 1/3% of the principal amount of notes outstanding make a written request to the Indenture Trustee to pursue the remedy; |
(c) | such holder or holders have offered to the Indenture Trustee indemnity or security satisfactory to the Indenture Trustee against any loss, liability or expense; |
(d) | the Indenture Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and |
(e) | holders of a majority in aggregate principal amount of the then outstanding notes have not given the Indenture Trustee a direction inconsistent with such request within such 60-day period. |
(a) | for any Covered Modification at a time when no Loans or Senior Debt Commitments in connection therewith remain outstanding, the Indenture Trustee shall vote in favor of such Covered Modification so long as such Covered Modification causes the provisions of the Finance Documents that are being amended to be equally or more restrictive on CCH than the covenants in the indenture; |
(b) | for any Covered Modification at a time when the Loans or Senior Debt Commitments in connection therewith then outstanding are less than 25% of the aggregate amount of Senior Debt then outstanding, the Indenture Trustee shall vote in conformity with the Term Lenders to the extent that any such Covered Modification causes the provisions of the Finance Documents that are being amended to be equally or more restrictive on CCH than the covenants in the indenture; |
(c) | for any Covered Modification at a time when the Loans or Senior Debt Commitments in connection therewith then outstanding are 25% or greater of the aggregate amount of Senior Debt then outstanding, the Indenture Trustee shall vote in conformity with the Intercreditor Agent; |
(i) | if any Loans or Senior Debt Commitments in connection therewith remain outstanding, the Indenture Trustee shall vote in conformity with the Term Lenders with respect to Fundamental Modifications set forth in Sections 7.2(b)(ii)(A), 7.2(b)(ii)(B), 7.2(b)(ii)(C), and 7.2(b)(ii)(D) ( Modifications to Other Finance Documents |
(ii) | if any Loans or Senior Debt Commitments in connection therewith remain outstanding, the Indenture Trustee shall vote in conformity with the Term Lenders with respect to Fundamental Modifications set forth in Sections 7.2(a)(ii)(A), 7.2(a)(ii)(B), 7.2(a)(ii)(C) ( Modifications to this Agreement pari passu Cash Waterfall |
(iii) | for any Fundamental Modifications set forth in Sections 7.2(a)(ii)(D), 7.2(a)(ii)(E), 7.1(a)(ii)(F) ( Modifications to this Agreement Modifications to Other Finance Documents Release of Collateral, Security Interests or Guarantees |
(iv) | for any Fundamental Modifications made at a time when no Loans or Senior Debt Commitments in connection therewith remain outstanding, the Indenture Trustee shall vote at the direction of the aggregate principal amount of the notes as set forth under the caption “Amendment, Supplement and Waiver.” |
(a) | the rights of holders of outstanding notes to receive payments in respect of the principal of, or interest or premium on, such notes when such payments are due from the trust referred to below; |
(b) | CCH’s obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment and money for security payments held in trust; |
(c) | the rights, powers, trusts, duties and immunities of the Indenture Trustee, and CCH’s and the Guarantors’ obligations in connection therewith; and |
(d) | the Legal Defeasance and Covenant Defeasance provisions of the indenture. |
(a) | CCH must irrevocably deposit with the Indenture Trustee, in trust, for the benefit of the holders of the notes, cash in US Dollars, non-callable government securities, or a combination of cash in US Dollars and non-callable Government securities, in amounts as will be sufficient, without reinvestment, in the opinion of, or as certified by, a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, or interest and premium on, the outstanding notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and CCH must specify whether the notes are being defeased to such stated date for payment or to a particular redemption date; |
(b) | in the case of Legal Defeasance, CCH has delivered to the Indenture Trustee an opinion of counsel from counsel who is reasonably acceptable to the Indenture Trustee confirming that (i) CCH has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the Notes Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel will confirm that, the holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; |
(c) | in the case of Covenant Defeasance, CCH has delivered to the Indenture Trustee an opinion of counsel from counsel who is reasonably acceptable to the Indenture Trustee confirming that the holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of |
such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; |
(d) | no Unmatured Indenture Event of Default or Indenture Event of Default has occurred and is Continuing on the date of such deposit (other than an Unmatured Indenture Event of Default or Indenture Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which CCH or any Guarantor is a party or by which CCH or any Guarantor is bound; |
(e) | such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the indenture) to which CCH or any of its Subsidiaries is a party or by which CCH or any of its Subsidiaries is bound; |
(f) | CCH must deliver to the Indenture Trustee an officer’s certificate stating that the deposit was not made by CCH with the intent of preferring the holders of notes over the other creditors of CCH with the intent of defeating, hindering, delaying or defrauding creditors of CCH or others; |
(g) | CCH must deliver to the Indenture Trustee an officer’s certificate stating that all conditions precedent set forth in clauses (a) through (f) of this paragraph have been complied with; and |
(h) | CCH must deliver to the Indenture Trustee an opinion of counsel (which opinion of counsel may be subject to customary assumptions, qualifications and exclusions), stating that all conditions precedent set forth in clauses (b), (c) and (e) of this paragraph have been complied with; provided |
(a) | The following matters require the consent of each holder of each series of notes affected thereby: |
(i) | reduce a noteholder voting threshold for consent in the indenture to an amendment, supplement or waiver; |
(ii) | reduce the principal of or change the fixed maturity of any note; |
(iii) | alter or waive any provisions or redemption payment with respect to the redemption of the notes (other than notice provisions); |
(iv) | reduce the rate of or change the time for payment of interest on any note; |
(v) | waive an Unmatured Indenture Event of Default or Indenture Event of Default in respect of the payment of principal of or premium, if any, or interest on the notes (except a rescission of acceleration of the notes by the holders of at least a majority in aggregate principal amount of the then outstanding notes and a waiver of the payment default that resulted from such acceleration); |
(vi) | changes to the currency of the notes; |
(vii) | make any change in the provisions of the indenture relating to waivers of past Unmatured Indenture Events of Default or the rights of holders of notes to receive payments of principal of or premium, if any, or interest on the notes; and |
(viii) | making any change in the preceding list of amendment and waiver provisions. |
(b) | Modifications, waivers and amendments of the indenture and any notes issued thereunder may be made without the consent of any holder of notes or any Rating Reaffirmation for certain specified purposes, as set forth in the indenture, including to: |
(i) | cure any ambiguity, omission, mistake, defect or inconsistency; |
(ii) | add covenants or defaults to the indenture; |
(iii) | modify the restrictive legends set forth on the face of the form of any series of notes or modify the forms of certification; |
(iv) | make any change that would provide any additional rights or benefits to noteholders, increase the interest rate applicable to the notes or that does not adversely affect the legal rights under the indenture of any holder of notes; |
(v) | conform the text of the indenture, the Note Guarantees or the notes to any provision under this “Description of Senior Notes” to the extent that such provision was intended to be a verbatim or substantially verbatim recitation of a provision of any of the foregoing; |
(vi) | add additional assets as Collateral; |
(vii) | provide for uncertificated notes in addition to or in place of certificated notes; |
(viii) | provide for assumption of an Obligor’s obligations by a successor pursuant to the indenture; |
(ix) | release a Guarantor from its Note Guarantee and terminate such Note Guarantee in accordance with the indenture; |
(x) | comply with the requirements of the SEC in order to effect or maintain the qualification of the indenture under the TIA; |
(xi) | add any Note Guarantee; |
(xii) | provide for the issuance of additional notes in accordance with the limitations set forth in the indenture as of the Notes Issue Date; or |
(xiii) | evidence the succession of a new Indenture Trustee for any series of notes. |
(a) | either: |
(i) | all notes theretofore authenticated and delivered (except lost, stolen or destroyed notes that have been replaced or paid and notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by CCH and thereafter repaid to CCH or discharged from such trust) have been delivered to the Indenture Trustee for cancellation; or |
(ii) | all such notes not theretofore delivered to the Indenture Trustee for cancellation (A) have become due and payable or (B) will become due and payable within one year or are to be called for redemption within one year under irrevocable arrangements for the giving of notice of redemption by the Indenture Trustee in the name, and at the expense, of CCH, and CCH or any Guarantor has irrevocably deposited or caused to be deposited with the Indenture Trustee cash, U.S. government obligations or a combination thereof in an amount sufficient, without reinvestment, in the opinion of, or as certified by, a nationally recognized investment bank, or |
appraisal firm or firm of independent public accountants, to pay and discharge the entire indebtedness on the notes, not theretofore delivered to the Indenture Trustee for cancellation, for principal of, premium, if any, and interest to the stated maturity or redemption date; |
(b) | no Unmatured Indenture Event of Default or Indenture Event of Default has occurred and is Continuing on the date of such deposit (other than an Unmatured Indenture Event of Default or Indenture Event of Default resulting from the borrowing of funds to be applied to such deposit); |
(c) | CCH has paid or caused to be paid all other sums then due and payable under the indenture by CCH; |
(d) | CCH has delivered irrevocable instructions to the Indenture Trustee under the indenture to apply the deposited money toward the payment of the notes at maturity or on the redemption date, as the case may be; and |
(e) | CCH has delivered to the Indenture Trustee an officer’s certificate and opinion of counsel to the effect that all conditions precedent under the indenture relating to the discharge of the notes have been complied with. |
(1) | upon deposit of the Global Notes, DTC will credit the accounts of the Participants designated by holders of the applicable series of outstanding Old Notes who exchange their outstanding Old Notes in this exchange offer with portions of the principal amount of the Global Notes; and |
(2) | ownership of these interests in the Global Notes will be shown on, and the transfer of ownership thereof will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interest in the Global Notes). |
(a) | any aspect of DTC’s records or any Participant’s or Indirect Participant’s records relating to or payments made on account of beneficial ownership interest in the Global Notes or for maintaining, supervising or reviewing any of DTC’s records or any Participant’s or Indirect Participant’s records relating to the beneficial ownership interests in the Global Notes; or |
(b) | any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants. |
(a) | DTC (i) notifies CCH that it is unwilling or unable to continue as depositary for the Global Notes or (ii) has ceased to be a clearing agency registered under the Exchange Act, and in each case CCH fails to appoint a successor depositary; |
(b) | CCH, at its option, notifies the Indenture Trustee in writing that it elects to cause the issuance of Certificated Notes (DTC has advised CCH that, in such event, under its current practices, DTC would notify its Participants of CCH’s request, but will only withdraw beneficial interests from a Global Note at the request of each DTC Participant); or |
(c) | there will have occurred and be Continuing an Indenture Event of Default with respect to the notes. |
(i) | substantially all assets of the Project Entities, including real and personal property whether owned on the issue date of the New Notes or thereafter acquired, but excluding Excluded Assets; |
(ii) | all contracts, agreements and documents, including the Material Project Agreements, the Permitted Hedging Instruments and insurance policies, and all of our rights thereunder; |
(iii) | all Accounts (but not Individual Senior Noteholder Secured Accounts); |
(iv) | payments of cash or other property; and |
(v) | all other real and personal property which is subject, from time to time, to the Security Interests or liens granted by the Finance Documents. |
(i) | termination of the CSAA; |
(ii) | in respect of Project Property constituting Collateral that is sold, leased or otherwise disposed of as permitted under and pursuant to the terms of each then-effective Senior Debt Instrument and other Finance Documents, provided |
(iii) | upon any Project Property becoming Excluded Assets; |
(iv) | at any time a Disbursement Account is closed as permitted by the CSAA, provided |
(v) | in respect of all cash, Financial Assets or other property credited to or held in any Senior Note Disbursement Account, investments made with or arising out of such funds and all proceeds of the foregoing, if any conditions to the disbursement of such cash, Financial Assets or other property to CCH have not been either satisfied or waived and such cash, Financial Assets or other property are required, by the terms of the relevant Senior Debt Instrument, to be returned to the relevant Senior Noteholders, upon such return; |
(vi) | in respect of proceeds of third-party liability insurance permitted to be paid to third parties or proceeds of builder’s risk insurance or marine cargo permitted to be paid directly to Bechtel; and |
(vii) | where directed by Requisite Secured Parties pursuant to the CSAA. |
• | Loan Facility Disbursement Account(s); |
• | Senior Note Disbursement Account(s); |
• | Equity Proceeds Account; |
• | Construction Account; |
• | Revenue Account; |
• | Operating Account; |
• | Senior Debt Service Reserve Account; |
• | Expansion Account(s) (if any); |
• | Insurance/Condemnation Proceeds Account; |
• | Mandatory Prepayment Senior Notes Account; |
• | Additional Proceeds Prepayment Account; and |
• | Permitted Finance Costs Reserve Account. |
(a) | The Initial Senior Debt must be disbursed directly into the Construction Account, except for (A) disbursements for the purpose of (x) paying interest and commitment fees during the Availability Period (which shall be disbursed by the Term Loan Facility Agent to the Term Lenders in accordance with the Term Loan Facility), (y) paying financing costs (including closing costs, upfront fees, original issue discount and other fees and expenses, commissions and discounts payable) to Facility Lenders, purchasers or underwriters of Senior Notes in each case in connection with the incurrence of Senior Debt and (z) mobilization payments under the EPC Contract (T3) and (B) disbursements used to fund the Senior Debt Service Reserve Account; |
(b) | any Senior Debt may be disbursed directly into the Construction Account (and used to pay Project Costs) or used directly to pay Permitted Development Expenditures or for other purposes as are permitted in the Senior Debt Instrument for such Senior Debt (including by transferring amounts of Senior Debt to another Account, such as the Operating Account, prior to application of the Senior Debt to the purpose for which it is permitted to be applied if such Account is generally used by the Securing Parties to pay such amounts); |
(c) | Senior Debt drawn for the purpose of ensuring CCH has a 75:25 Senior Debt/Equity Ratio at the Project Completion Date as required by the Common Terms Agreement may be applied directly for such purpose; |
(d) | Working Capital Debt may be applied directly for the purposes for which it was incurred (including by transferring amounts of Senior Debt to another Account, such as the Operating Account, prior to application of the Senior Debt to the purpose for which it is permitted to be applied if such Account is generally used by the Securing Parties to pay such amounts); and |
(e) | any disbursements of Replacement Senior Debt may be applied, in each case as permitted by each Senior Debt Instrument then in effect, directly to repay the Senior Debt that such Replacement Senior Debt is replacing and for other purposes for which such Replacement Senior Debt is permitted to be used under the Finance Documents. |
(a) | first less sub-accounts) and available for the payment of Operation and Maintenance Expenses; |
(b) | second |
(c) | third pro rata |
(d) | fourth |
(e) | fifth |
(f) | sixth |
(g) | seventh |
(h) | eighth |
(i) | ninth |
However, | for so long as any Loans under the Term Loan Facility are outstanding: |
(a) | CCH may pay Permitted Finance Costs pursuant to the fourth level of the cash waterfall above only on a CTA Payment Date; |
(b) | CCH shall make Permitted Payments pursuant to the seventh level of the cash waterfall only on a CTA Payment Date; and |
(c) | CCH shall make any voluntary prepayment of Loans or voluntary redemption of any Senior Notes, and payment of related Senior Debt Obligations, pursuant to the eighth level of the cash waterfall only on a CTA Payment Date (except for voluntary prepayments or redemptions made with proceeds of Replacement Senior Debt, which are not subject to this timing requirement). |
(a) | sums paid to settle any third-party liability shall be paid to the Person who incurred the liability (or to the insured party if such party previously paid the claim); |
(b) | Business Interruption Insurance Proceeds will be deposited in the Revenue Account and applied in accordance with the post-completion cash waterfall; |
(c) | all other Insurance Proceeds and Condemnation Proceeds shall be deposited in the Insurance/ Condemnation Proceeds Account; provided |
(d) | all Insurance Proceeds and Condemnation Proceeds deposited in the Insurance/Condemnation Proceeds Account shall be transferred to the Revenue Account and applied in accordance with the post- |
completion cash waterfall, provided |
(i) | is less than $75 million, such proceeds shall be transferred from the Insurance/Condemnation Proceeds Account, directly for use to repair or replace the relevant Project Property (or to reimburse amounts paid by Sponsor or a parent of CCH for the purpose of such repair or replacement) unless CCH certifies the failure to repair or replace such Project Property will not reduce the annual production capacity or the Project Facilities’ performance so that CCH would be unable to meet its obligations under the then-outstanding Senior Debt (in which case such proceeds are transferred to the Revenue Account); |
(ii) | exceeds $75 million but is less than $500 million, the proceeds shall be applied in accordance with clause (e) below; and |
(iii) | exceeds $500 million, then proceeds shall be applied in accordance with clause (f) below; provided |
(A) | the provisions of clause (g) below (and not clause (f) below) shall apply in the event of a Catastrophic Casualty Event resulting in a mandatory prepayment offer of the Senior Notes, to the extent an Indenture providing for such a prepayment is then outstanding; and |
(B) | if no Loans are outstanding at the time, then clause (e) below (and not clause (f) below) shall apply in respect of Insurance Proceeds or Condemnation Proceeds that exceed in the aggregate $500 million in the case where the event giving rise to such proceeds is not a Catastrophic Casualty Event resulting in a mandatory prepayment offer of the Senior Notes; |
(e) | proceeds required to be applied in accordance with this clause (e) shall be: |
(i) | transferred from the Insurance/Condemnation Proceeds Account directly to repair or replace the relevant Project Facilities (or to reimburse amounts paid by Sponsor or a parent of CCH for the purpose of such repair or replacement) upon receipt by the Security Trustee of (A) certification by CCH including: (1) that such transferred proceeds shall be used to repair or replace the relevant Project Facilities, (2) that such repair or replacement is expected to maintain the annual production capacity and performance of the Corpus Christi Terminal Facility in all material respects, (3) the affected Obligor has sufficient funds available to repair or replace the relevant Project Facilities to carry out all its obligations under this sub-clause (A) and to pay all Operation and Maintenance Expenses, Senior Debt Obligations and any other expenditure that is due or reasonably likely to be due during the period of repair and replacement, (4) such repair or replacement shall be completed within 180 days, or 270 days under certain circumstances, and (5) any Permits necessary for the repair or replacement have been obtained and are in full force and effect or are expected to be obtained in the ordinary course, and (B) certification by the Independent Engineer concurring with the certification by CCH referenced in the foregoing sub-clause (A)(2); and |
(ii) | in the event of failure by CCH or the Independent Engineer to make any of the foregoing certifications or concurrences within 90 days after the deposit in the Insurance/Condemnation Proceeds Account of the relevant Insurance Proceeds or Condemnation Proceeds, or to the extent such proceeds exceed $75 million after completion of a restoration taken in compliance with subclause (i) above, applied (A) in accordance with the provisions set forth in the Common Terms Agreement, (B) to pay the portion of such amount equal to the pro rata sub-clause (B) above; |
(f) |
(i) | For so long as the Loans are outstanding, on or before 90 days following the receipt of the Insurance/Condemnation Proceeds required to be applied in accordance with this clause (f), CCH shall deliver to the Security Trustee and Intercreditor Agent the certification described in sub-clause (e)(i)(A) above and a plan for the application of such proceeds and other funds available to the affected Obligor for the repair or replacement of the relevant Project Facilities. CCH shall include in such plan a detailed schedule, estimated costs, list of material contracts required, detailed account of sources of funds, scheduled completion date, and a schedule showing the source of funds for each Senior Debt Obligation payable through such scheduled completion date. |
(ii) | As soon as reasonably practicable, but in any event within 60 days following receipt of such plan, if the Security Trustee (based on instruction from the Intercreditor Agent) notifies CCH that the Requisite Intercreditor Parties conclude in their reasonable judgment (taking into account the advice, if any, of the Independent Engineer) that, in light of the nature of the loss, the reasonableness of the plan and the amount of Senior Debt Obligations then outstanding: |
(A) | it is reasonably unlikely that, after implementation of CCH’s plan and any ramp up or similar period, CCH shall be able to meet its Senior Debt Obligations; or |
(B) | it is reasonably likely that, after implementation of CCH’s plan and any ramp up or similar period, a Material Adverse Effect shall occur, then CCH shall apply such proceeds on a pro rata pro rata 60-day period, (II) to pay the portion of such amount equal to the pro rata sub-clause (II) above. |
(g) | Notwithstanding the foregoing provisions, in the event of a Catastrophic Casualty Event resulting in a mandatory prepayment offer of the Senior Notes in accordance with the terms of the applicable Indenture, CCH shall make a pro rata |
(h) | None of the foregoing shall preclude CCH from using equity to commence repairs or to replace property subject to such loss prior to receipt of Insurance Proceeds or Condemnation Proceeds. In such circumstances, nothing shall prevent the Obligors from applying the Insurance Proceeds or Condemnation Proceeds received and that are not required for the repair and replacement of property to reimburse documented amounts contributed to or paid on behalf of the affected Obligor by the Sponsor or a parent company of CCH for purposes of commencing any such repair or replacement to the extent that such Insurance Proceeds or Condemnation Proceeds could have been applied toward the repair and replacement directly; provided however, |
(i) | No later than 45 days following the end of each calendar quarter following the commencement of any repair or replacement carried out in connection with a loss for which Insurance Proceeds or Condemnation Proceeds exceed $75 million, CCH shall deliver to the Security Trustee, the Intercreditor Agent and the Independent Engineer a summary of the construction activities required in connection with any repair or replacement of the affected Project Facilities carried out during such calendar quarter, including descriptions of physical progress and incremental and cumulative |
expenditures, a description of and plan to remedy any material variations of the foregoing from the plan, current estimates of expenditures for the next quarter and completion date, and any material developments relating to the relevant repair or replacement. |
(j) | Any insurance proceeds that are not required to be used for the repair and replacement of the affected Project Property (or to reimburse therefor) or that are not required for the mandatory prepayment of any Senior Debt Obligations (including by transfer of the amount of the Pro Rata Payment to prepay Senior Debt held by Senior Creditors other than the Facility Lenders that would otherwise have been made as a prepayment to such Senior Creditors to a Mandatory Prepayment Senior Notes Account) shall be transferred to the Revenue Account and applied in accordance with the post-completion cash waterfall. |
(a) | We may deposit Equity Funding (which would be in addition to any Equity Funding contemplated in the Base Case Forecast for any Train then under construction) into an Expansion Equity Proceeds Account or an Expansion Construction Account to fund (directly or through a transfer from the Expansion Equity Proceeds Account to the Expansion Construction Account): (A) front-end engineering, development and design work, early works or pre-construction activities; (B) preparation and submission for Permits related to any such expansion; or (C) Permitted Development Expenditures. |
(b) | When permitted under the Senior Debt Instruments, CCH may deposit Equity Funding that is in addition to the Equity Funding contemplated in the Base Case Forecast in connection with the development of the first three Trains into an Expansion Equity Proceeds Account or an Expansion Construction Account (directly or through a transfer from the Expansion Equity Proceeds Account to the Expansion Construction Account) to fund an Expansion. |
(c) | Upon the incurrence of any Expansion Senior Debt, CCH may deposit such Expansion Senior Debt into an Expansion Disbursement Account for transfer into an Expansion Construction Account to fund an Expansion. |
(d) | After completion of an Expansion, CCH shall transfer funds from the Expansion Construction Account to the Revenue Account in a manner similar to such transfer in relation to the construction of the initial Project Facilities. |
(e) | Deposits and withdrawals of funds from the Expansion Disbursement Accounts, Expansion Equity Proceeds Accounts and Expansion Construction Accounts with respect to the Expansion shall be made consistent with the terms set forth in the CSAA for deposits and withdrawals of funds for Disbursement Accounts, Equity Proceeds Accounts and Construction Accounts, respectively, with appropriate changes to reflect the terms of the Expansion. |
(a) | modifying the ranking of Senior Debt Obligations; |
(b) | modifying any pro rata pro rata |
(c) | modifying the order of payments in the cash waterfalls provided for in the CSAA, including the order of payments in respect of any Enforcement Proceeds Account established by the Security Trustee; |
(d) | modifying this list of lender actions in any way adverse to any Senior Creditor Group or modifying any other term of the CSAA that expressly requires the consent or agreement of all Senior Creditor Group Representatives; |
(e) | modifying the definition of “Majority in Interest of the Senior Creditors,” “Initiating Percentage” or “Security Enforcement Action Representative” as used in the CSAA; and |
(f) | modifying any other thresholds for voting among Senior Creditor Groups in the CSAA in any way adverse to any Senior Creditor Group. |
(a) | any shortening of the stated maturity of the Senior Debt outstanding under any Senior Debt Instrument or Permitted Senior Debt Hedging Instrument; |
(b) | any increase in the stated rate of interest payable on the Senior Debt Obligations outstanding under any Senior Debt Instrument or Permitted Senior Debt Hedging Instrument; |
(c) | any shortening of the time for payment of interest due on any Senior Debt; |
(d) | modifying the currency of any Senior Debt; and |
(e) | modifying the list of lender actions set out in this paragraph in any way adverse to any Senior Creditor Group; provided provided further |
(a) | requiring the Security Trustee to enforce the CSAA and any other Finance Documents, either by judicial proceedings for the enforcement of the payment of Senior Debt Obligations and the enforcement of the Security Interests created under the Security Documents, the sale of the Collateral or any part thereof or otherwise or by the exercise of the power of entry and/or sale conferred pursuant to the Security Documents and the Direct Agreements; and |
(b) | directing the time, method and place of conducting any proceeding for any remedy available to the Security Trustee or exercising any trust or power conferred upon the Security Trustee hereunder or under any Security Document or Direct Agreement; provided |
(a) | requiring any Project Entity and/or Holdco to assemble all or part of the Collateral as directed by the Security Trustee and make it available to the Security Trustee at a place to be designated by the Security Trustee that is reasonably convenient to the Security Trustee and applicable Collateral Party; |
(b) | without notice, except as otherwise required by law, sell, assign, lease, license (on an exclusive or non-exclusive basis) or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Security Trustee’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Security Trustee may deem commercially reasonable; and |
(c) | exercising any other right or remedy of a secured creditor under applicable law, including, without limitation, the UCC, and all other rights under any Security Document or Direct Agreement. |
(a) | first |
(b) | second |
(c) | third |
(d) | fourth |
(e) | fifth |
(f) | sixth |
(g) | seventh sub-clauses (a) through (f) above, the payment of the remainder, if any, to the Project Entities or the Project Entities’ successors (or to Holdco or its applicable Affiliate, as the case may be), or as a court of competent jurisdiction in the State of New York may otherwise direct. |
• | CCL will sell and make available for delivery, and Endesa will take and pay for, cargoes of LNG with expected annual contracted cash flow from fixed fees of approximately $270 million from Endesa Spa No. 1 and approximately $140 million from Endesa SPA No. 2. |
• | Endesa will pay CCL a fixed fee per MMBtu of LNG (a portion of which is subject to annual adjustment for inflation) plus a variable fee per MMBtu of LNG based on Henry Hub. |
• | We refer to the fixed fee component of the price under our SPAs as the fee component that is applicable regardless of a cancellation or suspension of LNG cargo deliveries under the SPAs. Endesa has the right to cancel or suspend delivery of any cargoes of LNG scheduled for delivery upon timely advance notice, in which case Endesa will continue to be obligated to pay the fixed-fee charge per MMBtu (as adjusted for inflation) but will forfeit its right to receive these cargoes and will not be obligated to pay the variable component of the full contract sales price for these cargoes. |
• | We refer to the variable fee price component of the price under our SPAs as the fee component that is applicable only in connection with LNG cargo deliveries. The variable fee price component under the Endesa SPAs was sized at the time of entry into the Endesa SPAs with the intent to cover the costs of gas purchases and transportation and liquefaction fuel to produce the LNG to be sold under the Endesa SPAs. |
• | In the event that Endesa does not take all or part of a scheduled delivery, Endesa will pay CCL cover damages equal to (i) the contract price (which includes the fixed fee and variable fee) multiplied by the shortfall, minus minus plus |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay Endesa an amount equal to, for each MMBtu of shortfall: (i) the price incurred by Endesa for the purchase of a replacement quantity of LNG or Gas, or, in the event a replacement quantity cannot be purchased, the market price of LNG at such time at the cargo’s originally scheduled destination, minus plus plus minus |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (i) the Liquefaction Facilities or any directly connecting pipeline, including the Corpus Christi Pipeline or (ii) the liquefaction and loading facilities at the alternate source (but only for cargoes supplied from such alternate source); and |
• | any event that would constitute an event of force majeure under any agreement between CCL and operators of any directly connecting pipeline for gas transportation services; provided however |
• | loss of, accidental damage to, or inoperability of any Endesa LNG tanker; or |
• | events affecting the ability of Endesa LNG tankers to receive and transport LNG, |
• | an Endesa LNG tanker exceeding the allotted berth time for reasons not due to Endesa or otherwise excused; and |
• | an Endesa LNG tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the Endesa SPAs) one or more times and the interruptions from such force majeure aggregate 24 months during any 36-month period and result in the other party being prevented from making available or taking, as applicable, 50% or more of the annualized contract quantity of LNG during that period; |
(b) | the other party fails to make available, or take delivery of, as applicable, 50% of the cargoes scheduled during any 12-month period; |
(c) | a bankruptcy event (as defined in the Endesa SPAs) occurs with respect to the other party; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; or |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to the terminating party. |
• | CCL will sell and make available for delivery, and Naturgy will take and pay for, cargoes of LNG with expected annual contracted cash flow from fixed fees of approximately $270 million. |
• | Naturgy will pay CCL a fixed fee per MMBtu of LNG (a portion of which is subject to annual adjustment for inflation) plus a variable fee per MMBtu of LNG based on Henry Hub. |
• | Naturgy has the right to cancel or suspend delivery of any cargoes of LNG scheduled for delivery upon timely advance notice, in which case Naturgy will continue to be obligated to pay the fixed-fee charge per MMBtu (as adjusted for inflation) but will forfeit its right to receive these cargoes and will not be obligated to pay the variable component of the full contract sales price for these cargoes. |
• | In the event that Naturgy does not take all or part of a scheduled delivery, Naturgy will pay CCL cover damages equal to (i) the contract price (which includes the fixed fee and variable fee) multiplied by the shortfall, minus minus plus |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay Naturgy an amount equal to, for each MMBtu of shortfall: (i) the price incurred by Naturgy for the purchase of a replacement quantity of LNG or Gas, or, in the event a replacement quantity cannot be purchased, the market price of LNG at such time at the cargo’s originally scheduled destination, minus plus plus minus |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (i) the Liquefaction Facilities or any directly connecting pipeline, including the Corpus Christi Pipeline or (ii) the liquefaction and loading facilities at the alternate source (but only for cargoes supplied from such alternate source); and |
• | any event that would constitute an event of force majeure under any agreement between CCL and operators of any directly connecting pipeline for gas transportation services; provided however |
• | loss of, accidental damage to, or inoperability of any Naturgy LNG tanker; or |
• | events affecting the ability of Naturgy LNG tankers to receive and transport LNG, |
• | a Naturgy LNG tanker exceeding the allotted berth time, for reasons not due to Naturgy or otherwise excused; and |
• | a Naturgy LNG tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the Naturgy SPA) one or more times and the interruptions from such force majeure aggregate 24 months during any 36-month period and result in the other party being prevented from making available or taking, as applicable, 50% or more of the annualized annual contract quantity of LNG during that period; |
(b) | the other party fails to make available, or take delivery of, as applicable, 50% of the cargoes scheduled during any 12-month period; |
(c) | a bankruptcy event (as defined in the Naturgy SPA) occurs with respect to the other party; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; or |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to the terminating party. |
• | CCL will sell and make available for delivery, and Pertamina will take and pay for, cargoes of LNG with aggregate expected annual contracted cash flow from fixed fees of approximately $280 million. CCL commenced delivery of half of the volumes on June 1, 2019, upon occurrence of the Date of First Commercial Delivery for Train One, and commenced delivery of the remaining half of the volumes on May 1, 2020 upon occurrence of the Date of First Commercial Delivery for Train Two. |
• | Pertamina will pay CCL a fixed fee per MMBtu of LNG (a portion of which is subject to annual adjustment for inflation) plus a variable fee per MMBtu of LNG based on Henry Hub. |
• | Pertamina has the right to cancel or suspend delivery of all cargoes of LNG scheduled for delivery in a given month upon timely advance notice, in which case Pertamina will continue to be obligated to pay the fixed-fee charge per MMBtu (as adjusted for inflation) but will forfeit its right to receive these cargoes and will not be obligated to pay the variable component of the full contract sales price for these cargoes. |
• | In the event that Pertamina does not take all or part of a scheduled delivery, Pertamina will pay CCL cover damages equal to (i) the contract price (which includes the fixed fee and variable fee) multiplied by the shortfall, minus minus plus |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay Pertamina an amount equal to, for each MMBtu of shortfall: (i) the price incurred by Pertamina for the purchase of a replacement quantity of LNG or Gas, or, in the event a replacement quantity cannot be purchased, the market price of LNG at such time at the cargo’s originally scheduled destination, minus plus plus minus |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (x) the Liquefaction Facilities or any directly connecting pipeline, including the Corpus Christi Pipeline or (y) the liquefaction and loading facilities at the alternate source (but only for cargoes supplied from such alternate source); and |
• | any event that would constitute an event of force majeure under any agreement CCL has entered into that is necessary for CCL to carry out its obligations under the Pertamina SPA, or any agreement between CCL and operators of any directly connecting pipeline for gas transportation services; provided however |
• | a Pertamina LNG tanker exceeding the allotted berth time for reasons not due to Pertamina or otherwise excused; and |
• | a Pertamina LNG tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the Pertamina SPA) one or more times and the interruptions from such force majeure aggregate 24 months during any 36-month period and result in the other party being prevented from making available or taking, as applicable, 50% or more of the annualized annual contract quantity of LNG during that period; |
(b) | the other party fails to make available, or take delivery of, as applicable, 50% of the cargoes scheduled during any 12-month period; |
(c) | a bankruptcy event (as defined in the Pertamina SPA) occurs with respect to the other party; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; or |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to the terminating party. |
• | Iberdrola will pay CCL a fixed fee per MMBtu of LNG (a portion of which is subject to annual adjustment for inflation) plus a variable fee per MMBtu of LNG based on Henry Hub. |
• | CCL commenced delivery of half of the volumes under the Iberdrola SPA on June 1, 2019, upon occurrence of the Date of First Commercial Delivery for Train One as bridging volumes, and commenced delivery of the remaining half of the volumes under the Iberdrola SPA on May 1, 2020, upon occurrence of the Date of First Commercial Delivery for Train Two. |
• | Iberdrola has the right to cancel or suspend delivery of any cargoes of LNG scheduled for delivery upon timely advance notice, in which case Iberdrola will continue to be obligated to pay the fixed-fee charge per MMBtu (as adjusted for inflation) but will forfeit its right to receive these cargoes and will not be obligated to pay the variable component of the full contract sales price for these cargoes. |
• | In the event that Iberdrola does not take all or part of a scheduled delivery, Iberdrola will pay CCL cover damages equal to (i) the contract price (which includes the fixed fee and variable fee) multiplied by the shortfall, minus minus plus |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay Iberdrola an amount equal to, for each MMBtu of shortfall: (i) the price incurred by Iberdrola for the purchase of a replacement quantity of LNG or Gas, or, in the event a replacement quantity cannot be purchased, the market price of LNG at such time at the cargo’s originally scheduled destination, minus plus plus minus |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (i) the Liquefaction Facilities or any directly connecting pipeline, including the Corpus Christi Pipeline, or (ii) the liquefaction and loading facilities at the alternate source (but only for cargoes supplied from such alternate source); and |
• | any event that would constitute an event of force majeure under any agreement between CCL and operators of any directly connecting pipeline for gas transportation services; provided however |
• | an Iberdrola LNG tanker exceeding the allotted berth time for reasons not due to Iberdrola or otherwise excused; and |
• | an Iberdrola LNG tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the Iberdrola SPA) one or more times and the interruptions from such force majeure aggregate 24 months during any 36-month period and result in the other party being prevented from making available or taking, as applicable, 50% or more of the annualized annual contract quantity of LNG during that period; |
(b) | the other party fails to make available, or take delivery of, as applicable, 50% of the cargoes scheduled during any 12-month period; |
(c) | a bankruptcy event (as defined in the Iberdrola SPA) occurs with respect to the other party; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; or |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to the terminating party. |
• | Woodside will pay CCL a fixed fee per MMBtu of LNG (a portion of which is subject to annual adjustment for inflation) plus a variable fee per MMBtu of LNG based on Henry Hub. |
• | Woodside has the right to cancel or suspend delivery of any cargoes of LNG scheduled for delivery upon timely advance notice, in which case Woodside will continue to be obligated to pay the fixed-fee charge per MMBtu (as adjusted for inflation) but will forfeit its right to receive these cargoes and will not be obligated to pay the variable component of the full contract sales price for these cargoes. |
• | In the event that Woodside does not take all or part of a scheduled delivery, Woodside will pay CCL cover damages equal to (i) the contract price (which includes the fixed fee and variable fee) multiplied by the shortfall, minus minus plus |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay Woodside an amount equal to, for each MMBtu of shortfall: (i) the price incurred by Woodside for the purchase of a replacement quantity of LNG or Gas, or, in the event a replacement quantity cannot be purchased, the market price of LNG at such time at the cargo’s originally scheduled destination, minus plus plus minus |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (i) the Liquefaction Facilities or any directly connecting pipeline, including the Corpus Christi Pipeline, or (ii) the liquefaction and loading facilities at the alternate source (but only for cargoes supplied from such alternate source); and |
• | any event that would constitute an event of force majeure under any agreement between CCL and operators of any directly connecting pipeline for gas transportation services; provided however |
• | a Woodside LNG tanker exceeding the allotted berth time, for reasons not due to Woodside or otherwise excused; and |
• | a Woodside LNG tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the Woodside SPA) one or more times and the interruptions from such force majeure aggregate 24 months during any 36-month period and result in the other party being prevented from making available or taking, as applicable, 50% or more of the annualized annual contract quantity of LNG during that period; |
(b) | the other party fails to make available, or take delivery of, as applicable, 50% of the cargoes scheduled during any 12-month period; |
(c) | a bankruptcy event (as defined in the Woodside SPA) occurs with respect to the other party; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; or |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to the terminating party. |
• | EDF will pay CCL a fixed fee per MMBtu of LNG (a portion of which is subject to annual adjustment for inflation) plus a variable fee per MMBtu of LNG based on Henry Hub. |
• | EDF has the right to cancel or suspend delivery of any cargoes of LNG scheduled for delivery upon timely advance notice, in which case EDF will continue to be obligated to pay the fixed-fee charge per MMBtu (as adjusted for inflation) but will forfeit its right to receive these cargoes and will not be obligated to pay the variable component of the full contract sales price for these cargoes. |
• | In the event that EDF does not take all or part of a scheduled delivery, EDF will pay CCL cover damages equal to (i) the contract price (which includes the fixed fee and variable fee) multiplied by the shortfall, minus minus plus |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay EDF an amount equal to, for each MMBtu of shortfall: (i) the price incurred by EDF for the purchase of a replacement quantity of LNG or Gas, or, in the event a replacement quantity cannot be purchased, the market price of LNG at such time at the cargo’s originally scheduled destination, minus plus plus minus |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (i) the Liquefaction Facilities or any directly connecting pipeline, including the Corpus Christi Pipeline, or (ii) the liquefaction and loading facilities at the alternate source (but only for cargoes supplied from such alternate source); and |
• | any event that would constitute an event of force majeure under an agreement between CCL and operators of any directly connecting pipeline for gas transportation services; provided however |
• | an EDF LNG tanker exceeding the allotted berth time for reasons not due to EDF or otherwise excused; and |
• | an EDF LNG tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the EDF SPA) one or more times and the interruptions from such force majeure aggregate 24 months during any 36-month period and result in the other party being prevented from making available or taking, as applicable, 50% or more of the annualized annual contract quantity of LNG during that period; |
(b) | the other party fails to make available, or take delivery of, as applicable, 50% of the cargoes scheduled during any 12-month period; |
(c) | a bankruptcy event (as defined in the EDF SPA) occurs with respect to the other party; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; or |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to that party. |
• | EDP will pay CCL a fixed fee per MMBtu of LNG (a portion of which is subject to annual adjustment for inflation during certain time periods and which varies or is calculated differently in certain circumstances) plus a variable fee per MMBtu of LNG based on Henry Hub. |
• | EDP has the right to cancel or suspend delivery of any cargoes of LNG scheduled for delivery upon timely advance notice, in which case EDP will continue to be obligated to pay the fixed-fee charge per MMBtu (as adjusted for inflation) but will forfeit its right to receive these cargoes and will not be obligated to pay the variable component of the full contract sales price for these cargoes. |
• | The variable fee price component under the EDP SPA was sized at the time of entry into the EDP SPA with the intent to cover the costs of gas purchases and transportation and liquefaction fuel to produce the LNG to be sold under the EDP SPA. |
• | In the event that EDP does not take all or part of a scheduled delivery, EDP will pay CCL cover damages equal to (i) the contract price (which includes the fixed fee and variable fee) multiplied minus minus plus |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay EDP an amount equal to, for each MMBtu of shortfall: (i) the price incurred by EDP for the purchase of a replacement quantity of LNG or Gas, or, in the event a replacement quantity cannot be purchased, the market price of LNG at such time at the cargo’s originally scheduled destination, minus plus plus minus |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (i) the Liquefaction Facilities or any directly connecting pipeline, including the Corpus Christi Pipeline, or (ii) the liquefaction and loading facilities at the alternate source (but only for cargoes supplied from such alternate source); and |
• | any event that would constitute an event of force majeure under any agreement between CCL and operators of any directly connecting pipeline for gas transportation services; provided however |
• | an EDP LNG tanker exceeding the allotted berth time for reasons not due to EDP or otherwise excused; and |
• | an EDP tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the EDP SPA) one or more times and the interruptions from such force majeure aggregate 24 months during any 36-month period and result in the other party being prevented from making available or taking, as applicable, 50% or more of the annualized annual contract quantity of LNG during that period; |
(b) | the other party fails to make available, or take delivery of, as applicable, 50% of the cargoes scheduled during any 12-month period; |
(c) | a bankruptcy event (as defined in the EDP SPA) occurs with respect to the other party; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; or |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to the terminating party. |
• | PetroChina will pay CCL a contract sales price equal to a fixed fee per MMBtu of LNG (a portion of which is subject to annual adjustment for inflation) plus a variable fee per MMBtu of LNG based on Henry Hub. |
• | PetroChina has the right to cancel delivery of any cargoes of LNG scheduled for delivery upon timely advance notice, in which case PetroChina will continue to be obligated to pay the fixed-fee charge per MMBtu (as adjusted for inflation) but will forfeit its right to receive these cargoes and will not be obligated to pay the variable component of the full contract sales price for these cargoes. |
• | The variable fee price component under the PetroChina SPA was sized at the time of entry into the PetroChina SPA with the intent to cover the costs of gas purchases and transportation and liquefaction fuel to produce the LNG to be sold under the PetroChina SPA. |
• | In the event that PetroChina does not take all or part of a scheduled delivery, PetroChina will pay CCL: (A) if the sum of such shortfall quantity and all previously accrued shortfall quantities in the same contract year does not exceed a certain volume of LNG, or the sum of such shortfall quantity and all previously accrued shortfall quantities in the preceding four years does not exceed a certain volume of LNG, an amount equal to such shortfall quantity multiplied multiplied minus minus plus |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay PetroChina an amount equal to, for each MMBtu of shortfall, a percentage of the contract sales price. |
• | If CCL fails to pay PetroChina any amounts due under any invoice issued by PetroChina to CCL for a sum exceeding $20 million, PetroChina may by notice to CCL reduce amounts owed by PetroChina to CCL in by such unpaid amount. |
• | The “start date” for commencement of commercial deliveries under the PetroChina SPA is set as October 1, 2023. |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (i) the Liquefaction Facilities or any directly connecting pipeline, including the Corpus Christi Pipeline or (ii) the liquefaction and loading facilities at the alternate source (but only for cargoes supplied from such alternate source); and |
• | any event that would constitute an event of force majeure under any agreement between CCL and operators of any directly connecting pipeline for gas transportation services; provided however |
• | loss of, accidental damage to, or inoperability of any PetroChina LNG tanker; |
• | events affecting the ability of PetroChina LNG tankers (i) to reach the Liquefaction Facilities or any alternate source not arising from loss of, accidental damage to or inoperability of such LNG tanker or (ii) to receive and transport LNG; or |
• | the unavailability of various support services required for PetroChina LNG tankers to load and depart from the Liquefaction Facilities or facilities at an alternate supply source; |
• | a PetroChina LNG tanker exceeding the allotted berth time for reasons not due to PetroChina or otherwise excused; and |
• | a PetroChina LNG tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities or the facilities at the alternate source nominated by CCL and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities or such alternate facilities that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the PetroChina SPA) one or more times and the interruptions from such force majeure aggregate 24 months during any 36-month period result in the other party being prevented from making available or taking, as applicable, 50% or more of the annualized contract quantity of LNG during that period; |
(b) | the other party fails to make available, or take delivery of, as applicable (and such failure is not excused under the PetroChina SPA), 50% of the cargoes scheduled during any 12-month period; |
(c) | an insolvency event (as defined in the PetroChina SPA) occurs with respect to the other party; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; or |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to the terminating party. |
• | Trafigura will pay CCL a contract sales price equal to a fixed fee per MMBtu of LNG (a portion of which is subject to annual adjustment for inflation starting on January 1, 2022) plus a variable fee per MMBtu of LNG based on Henry Hub plus a variable liquefaction fee that will never be less than zero. |
• | Trafigura has the right to cancel delivery of any cargoes of LNG scheduled for delivery upon timely advance notice, in which case Trafigura will continue to be obligated to pay the fixed-fee charge per MMBtu (as adjusted for inflation starting on January 1, 2022) but will forfeit its right to receive these cargoes and will not be obligated to pay the variable components of the full contract sales price for these cargoes. |
• | The variable fee price component under the Trafigura SPA was sized at the time of entry into the Trafigura SPA with the intent to cover the costs of gas purchases and transportation and liquefaction fuel to produce the LNG to be sold under the Trafigura SPA. |
• | In the event that Trafigura does not take all or part of a scheduled delivery, Trafigura will pay CCL cover damages equal to (i) the contract sales price (which includes the fixed fee and variable fees) multiplied minus minus plus multiplied |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay Trafigura an amount equal to, for each MMBtu of shortfall: (i) the price incurred by Trafigura for the purchase of a replacement quantity of LNG or Gas, or, in the event a replacement quantity cannot be purchased, the market price of LNG at such time for delivery FOB in the U.S. Gulf Coast, minus plus minus multiplied |
• | The Date of First Commercial Delivery, which is referred to as the “start date” in the Trafigura SPA, occurred on March 26, 2021. |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (i) the Liquefaction Facilities (or the Sabine Pass facility under certain conditions) or any directly connecting pipeline thereto, or (ii) any other alternative LNG production facility or any directly connecting pipeline thereto, but only with respect to cargoes that are scheduled to be loaded at such production facility and which could not have been reasonably expected to be affected by such force majeure event at the time CCL decided to load cargoes at such production facility; and |
• | any event that would constitute an event of force majeure under any agreement between CCL, Sabine Pass Liquefaction, LLC, or the operator of the Liquefaction Facilities or the Sabine Pass facility, and |
operators of any directly connecting pipeline for gas transportation services; provided however |
• | a Trafigura LNG tanker exceeding the allotted berth time for reasons not due to Trafigura or otherwise excused; and |
• | a Trafigura LNG tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities or the Sabine Pass facility and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities or the Sabine Pass facility that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the Trafigura SPA) one or more times and the interruptions from such force majeure during any 36-month period result in the other party being prevented from making available or taking, as applicable, a quantity equal to or greater than the annualized contract quantity of LNG; |
(b) | the other party fails to make available, or take delivery of, as applicable (and such failure is not excused under the Trafigura SPA), 50% of the cargoes scheduled during any 12-month period; |
(c) | a bankruptcy event (as defined in the Trafigura SPA) occurs with respect to the other party or the other party’s guarantor; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to the terminating party; or |
(f) | the other party, if required to provide a guaranty, fails to provide or maintain a guaranty from an acceptable guarantor or the other party fails to comply with the requirements of the Trafigura SPA with respect to assignments and novations of the Trafigura SPA. |
• | CMI UK will pay CCL a contract sales price equal to a fixed fee per MMBtu of LNG (a portion of which is subject to annual adjustment for inflation) plus a variable fee per MMBtu of LNG based on Henry Hub. |
• | CMI UK has the right to cancel delivery of any cargoes of LNG scheduled for delivery upon timely advance notice, in which case CMI UK will continue to be obligated to pay the fixed-fee charge per MMBtu (as adjusted for inflation) but will forfeit its right to receive these cargoes and will not be obligated to pay the variable component of the full contract sales price for these cargoes. |
• | The variable fee price component under the DES-Linked SPA was sized at the time of entry into the DES-Linked SPA with the intent to cover the costs of gas purchases and transportation and liquefaction fuel to produce the LNG to be sold under the DES-Linked SPA. |
• | In the event that CMI UK does not take all or part of a scheduled delivery, CMI UK will pay CCL cover damages equal to (i) the contract sales price (which includes the fixed fee and variable fee) multiplied minus minus plus |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay CMI UK an amount equal to, for each MMBtu of shortfall, a percentage of the contract sales price (which includes the fixed fee and variable fee). |
• | The Date of First Commercial Delivery, which is referred to as the “start date” in the DES-Linked SPA, occurred on April 22, 2021. |
• | the PetroChina DES SPA, dated February 8, 2018, between PetroChina and CMI UK; |
• | the guaranty, dated May 8, 2018, provided by PCL to CMI UK in respect of PetroChina’s obligations to CMI UK under the PetroChina DES SPA (the “PetroChina Guarantee”); |
• | any payments made by, or for the account of, PetroChina or PCL to, or for the account of, PCL under the PetroChina DES SPA or the PetroChina Guarantee (the “PetroChina Payments”); |
• | all loss proceeds and insurance policies required to be maintained by CMI UK pursuant to the CMI Security Agreement except to the extent a lien has been granted over such proceeds by CMI UK under any of its trade finance facilities; |
• | a deposit account held at Mizuho Bank, Ltd. (“CMI Secured Account”); and |
• | proceeds and other rights related to the foregoing. |
• | termination of the CMI Security Agreement; |
• | upon any transfer, assignment or other disposition of the CMI Collateral not prohibited by the CMI Security Agreement to a person other than CCL; |
• | in respect of cash, financial assets and other property credited to or held in the CMI Secured Account, withdrawals made from the CMI Secured Account if the conditions therefore have been met in accordance with the CMI Security Agreement; and |
• | in respect of the PetroChina Payments (i) related to a cargo lifted from CCL but to be delivered or intended to be delivered to a person other than PetroChina, upon satisfaction of certain conditions related to diversion of such cargos, including the prepayment in cash or by an acceptable letter of credit of the amounts payable by CMI UK to CCL in respect of such cargo or (ii) prior to the start date, as such term is defined in the DES-Linked SPA. |
• | CMI UK is required to obtain and maintain at all times certain minimum insurance policies in accordance with the terms under the CMI Security Agreement. |
• | Without the consent of CCL (not to be unreasonably withheld), subject to certain conditions, CMI UK is not permitted to: (i) assign or transfer any interest under the PetroChina DES SPA or PetroChina Guarantee; (ii) amend, modify or waive the PetroChina DES SPA or PetroChina Guarantee; and (iii) consent to an assignment or transfer of any interest of the counterparty under the PetroChina DES SPA or the PetroChina Guarantee. |
• | CMI UK is required to notify CCL promptly of any event which could reasonably be expected to have a material effect on CMI Collateral or the security interests and is required to provide information with respect to the PetroChina DES SPA and PetroChina Guarantee, including: (i) on an annual basis, a summary of the annual delivery program under the PetroChina DES SPA and the corresponding annual delivery program under the DES-Linked SPA for the relevant year as well as prompt notice of changes to such annual delivery program if any; and (ii) prompt notice of a determination that a certain cargo is not intended to be delivered to PetroChina along with a request for a presumptive invoice to be issued by CCL to CMI UK with respect to the proposed quantity of LNG in such a cargo. |
• | CMI UK is required to manage its portfolio of transportation charter parties in accordance with sound industry practice that would be reasonably expected to permit CMI UK to meet its obligations under the DES-Linked SPA and the PetroChina DES SPA. |
• | Subject to certain exceptions, CMI UK is required to deliver any LNG cargos lifted from CCL under the DES-Linked SPA to PetroChina under the PetroChina DES SPA unless all of the following conditions are satisfied: (i) (A) CMI UK has paid into the CMI Secured Account (or provided an acceptable letter of credit) the full amount of due to CCL related to a CCL lifted cargo that is to be diverted or (B) CMI UK and a pre-qualified seller as specified under the CMI Security Agreement have executed an SPA pursuant to which an alternative LNG cargo will be delivered to PetroChina from such pre-qualified seller; (ii) CMI UK has not failed to make for delivery more than one cargo to PetroChina during the preceding 12 months; (iii) no event of default or potential event of default (as |
defined under the CMI Security Agreement) has occurred and is continuing thereunder; (iv) if LNG cargo from a pre-qualified seller is to be delivered to PetroChina, the LNG specifications of such cargo and the delivery schedule thereof would enable CMI UK to meet its obligations under the PetroChina DES SPA; and (v) CMI UK delivers to CCL a certification that each of the forgoing conditions is satisfied. |
• | First DES-Linked SPA, including contract sales price payments, payments of damages, fees and other expenses and any insurance claim payments due to CCL, each within the timeframe as specified under the CMI Security Agreement; and |
• | Second |
(a) | any matured or unmatured CCL termination right exists under the DES-Linked SPA; |
(b) | any matured or unmatured PetroChina termination right exists under the PetroChina DES SPA; |
(c) | CCL fails to receive any amounts due and payable to it under the DES-Linked SPA for 3 business days; |
(d) | CMI UK fails to satisfy one or more conditions under which it is allowed to divert cargo delivery to PetroChina; |
(e) | CMI UK materially breaches any other covenant in the CMI Security Agreement and fails to cure within 30 days after it becomes aware of such breach (which may be extended for another 30 days if CMI UK is diligently pursuing a remedy for such breach); |
(f) | any representation made by CMI UK to CCL is false when made and, if such falsity can be corrected or cured, CMI UK fails to correct or cure within 30 days after becoming aware of such falsity, which could reasonably be expected to have a material adverse effect (as defined under the CMI Security Agreement); |
(g) | a material provision in the CMI Security Agreement is repudiated by CMI UK, terminated (other than by reason of full discharge of CMI UK’s obligations pursuant to the terms of the CMI Security Agreement) or declared unenforceable by a court of competent jurisdiction, or any of the security interests over a material portion of the CMI Collateral cease to be validly perfected in favor of CCL, and in each case such defect is not cured within 5 business days; or |
(h) | CCL reasonably determines that CMI UK is unable to perform its obligations under the DES-Linked SPA and the PetroChina DES SPA, including based on CMI UK’s transportation arrangements or reasons of safety and security. |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (i) the Liquefaction Facilities or any directly connecting pipeline, including the Corpus Christi Pipeline or (ii) the liquefaction and loading facilities at the alternate source (but only for cargoes supplied from such alternate source); and |
• | any event that would constitute an event of force majeure under any agreement between CCL and operators of any directly connecting pipeline for gas transportation services; provided however DES-Linked SPA only to the extent that it meets the definition of force majeure in the DES-Linked LNG. |
• | loss of, accidental damage to, or inaccessibility or inoperability of a discharge terminal; or |
• | events affecting the ability of CMI UK LNG tankers to receive and transport LNG, |
• | a CMI UK LNG tanker exceeding the allotted berth time for reasons not due to CMI UK or otherwise excused; and |
• | a CMI UK LNG tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the DES-Linked SPA) one or more times and the interruptions from such force majeure aggregate 24 months during any 36-month period and result in the other party being prevented from making available or taking, as applicable, 50% or more of the annualized contract quantity of LNG during that period; |
(b) | the other party fails to make available, or take delivery of, as applicable, 50% of the cargoes scheduled during any 24-month period; |
(c) | an insolvency event (as defined in the DES-Linked SPA) occurs with respect to the other party; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; or |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to the terminating party. |
(a) | to cooperate to obtain the Non-FTA Authorization; |
(b) | to comply in all material respects with the terms of the Liquefaction Project’s FTA Authorization and Non-FTA Authorization, including using all reasonable efforts to meet requirements imposed on a holder of such Export Authorizations by the terms of such Export Authorizations or by the DOE from time to time; |
(c) | to take actions reasonably requested by the other party that may be necessary to enable such other party to comply in all material respects with any obligations it may have in respect of the Liquefaction Project’s FTA Authorization and Non-FTA Authorization; |
(d) | that, to the extent reasonably requested by CCL, CMI shall use commercially reasonable efforts to assist CCL to have CMI removed as a named holder of the Liquefaction Project’s FTA Authorization and Non-FTA Authorization; and |
(e) | to the extent that either of the Liquefaction Project’s FTA Authorization and Non-FTA Authorization are rescinded, suspended or revoked (in whole or in part), CCL shall take the lead in challenging or |
otherwise responding to such rescission, suspension or revocation, and, at CCL’s reasonable request, CMI shall use all commercially reasonable efforts to cooperate with CCL in steps being implemented by CCL that are reasonably designed to seek a reinstatement of such export authorization, including filing comments and responses to any proposed rescission, suspension or revocation, filing appropriate applications for rehearing and initiating judicial appeals of any final governmental authority action. |
• | CCP—CCL: CCL entered into a firm interstate transport agreement with CCP with a term of 20 years for a total daily transportation volume of up to 2,295,000 Dth, with various primary receipt points on the Gas Pipeline Company, LLC (“Transco”), Tennessee Gas Pipeline Company, LLC (“TGP”), Enterprise Products Partners L.P., Kinder Morgan Tejas Pipeline LLC (“Kinder Morgan Tejas”) and Natural Gas Pipeline Company of America LLC (“NGPL”) pipelines. The firm transportation service has a monthly negotiated reservation rate of $2.8172 per Dth. |
• | TGP—CCL: CCL entered into a firm interstate transport agreement with TGP with a term of 20 years for a total daily transportation volume of up to 300,000 Dth, with a primary delivery point at the interconnect between the Corpus Christi Pipeline and TGP’s Rate Zone 0. The firm transportation service has a monthly negotiated reservation rate of $9.125 per Dth. |
• | Kinder Morgan Texas Pipeline LLC (“Kinder Morgan”) and Kinder Morgan Tejas—CCL: CCL entered into a firm intrastate transport agreement with Kinder Morgan and Kinder Morgan Tejas with a term of 20 years for a total daily transportation volume of up to 250,000 Dth, with primary delivery points at the Corpus Christi Pipeline, NET Holdings Management, LLC’s header system near Aqua Dulce, Texas, the TGP pipeline, the NGPL Texok pipeline and the Tres Palacios pipeline. The firm transportation service has a monthly negotiated reservation rate of 250,000 multiplied by $0.15 multiplied by the number of days in the month. |
• | NGPL—CCL: CCL entered into a firm interstate transport agreement with NGPL with a term of 20 years for up to a total daily transportation volume of 385,000 Dth/d, with a primary delivery point at the interconnect of CCP and NGPL’s Zone 4 at Sinton, Texas. The firm transportation service has a monthly negotiated reservation rate of $10.5394 per Dth. CCL has also entered into a firm interstate transport agreement with NGPL with a term of 20 years for up to a total daily transportation volume of 300,000 Dth/d, with a primary delivery point at the interconnect of CCP and NGPL’s Zone 4 at Sinton, Texas. The firm transportation service for this agreement has a monthly negotiated reservation rate of $13.6875 per Dth. |
• | Transco—CCL: CCL entered into a firm interstate transport agreement with Transco with a term of twenty years for a total daily transportation volume of up to 400,000 Dth/d, with a primary delivery point at the interconnect between the Corpus Christi Pipeline and Transco’s Zone 1. The firm transportation service has a negotiated daily reservation rate of $.22 per Dth. |
• | CCL will sell and make available for delivery, and CMI UK will take and pay for, cargoes of LNG within an annual contract quantity. The annual contract quantity shall be the maximum quantity that CCL in good faith determines that CCL, acting as a reasonable and prudent operator, would be operationally prudent to commit to produce from the Liquefaction Facilities in excess of the quantities committed to customers under third party SPAs. CCL may consider any necessary restrictions in making such determination, including (i) limitations on the quantities of LNG that CCL or CMI UK is authorized to export or the aggregate number of LNG tankers that may use the Liquefaction Facilities, (ii) other delivery obligations and (iii) the potential liability if CCL is unable to make available to CMI UK the increased quantities of LNG. CCL is obligated to use reasonable efforts to maximize the annual contract quantity for each contract year. The annual contract quantity does not include commissioning cargoes offered by CCL to CMI UK. |
• | If CCL enters into a contingent SPA with a third party and if certain other conditions (discussed below) are satisfied, then the Amended CMI Base SPA’s ACQ for the then-current contract year and, if already scheduled, the subsequent contract year will be reduced by a quantity equal to the quantity CCL is obligated to deliver under such contingent SPA during such contract years. The Amended CMI Base SPA provides that this reduction is triggered upon the occurrence of the following conditions being satisfied: (i) CCL has entered into a contingent SPA with a third party, and such third party has entered into an SPA to purchase LNG from CMI UK (a “Downstream SPA”) and the Downstream SPA has terminated; (ii) the contingent SPA with CCL is conditioned upon conditions precedent including, (A) termination of the Downstream SPA for certain reasons including a CMI UK bankruptcy, failure to pay or failure to make available certain cargoes and (B) termination of the Amended CMI Base SPA or reduction in the ACQ for the then-current contract year and, if already scheduled, the subsequent contract year under the Amended CMI Base SPA; (iii) the quantities to be sold during all contract years under the contingent SPA do not exceed the quantities to be sold during all contract years under the Downstream SPA, subject to certain conditions and adjustments; (iv) all conditions precedent under the contingent SPA have been satisfied or waived, other than a condition precedent requiring reduction in ACQ quantities under the Amended CMI Base SPA; and (v) certain other conditions are met. If such conditions are met, then the ACQ for the then-current contract year and, if already scheduled, the subsequent contract year under the Amended CMI Base SPA will be reduced by the contract quantity CCL becomes obligated to make available to the customer under such contingent SPA during such contract years. |
• | CMI UK will pay CCL a fixed fee of $3.00 per MMBtu plus a variable fee equal to 115% of the Henry Hub price for the LNG made available to CMI UK under the SPA. |
• | CMI UK may, without charge, elect to suspend delivery of any cargoes of LNG (other than commissioning cargoes) scheduled for delivery upon timely advance notice. |
• | In the event that CMI UK does not take all or part of a scheduled delivery, CMI UK will pay CCL cover damages equal to (i) the contract price (which includes the fixed fee and variable fee) multiplied by the shortfall, minus (ii) proceeds of any mitigation sale, minus (iii) cost savings resulting from any mitigation sale, plus (iv) any additional costs resulting from any mitigation sale. |
• | To the extent CCL does not make available all or part of a scheduled delivery, CCL will pay CMI UK an amount equal to, for each MMBtu of shortfall: (a) the price incurred by CMI UK for the purchase of a replacement quantity of LNG or Gas, or, in the event a replacement quantity cannot be purchased, the market price of LNG at such time at the cargo’s originally scheduled destination, minus (b) the contract sales price under the Amended CMI Base SPA, plus (c) costs (including transportation costs) incurred by CMI UK due to such shortfall, plus (d) costs incurred by CMI UK associated with idling an LNG tanker scheduled to load the shortfall quantity, minus (e) cost savings realized by CMI UK due to the shortfall. If, as a result of CCL’s failure to make available a scheduled delivery, a partial cargo is made available to CMI UK but deemed unsafe for loading and/or transporting and rejected by the master of the relevant CMI UK LNG tanker, then such quantity will be included in the shortfall calculation. |
• | If CCL expands, modifies or plans to expand or modify the Liquefaction Facilities to provide new products (besides LNG) or new services (besides liquefaction services) to customers, then prior to CCL offering such products or services to any other person, CCL shall offer such products or services to CMI UK. |
• | Prior to making a positive final investment decision for any Train, CCL shall not enter into or amend any third party LNG SPA that has such Train as its designated Train if (i) doing so would bring total SPA commitments for that Train to greater than 182,500,000 MMBtu for any contract year or (ii) such third-party LNG SPA requires or allows the sale of LNG thereunder prior to the date of first commercial delivery of the designated Train under such third party LNG SPA. However, the following agreements are exempt from the foregoing restriction: (i) the Iberdrola SPA, (ii) the Pertamina SPA, (iii) the EDF SPA, and (iv) any other third party LNG SPA consented to by CMI UK in writing. |
• | After making a positive final investment decision for any Train, CCL may enter into or amend a third party LNG SPA with such Train as its designated Train only to the extent that the additional annual contract quantities to be sold by CCL pursuant to such agreement or amendment directly or indirectly replace in whole or in part the annual contract quantity of any third party LNG SPA with the same designated Train. |
• | CCL may not offer or commit to sell LNG from the Liquefaction Facilities to any third party except (a) pursuant to an LNG SPA that specifies a designated Train in compliance with the foregoing pre- and post-final investment decisions contracting restrictions, (b) as permitted pursuant to the Amended CMI Base SPA, or (c) to the extent such LNG becomes available because another buyer of CCL fails to take LNG and CCL has a contractual obligation to mitigate losses. |
• | loss of, accidental damage to, or inaccessibility to or inoperability of (x) the Liquefaction Facilities or any directly connecting pipeline, including the Corpus Christi Pipeline or (y) the liquefaction and loading facilities at the alternate source (but only for cargoes supplied from such alternate source); and |
• | any event that would constitute an event of force majeure under any agreement between CCL and operators of any directly connecting pipeline for gas transportation services; provided however |
• | a CMI UK LNG tanker exceeding the allotted berth time for reasons not due to CMI UK or otherwise excused; and |
• | a CMI UK LNG tanker being delayed beyond 24 hours after notice of readiness is effective in berthing at the Liquefaction Facilities and/or commencement of LNG transfer due to an event occurring at the Liquefaction Facilities that is not otherwise excused. |
(a) | the other party declares force majeure (as defined and provided in the Amended CMI Base SPA) one or more times and the interruptions from such force majeure aggregate 24 months during any 36-month period and result in the other party being prevented from making available or taking, as applicable, 50% or more of the annualized annual contract quantity of LNG during that period; |
(b) | the other party fails to make available, or take delivery of, as applicable, 50% of the cargoes scheduled during any 12-month period; |
(c) | a bankruptcy event (as defined in the Amended CMI Base SPA) occurs with respect to the other party; |
(d) | the other party fails to pay, or cause to be paid when due, any amounts in the aggregate that are in excess of $30 million for a period of 10 days or more following the due date; or |
(e) | the other party breaches its representation and warranty regarding business practices or causes the terminating party to violate any laws applicable to the terminating party. |
(a) | the abandonment, suspension or cessation of all or substantially all of the activities related to the Development or the abandonment, suspension or cessation of operations the Project Facilities, in each case, for a period in excess of 60 consecutive days (other than as a result of force majeure so long as CCH is diligently attempting to restart the Development or the Project Facilities); provided that, if this is not accompanied by a formal, public announcement by CCH of its intentions as set forth in clause (b) below, such abandonment, suspension or cessation shall not have occurred unless, within 45 days following notice to CCH from the Security Trustee (who may be instructed by any Senior Creditor Group to deliver such notice) requesting CCH to deliver a certificate to the effect that it will resume construction or operation as soon as is commercially reasonable, CCH has not delivered such certificate or resumed such activities or, if such certificate is delivered, CCH has nevertheless not resumed such activities within 90 days following receipt of the notice from the Security Trustee; |
(b) | a formal, public announcement by CCH of a decision to abandon, cease or indefinitely defer or suspend the Development for any reason; or |
(c) | CCH shall make any filing with FERC giving notice of the intent or requesting authority to abandon the Development for any reason. |
(a) | an expiration date no earlier than 364 days following its issuance date; and |
(b) | allows the Security Trustee to make a drawdown of up to the stated amount in each of the circumstances described in Section 4.9(d) ( Acceptable Debt Service Reserve LC |
(a) | the sale, lease, conveyance or other disposition of any assets or rights; provided |
(b) | the issuance of Equity Interests in any of CCH’s Restricted Subsidiaries or the sale of Equity Interests in any of its Subsidiaries. |
(i) | any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $50 million; |
(ii) | a transfer of assets between or among CCH and/or its Restricted Subsidiaries; |
(iii) | dispositions in compliance with any applicable court or governmental order; |
(iv) | an issuance of Equity Interests by a Restricted Subsidiary to CCH or to any other Restricted Subsidiary; |
(v) | the sale, lease or other disposition of (A) products, services, inventory or accounts receivable in the ordinary course of business or (B) obsolete, superfluous or replaced assets, or assets that are not, or cease to be, necessary for the construction and operation of the Development; |
(vi) | the sale, transfer or other disposition of cash or Authorized Investments; |
(vii) | the settlement, release, waiver or surrender of contract, tort or other claims in the ordinary course of business or a grant of a Lien not prohibited by the indenture; |
(viii) | a Restricted Payment made in accordance with the indenture, a Permitted Investment or a Permitted Payment; |
(ix) | the sale or other disposition of LNG (or other commercial products); |
(x) | the sale of Gas in the ordinary course of business; |
(xi) | the sale or other disposition of Permitted Investments; |
(xii) | the sale of liquefaction and other services in the ordinary course of business; |
(xiii) | the sale of any LNG related to additional liquefaction trains developed by CCH; |
(xiv) | the transfer or novation of Permitted Hedging Instruments in accordance with the Finance Documents; |
(xv) | conveyance of gas interconnection or metering facilities to gas transmission companies and conveyance of electricity substations to electricity providers pursuant to its electricity purchase arrangements for operating the Project Facilities; |
(xvi) | any transaction or series of transactions permitted as described under the captions “Description of Senior Notes—Covenants Applicable to the Notes—Customary Lifting and Balancing Arrangements” or “Description of Senior Notes—Covenants Applicable to the Notes—Sharing of Project Facilities”; |
(xvii) | any single transaction or series of related transactions pursuant to the terms of an agreement existing on the Notes Issue Date; and |
(xviii) | sale, lease, conveyance or other disposition of any assets or rights pursuant to Sharing Arrangements permitted as described under the caption “Description of Senior Notes—Covenants Applicable to the Notes—Sharing of Project Facilities.” |
(a) | direct obligations of, or obligations the principal and interest on that are unconditionally guaranteed by, the United States of America (or any instrumentality thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof; |
(b) | investments in marketable general 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 one year from the date of acquisition thereof and having, at such date of acquisition, a credit rating of “A” or higher from S&P or from Moody’s (or if at such time neither is issuing ratings, then a comparable rating of such other nationally recognized rating agency as shall be approved by the Security Trustee in its reasonable judgment); |
(c) | commercial paper or tax exempt obligations having one of the two highest ratings obtainable from Moody’s or S&P (or if at such time neither is issuing ratings, then a comparable rating of such other nationally recognized rating agency as shall be approved by the Security Trustee in its reasonable judgment) and, in each case, maturing within one year of acquisition thereof; |
(d) | investments in certificates of deposit, banker’s acceptances and time deposits maturing or putable within one year from the date of acquisition thereof issued or guaranteed or placed with, and money market deposit accounts issued or offered by, any domestic office of (i) a commercial bank organized under the laws of the United States of America or any state thereof or (ii) a licensed branch of a foreign bank organized under the laws of any member country of the Organization for Economic Co-Operation and Development, in either case, that has a combined capital and undivided surplus and undivided profits of at least $500 million; |
(e) | fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) of this definition and entered into with a financial institution satisfying the criteria described in clause (d) of this definition; or |
(f) | money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 (or any successor rule) under the Investment Company Act of 1940; (ii) are rated either AAA by S&P and Aaa by Moody’s or |
at least 95% of the assets of which constitute Authorized Investments described in clauses (a) through (e) of this definition and/or U.S. Dollars; and (iii) have portfolio assets of at least $500 million. |
(a) | with respect to any Person that is a corporation, the chairman, president, senior vice president, vice president, chief financial officer, chief operating officer, treasurer, assistant treasurer, attorney-in-fact, |
(b) | with respect to any Person that is a partnership, the chairman, president, senior vice president, vice president, chief financial officer, chief operating officer, treasurer, assistant treasurer, attorney-in-fact, |
(c) | with respect to any Person that is a limited liability company, the chairman, president, senior vice president, chief financial officer, chief operating officer, vice president, treasurer, assistant treasurer, attorney-in-fact, |
(a) | such Person shall file a voluntary petition in bankruptcy, or shall file any petition or answer or consent seeking any reorganization, arrangement, adjustment, composition, insolvency, liquidation, receivership, dissolution or similar relief for itself under the Bankruptcy Code or any present or future applicable federal, state or other statute or law relating to bankruptcy, insolvency, reorganization or other relief for debtors generally, or shall apply for or consent to the appointment of any trustee, receiver, conservator or liquidator of such Person or of all or any substantial part of its properties; |
(b) | a case or other proceeding shall be commenced against such Person in a court of competent jurisdiction without the consent or acquiescence of such Person seeking any reorganization, arrangement, adjustment, composition, insolvency, liquidation, receivership, dissolution or similar relief with respect to such Person or its debts under the Bankruptcy Code or any present or future applicable federal, state or other statute or law relating to bankruptcy, insolvency, reorganization or other relief for debtors generally, or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed or unstayed for a period of 60 consecutive days; |
(c) | a court of competent jurisdiction shall enter an order, judgment or decree approving a petition with respect to such Person seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the Bankruptcy Code, or any other present or future applicable federal, state or other statute or law relating to bankruptcy, insolvency, reorganization or other relief for debtors, and such Person shall consent to the entry of such order, judgment or decree or such order, judgment or decree shall remain undischarged, unvacated or unstayed for 90 days (whether or not consecutive) from the date of entry thereof, or any trustee, receiver, conservator or liquidator of such Person or of all or any substantial part of its property shall be appointed without the consent of such Person and such appointment shall remain undischarged, unvacated and unstayed for an aggregate of 90 days (whether or not consecutive); |
(d) | such Person shall admit in writing its inability to pay its debts as they mature or shall generally not be paying its debts as they become due; |
(e) | such Person shall make a general assignment for the benefit of creditors or take any other similar action for the protection or benefit of creditors; or |
(f) | such Person shall take any corporate or partnership action for the purpose of effecting any of the foregoing. |
(a) | with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board; |
(b) | with respect to a partnership, the board of directors, members or managers of the general partner of the partnership; |
(c) | with respect to a limited liability company, the managing member or members or managers or any controlling committee of managing members or managers thereof; and |
(d) | with respect to any other Person, the board, managers or committee of such Person serving a similar function. |
(a) | in the case of Indenture Historical DSCR, the period commencing 12 months prior to, and ending on, the applicable Calculation Date; provided |
(b) | in the case of Indenture Projected Fixed DSCR, the period commencing on the first day after the applicable Calculation Date through the following 12 month period (with such ratio being calculated on a pro forma |
(a) | in the case of a corporation, corporate stock or shares in the capital of such corporation; |
(b) | in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; |
(c) | in the case of a partnership or limited liability company, partnership interests (whether general or limited or membership interests (however designated)); and |
(d) | any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person; provided |
(a) | fees and other amounts received by CCL under the LNG SPAs; |
(b) | earnings on funds held in the Secured Accounts (excluding interest and investment earnings that accrue on the amounts on deposit in any of the Senior Debt Service Reserve Account or any account established to prefund interest on any Senior Debt, if any, in any case, that are not transferred to the Revenue Account pursuant to the CSAA); |
(c) | any amounts deposited in the Insurance/Condemnation Proceeds Account to the extent applied to the payment of Operation and Maintenance Expenses or Project Costs in accordance with Article 5 ( Insurance and Condemnation Proceeds and Performance Liquidated Damages |
(d) | all cash paid to the Obligors during such period as Business Interruption Insurance Proceeds; |
(e) | proceeds from the transfer, sale or disposition of assets or rights of the Obligors in the ordinary course of business in accordance with Section 12.17 ( Sale of Project Property sub-clause (iii) below) to the extent such proceeds have been or will be used to pay Operation and Maintenance Expenses; |
(f) | amounts paid under any Material Project Agreement; |
(g) | amounts received under Permitted Hedging Instruments other than in respect of interest rates; |
(h) | solely with respect to calculation of the Historical DSCR, (I) all cash paid to CCH during the applicable period from any direct or indirect owner of CCH by way of Equity Funding (in each case as otherwise permitted pursuant to the terms of the Finance Documents), and (II) in the case of the first Restricted Payment made pursuant to Section 11 ( Restricted Payments |
(i) | with respect to the calculation of Fixed Projected DSCR for any purpose other than such calculation under Section 11 ( Restricted Payments |
(i) | all amounts required to be deposited in the Insurance/Condemnation Proceeds Account used to reimburse Equity Funding; |
(ii) | proceeds of third-party liability insurance; |
(iii) | proceeds of the sale of assets permitted by Section 12.17(c) or (l) ( Sale of Project Property |
(iv) | proceeds of Senior Debt and other Indebtedness (and corresponding amounts received by the Obligors pursuant to any guarantees) permitted by Section 12.14 ( Limitation on Indebtedness |
(v) | except as provided in clause (h) above, Equity Funding received from Cheniere or any direct or indirect holders of equity interests of CCH; and |
(vi) | any cash deposited into the Additional Proceeds Prepayment Account; provided |
(1) | include (instead of sub-clause (h) above): |
(x) | solely with respect to calculation of Indenture Historical DSCR, (I) all cash paid to CCH and/ or its Restricted Subsidiaries during the applicable period from any direct or indirect owner |
of CCH and/or its Restricted Subsidiaries by way of equity contribution or Subordinated Debt (as permitted pursuant to the terms of the Senior Debt Instruments then in effect) and (II) in the case of the first Restricted Payment made after the expiry or termination of any period during which the making of Restricted Payments has been restricted, any cash then on deposit in the Secured Accounts (without double counting any other amounts of Cash Flow taken into account in the calculation of the Indenture Historical DSCR); and |
(y) | with respect to calculation of Indenture Projected Fixed DSCR for any purpose other than such calculation under clause (b) of the covenant under the caption “Description of Senior Notes—Covenants Applicable to the Notes—Restricted Payments,” any cash projected to be on deposit in the Secured Accounts at the commencement of such period as a result of a restriction on making of Restricted Payments applicable prior to such period; and |
(2) | exclude (instead of sub-clauses (iii) and (iv) above): |
(x) | proceeds from the sale, lease or other disposition of obsolete, superfluous or replaced assets, or assets that are not, or cease to be, necessary for the construction and operation of the Development, as described in sub-clause (B) of clause (v) under the definition of “Asset Sale” hereunder and dispositions of Project Property if an Obligor replaces such Project Property within 180 days following such disposition or has obtained a commitment to replace such Project Property within 180 days following such disposition and replaces such Project Property within 270 days following such disposition; and |
(y) | proceeds of Senior Debt and other Indebtedness (and corresponding amounts received by the Obligors pursuant to any guarantees) permitted by the indenture as described under the caption “Description of Senior Notes—Covenants Applicable to the Notes—Limitation on Indebtedness” other than amounts received under Permitted Hedging Instruments included under clause (g) above. |
(a) | the Construction Agreement for the Corpus Christi Pipeline Project, dated as of November 10, 2016, between Cheniere Corpus Christi Pipeline, L.P. and Associated Pipe Line Contractors, Inc.; |
(b) | the Construction Agreement for the Corpus Christi Pipeline Project, dated as of November 3, 2016, between Cheniere Corpus Christi Pipeline, L.P. and Ref-Chem, L.P.; and |
(c) | the Construction Agreement for the Corpus Christi Pipeline Project, dated as of November 4, 2016, between Cheniere Corpus Christi Pipeline, L.P. and Sunland Construction, Inc. |
(a) | with respect to any Loan Facility Declared Default, Indenture Declared Event of Default or other comparable event of default under any other Senior Debt Instrument, that such default has occurred without the need for declaration, or been declared by required Senior Creditor action, in each case in conformity with the requirements of the Common Terms Agreement or such other Senior Debt Instrument, as the case may be, and no Cessation Notice shall have been given with respect thereto; |
(b) | with respect to any Unmatured Loan Facility Event of Default, Unmatured Indenture Event of Default or other unmatured default under any other Senior Debt Instrument, that such unmatured default has occurred and has not been waived or cured; and |
(c) | with respect to any Loan Facility Event of Default, Indenture Event of Default or other event of default under any other Senior Debt Instrument, that such event of default has occurred and has not been declared, waived or cured; |
(a) | with respect to an Indenture Declared Event of Default, that such default has occurred without the need for declaration, or been declared by the Indenture Trustee in conformity with the requirements of the indenture, and no Cessation Notice shall have been given with respect thereto; |
(b) | with respect to any Unmatured Indenture Event of Default, that such unmatured default has occurred and has not been waived or cured; and |
(c) | with respect to any Indenture Event of Default, that such event of default has occurred and has not been declared, waived or cured. |
(a) | the Direct Agreement (Pertamina SPA), dated as of May 13, 2015, among Pertamina, CCL and Société Générale; |
(b) | the Direct Agreement (Endesa SPA No. 1), dated as of May 13, 2015, among Endesa, CCL and Société Générale; |
(c) | the Direct Agreement (Endesa SPA No. 2), dated as of May 13, 2015, among Endesa, CCL and Société Générale; |
(d) | the Direct Agreement (Iberdrola SPA), dated as of May 13, 2015, among Iberdrola, CCL and Société Générale; |
(e) | the Direct Agreement (Iberdrola Guaranty), dated as of December 23, 2020, among Iberdrola, S.A., CCL and Société Générale; |
(f) | the Direct Agreement (Naturgy SPA), dated as of May 13, 2015, among Gas Natural Fenosa, CCL and Société Générale; |
(g) | the Direct Agreement (Naturgy Guaranty), dated as of May 13, 2015, among Gas Natural SDG S.A., CCL and Société Générale; |
(h) | the Direct Agreement (Woodside SPA), dated as of May 13, 2015, among Woodside, CCL and Société Générale; |
(i) | the Direct Agreement (Woodside Guaranty), dated as of May 13, 2015, among Woodside, CCL and Société Générale; |
(j) | the Direct Agreement (EDF SPA), dated as of May 13, 2015, among EDF, CCL and Société Générale; |
(k) | the Acknowledgment and Consent Agreement with Lender, dated as of May 13, 2015, among Bechtel Global Energy, Inc., CCH, the Guarantors, Mizuho Bank, Ltd. and Société Générale; |
(l) | the Acknowledgment and Consent Agreement with Lender, dated as of May 13, 2015, among Bechtel, CCH, the Guarantors, Mizuho Bank, Ltd. and Société Générale; |
(m) | the Direct Agreement (CEI Equity Contribution Agreement), dated as of May 13, 2015, among the Sponsor, CCH and Société Générale; |
(n) | the Direct Agreement, dated as of May 13, 2015, among CCL, ConocoPhillips and Société Générale; |
(o) | the Direct Agreement (CCP Precedent Agreement), dated as of May 13, 2015, among CCP, CCL and Société Générale; |
(p) | the Direct Agreement (CCL Management Services Agreement), dated as of May 13, 2015, among Cheniere Energy Shared Services, Inc., CCL and Société Générale; |
(q) | the Direct Agreement (CCP Management Services Agreement), dated as of May 13, 2015, among Cheniere Energy Shared Services, Inc., CCP and Société Générale; |
(r) | the Direct Agreement (CCL O&M Agreement), dated as of May 13, 2015, among Cheniere LNG O&M Services, LLC, CCL and Société Générale; |
(s) | the Direct Agreement (CCP O&M Agreement), dated as of May 13, 2015, among Cheniere LNG O&M Services, LLC, CCP and Société Générale; |
(t) | the Direct Agreement (Gas and Power Supply Services Agreement), dated as of May 13, 2015, among Cheniere Energy Shared Services, Inc., CCL and Société Générale; |
(u) | the Direct Agreement (Export Authorization Letter), dated as of May 13, 2015, among CCL, Cheniere Marketing, LLC and Société Générale; |
(v) | the Direct Agreement (TGP Precedent Agreement), dated as of May 13, 2015, among CCL, TGP and Société Générale; |
(w) | the Direct Agreement (NGPL Precedent Agreement), dated as of June 29, 2015, between Natural Gas Pipeline Company of America LLC, CCL and Société Générale; |
(x) | the Direct Agreement (NGPL Precedent Agreement), dated as of March 21, 2018, between Natural Gas Pipeline Company of America LLC, CCL and Société Générale; |
(y) | the Direct Agreement, dated as of October 21, 2015, between GE Oil & Gas, Inc., CCL, and Société Générale; |
(z) | the Direct Agreement, dated as of December 16, 2015, between Transcontinental Gas Pipe Line Company, LLC, CCL and Société Générale; |
(aa) | the Direct Agreement in respect of the Construction Agreement, dated as of November 30, 2016, between Associated Pipe Line Contractors, Inc. and Société Générale, as Security Trustee, and acknowledged and agreed by CCP; |
(bb) | the Direct Agreement in respect of the Construction Agreement, dated as of November 29, 2016, between Ref-Chem, L.P. and Société Générale, as Security Trustee, and acknowledged and agreed by CCP; |
(cc) | the Direct Agreement in respect of the Construction Agreement, dated as of November 15, 2016, between Sunland Construction, Inc. and Société Générale, as Security Trustee, and acknowledged and agreed by CCP; and |
(dd) | the agreements described in Section 3.4 ( Direct Agreements Direct Agreement |
(a) | any assets or property rights of the Obligors of any nature to the extent that any applicable law or regulation prohibits the creation of a security interest thereon (other than to the extent that any such law would be rendered ineffective pursuant to any other applicable law); provided however sub-clause (a); provided further sub-clause (a) shall not include any proceeds of such assets or property rights; |
(b) | any Permit, lease, license, easement, contract or agreement (other than any Material Project Agreement) to which an Obligor is a party or any of its rights or interests thereunder or any property or assets of an Obligor, in each case if and only to the extent that: (i) the grant of a Security Interest hereunder shall constitute or result in a breach of a term or provision of, the termination or forfeiture of (or ability of the other party to void or revoke) or a default, under the terms of, such Permit, lease, license, easement, contract or agreement; or (ii) a grant of security interests therein would require governmental consent, approval, license or authorization that has not been obtained; provided however Section 9-406, 9-407, 9-408 or 9-409 of the UCC) or (y) to proceeds and receivables of the assets referred to in this sub-clause (ii); |
(c) | any “intent-to-use” intent-to-use |
(d) | all segregated deposit accounts constituting (and the balance of which consists solely of funds set aside in connection with) cash collateral accounts for deposits permitted under the definition of “Permitted Liens,” payroll and other employee wage and benefit accounts, if any, tax accounts, escrow accounts and margin accounts for Permitted Hedging Instruments in the ordinary course of business (excluding any escrow account established under the EPC Contracts and the funds or other property held in or maintained in any such account, which shall be subject to Section 3.2(b)(iii)) (collectively, “Excluded Unsecured Accounts”) and the funds or other property held in or maintained in any such account; |
(e) | without duplication of sub-clause (d) above, property owned by an Obligor that is subject to a Permitted Lien pursuant to subclauses (b), (c), (but excluding any escrow account established under the |
EPC Contracts), (f) (other than to the extent covered by sub-clause (f) below) or (k) of the definition thereof; provided however |
(f) | property owned by an Obligor that is subject to a purchase money Lien or capital lease permitted under each of the Senior Debt Instruments (including, to the extent applicable, Section 12.14(g) ( Limitation on Indebtedness |
(g) | the Obligor’s right, title and interest, as tenant, subtenant or assignee under any real property sub-lease or lease, including in respect of any fixtures related to such real property, for offices so long as such offices are not located on the Site; |
(h) | insurances covering workers’ compensation and employers’ liability and any proceeds thereof; and |
(i) | those assets as to which the Security Trustee and CCH reasonably agree from time to time in writing that either (i) the cost of obtaining a security interest in or perfection thereof, (ii) the adverse tax consequences to the Obligors, or (iii) the adverse regulatory consequences to the Obligors, the Project Facilities or the Development in each case, is or are excessive in relation to the benefit to the Secured Parties of the security afforded thereby. |
(a) | the Common Terms Agreement; |
(b) | the CSAA; |
(c) | the individual Facility Agreements; |
(d) | any Indenture; |
(e) | the Security Documents; |
(f) | the Direct Agreements; |
(g) | the Senior Notes; |
(h) | the Intercreditor Agreement; |
(i) | any fee letters with parties providing financing (other than any Equity Funding); |
(j) | any Permitted Senior Debt Hedging Instrument; |
(k) | the Second Phase Finance Documents; and |
(l) | any other document the Intercreditor Agent (acting on the instructions of the Requisite Intercreditor Parties) designates, with the consent of CCH (such consent not to be unreasonably withheld), a Finance Document; provided provided further |
(a) | the Cash Flow Available for Debt Service projected for such period, calculated solely to reflect (i) the fixed price component under Qualifying LNG SPAs then in effect, which, for the avoidance of doubt, shall not take into account variable costs of the Development related to the variable price component under such Qualifying LNG SPAs, (ii) expected interest and investment earnings paid to the Obligors during such period, (iii) amounts expected to be paid to the Obligors during such period as Business Interruption Insurance Proceeds and (iv) only the fixed expenses that could reasonably be expected to be incurred if the counterparties to the Qualifying LNG SPAs then in effect were not lifting any cargoes from the Development; to |
(b) | Senior Debt Obligations projected to be paid in such period (other than (i) pursuant to voluntary prepayments or mandatory prepayments, (ii) Senior Debt due at maturity, (iii) Working Capital Debt, (iv) LC Costs, (v) interest in respect of Senior Debt and Senior Debt Obligations under any Permitted Hedging Instrument in respect of interest rates, in each case projected to be paid prior to the end of the Term Loan Availability Period and (vi) net payable amounts under Permitted Hedging Instruments that are not in respect of interest rates). |
(a) | all of the Cash Flow Available for Debt Service projected for such period; to |
(b) | Senior Debt Obligations projected to be paid in such period (other than (i) pursuant to voluntary prepayments or mandatory prepayments, (ii) Senior Debt due at maturity, (iii) Working Capital Debt, |
(iv) LC Costs, (v) interest in respect of Senior Debt and Senior Debt Obligations under any Permitted Hedging Instrument in respect of interest rates, in each case projected to be paid prior to the end of the Term Loan Availability Period and (vi) net payable amounts under Permitted Hedging Instruments that are not in respect of interest rates). |
(a) | as of the date of execution or assignment of any Permitted Hedging Instrument, any of the following: (i) any Senior Creditor as of the date of the Common Terms Agreement or (ii) any Affiliate of any Person listed in the foregoing sub-clause (a)(i) of this definition; or |
(b) | as of the date of execution or assignment of any Permitted Hedging Instrument, any of the following: |
(i) | any Person who becomes a Senior Creditor after the date of the Common Terms Agreement or |
(ii) | any Affiliate of any Person listed in the foregoing sub-clause (b)(i) of this definition, in each case, with a credit rating (or a guarantee from a Person with a credit rating) of at least A- from S&P or Fitch or at least A-3 from Moody’s. |
(a) | Interest Rate Hedging Instruments; |
(b) | (i) Gas Hedging Instruments and (ii) Power Hedging Instruments; and |
(c) | such other derivative transactions of a similar nature that any Obligor enters into to hedge risks of any commercial nature. |
(a) | the Cash Flow Available for Debt Service for such period; to |
(b) | Senior Debt Obligations incurred or paid in such period, including on the Payment Date that is the last day of such Historical DSCR period (other than (i) pursuant to voluntary prepayments or mandatory prepayments, (ii) LC Costs, (iii) interest in respect of the Senior Debt and Senior Debt Obligations under Permitted Hedging Instruments in respect of interest rates, in each case paid prior to the end of the Term Loan Availability Period, (iv) net amounts payable under Permitted Hedging Instruments that are not in respect of interest rates, (v) Hedging Termination Amounts and (vi) Working Capital Debt; provided |
(a) | the rescission, revocation, staying, withdrawal, early termination, cancellation, repeal or invalidity thereof or otherwise ceasing to be in full force and effect; |
(b) | the suspension or injunction thereof; or |
(c) | the inability to satisfy in a timely manner stated conditions to effectiveness. |
(a) | all obligations to repay borrowed money; |
(b) | all obligations to pay money evidenced by bonds, debentures, notes, banker’s acceptances, loan agreements or other similar instruments; |
(c) | all obligations to pay the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business); |
(d) | all capital lease obligations of such Person; |
(e) | all obligations, contingent or otherwise, issued for the account of such Person, in respect of letters of credit, bank guarantees, surety bonds, letters of guarantee and similar instruments; |
(f) | all obligations of such Person under any Hedging Instruments (including any Hedging Termination Amounts); |
(g) | all guarantees by such Person of Indebtedness of others; |
(h) | any obligations of such Person to purchase or repurchase securities or other property which arises out of or in connection with the sale of the same or substantially similar securities or property; |
(i) | all obligations under conditional sale or other title retention agreements related to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of property or are otherwise limited in recourse); |
(j) | all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed; |
(k) | all obligations to purchase, redeem, retire, defease or otherwise make any payment in respect of any equity interests of such Person or any other Person or any warrants, rights or options to acquire such equity interests, which in the case of redeemable preferred interests, being valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and |
(l) | all Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. |
(a) | the Indenture Cash Flow Available for Debt Service for such period; to |
(b) | Senior Debt Obligations incurred or paid in such period (other than (i) pursuant to voluntary prepayments or mandatory prepayments, (ii) LC Costs, (iii) interest in respect of the Senior Debt paid prior to the end of the Term Loan Availability Period (or, if no Loans or Senior Debt Commitments remain outstanding, any debt service that was pre-funded by the incurrence of Permitted Senior Debt, one of the use of proceeds of which was expressly for this purpose), (iv) under any Permitted Hedging Instruments in respect of interest rates, in each case paid prior to the end of the Term Loan Availability Period, (v) net payable amounts under Permitted Hedging Instruments that are not in respect of interest rates, (vi) Hedging Termination Amounts, and (vii) Working Capital Debt). |
(a) | has, or has its obligations guaranteed by an entity that has, at least two Indenture Investment Grade ratings; |
(b) | has, or has its obligations guaranteed by an entity that has, one Indenture Investment Grade rating and a tangible net worth of at least $4.5 billion per mtpa of LNG committed to be purchased by such LNG Buyer pursuant to its LNG SPA, up to a maximum of $10 billion of tangible net worth; or |
(c) | for the purposes of LNG SPAs under the captions “Description of Senior Notes—Covenants Applicable to the Notes—LNG SPA Maintenance,” “Description of Senior Notes—Repurchase at the Option of Noteholders—LNG SPA Mandatory Offer,” or “Description of Senior Notes—Covenants Applicable to the Notes—Restricted Payments,” has all of its obligations under the applicable LNG SPA supported by a letter of credit issued by an Acceptable Bank. |
(a) | are required by applicable law or regulations, any consent from a Governmental Authority, Industry Standards or Prudent Industry Practice applicable to the Development; or |
(b) | are otherwise used for the Development; or |
(c) | are incurred in connection and in compliance with the captions “Description of Senior Notes—Covenants Applicable to the Notes —Customary Lifting and Balancing Arrangements” or “Description of Senior Notes—Covenants Applicable to the Notes—Sharing of Project Facilities”; and are funded from (i) Equity Funding not otherwise committed to other expenditure for the Development, (ii) Insurance Proceeds and Condemnation Proceeds to the extent permitted by Article 5 ( Insurance and Condemnation Proceeds and Performance Liquidated Damages Sale of Project Property |
the definition thereof) or (iv) Expansion Senior Debt permitted to be incurred pursuant to the caption “Description of Senior Notes—Incurrence of Senior Debt—Expansion Senior Debt” or other Indebtedness permitted to be incurred under the caption “Description of Senior Notes—Covenants Applicable to the Notes—Limitation on Indebtedness,” in the case of each of the foregoing sub-clauses (i), (ii) and (iv), which use for the contemplated development could not reasonably be expected to have a Material Adverse Effect. |
(a) | Liens for taxes not delinquent or being contested in good faith and by appropriate proceedings in relation to which appropriate reserves are maintained and liens for customs duties that have been deferred in accordance with the laws of any applicable jurisdiction; |
(b) | deposits or pledges to secure obligations under workmen’s compensation, old age pensions, social security or similar laws or under unemployment insurance; |
(c) | deposits or other financial assurances to secure bids, tenders, contracts (other than for borrowed money), leases, concessions, licenses, statutory obligations, surety and appeal bonds (including any bonds permitted under an engineering, procurement and construction contracts), performance bonds and other obligations of like nature arising in the ordinary course of business and cash deposits incurred in connection with Gas purchases; |
(d) | mechanics’, workmen’s, materialmen’s, suppliers’, warehouse, Liens of lessors and sublessors or other like Liens arising or created in the ordinary course of business with respect to obligations that are not due or that are being contested in good faith; |
(e) | (i) servitudes, easements, rights of way, encroachments and other similar encumbrances burdening the Development’s land that are granted in the ordinary course, imperfections of title on real property, and restrictive covenants, zoning restrictions, licenses or conditions on the grant of real property (in relation to such real property); provided |
(f) | Liens to secure indebtedness permitted as described by paragraphs (h) and (p) under the caption “Description of Senior Notes—Covenants Applicable to the Notes—Limitation on Indebtedness”; |
(g) | the Security Interests; |
(h) | Liens in the ordinary course of business arising from or created by operation of applicable law or required in order to comply with any applicable law; |
(i) | Liens in the ordinary course of business over any assets (the aggregate value of which assets at the time any such Lien is granted does not exceed $100 million); |
(j) | contractual or statutory rights of set-off (including netting) granted to CCH’s and/or its Restricted Subsidiaries’ bankers, (i) under any Permitted Hedging Instrument or any Material Project Agreement as long as (A) such Material Project Agreement was in place on the Notes Issue Date but only to the extent permitted by such Material Project Agreement on the Notes Issue Date, (B) such Material Project Agreement was approved by the Intercreditor Agent at a time when at least $1 billion of Loans |
or Senior Debt Commitments in connection therewith were outstanding or (C) the amount of collateral affected by such Lien does not exceed $15 million in the aggregate with all other Liens permitted under this clause (C); and (ii) that could not reasonably be expected to cause a Material Adverse Effect; |
(k) | deposits or other financial assurances to secure reimbursement or indemnification obligations in respect of letters of credit or in respect of letters of credit put in place by CCH and/or its Restricted Subsidiaries and payable to suppliers, service providers, insurers or landlords in the ordinary course of business; |
(l) | Liens that are scheduled exceptions to the coverage afforded by the Title Policy; |
(m) | legal or equitable encumbrances (other than any attachment prior to judgment, judgment lien or attachment in aid of execution on a judgment) deemed to exist by reason of the existence of any pending litigation or other legal proceeding if the same is effectively stayed or the claims secured thereby are being contested in good faith and by appropriate proceedings and an appropriate reserve has been established in respect thereof in accordance with GAAP; |
(n) | the Liens created pursuant to the Real Property Documents; |
(o) | Liens by CCH and/or its Restricted Subsidiaries in favor of CCH or any other Restricted Subsidiary, as applicable; |
(p) | Liens arising out of judgments or awards not constituting an Indenture Event of Default so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate cash reserves, bonds or other cash equivalent security have been provided or are fully covered by insurance (other than any customary deductible); and |
(q) | Liens arising from Sharing Arrangements permitted as described under the caption “Description of Senior Notes—Covenants Applicable to the Notes—Sharing of Project Facilities.” |
(a) | in all cases other than with respect to Restricted Payments: |
(i) | the Indenture Cash Flow Available for Debt Service projected for such period, provided provided |
(ii) | Senior Debt Obligations projected to be paid in such period (other than (A) pursuant to voluntary prepayments or mandatory prepayments, (B) Senior Debt due at maturity, (C) Working Capital Debt, (D) LC Costs, (E) interest in respect of the Senior Debt paid prior to the end of the Term |
Loan Availability Period (or, if no Loans or Senior Debt Commitments remain outstanding, any debt service that was pre-funded by the incurrence of Permitted Senior Debt, one of the use of proceeds of which was expressly for this purpose), (F) under any Permitted Hedging Instruments in respect of interest rates, in each case paid prior to the end of the Term Loan Availability Period, and (G) net payable amounts under Permitted Hedging Instruments that are not in respect of interest rates). |
(b) | in the case of Restricted Payments only: |
(i) | the Indenture Cash Flow Available for Debt Service projected for such period; to |
(ii) | Senior Debt Obligations projected to be paid in such period (other than (A) pursuant to voluntary prepayments or mandatory prepayments, (B) Senior Debt due at maturity, (C) Working Capital Debt, (D) LC Costs, (E) interest in respect of the Senior Debt paid prior to the end of the Term Loan Availability Period (or, if no Loans or Senior Debt Commitments remain outstanding, any debt service that was pre-funded by the incurrence of Permitted Senior Debt, one of the use of proceeds of which was expressly for this purpose), (F) under any Permitted Hedging Instruments in respect of interest rates, in each case paid prior to the end of the Term Loan Availability Period, and (G) net payable amounts under Permitted Hedging Instruments that are not in respect of interest rates). |
(a) | as security for the Senior Debt Obligations (whether at stated maturity, by Security |
(b) | who purchase Senior Notes as Replacement Senior Debt, when the proceeds of such purchase are held in escrow pursuant to the CSAA, a first-ranking security interest in the proceeds of such Senior Notes and investments (including Authorized Investments) made with or arising out of such funds that are held in escrow in a Senior Note Disbursement Account. |
(a) | with respect to any Payment Default: |
(i) | at least 66.7% prior to 30 days following the occurrence of a Payment Default or the declaration thereof, as the case may be; |
(ii) | greater than 50% on or after 30 days and prior to 120 days following the occurrence of a Payment Default or the declaration thereof, as the case may be; and |
(iii) | the percentage held by any individual Senior Creditor Group, on or after 120 days following the occurrence of a Loan Facility Event of Default or an Indenture Event of Default (as applicable) or the declaration thereof, as the case may be; and |
(b) | with respect to any other Event of Default: |
(i) | at least 66.7% on or prior to 30 days following the occurrence of a Loan Facility Event of Default or an Indenture Event of Default (as applicable) or the declaration thereof, as the case may be; |
(ii) | greater than 50% on or after 30 days and prior to 180 days following the occurrence of a Loan Facility Event of Default or an Indenture Event of Default (as applicable) or the declaration thereof, as the case may be; and |
(iii) | the percentage held by any individual Senior Creditor Group, on or after 180 days following the occurrence of a Loan Facility Event of Default or an Indenture Event of Default (as applicable) or the declaration thereof, as the case may be. |
(a) | the acquisition (whether for cash, property of such Person, services or securities or otherwise) of capital stock, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person or any agreement to make any such acquisition (including any “short sale” or any other sale of any securities at a time when such securities are not owned by the Person entering into such sale); |
(b) | the making of any deposit with, or advance, loan or other extension of credit to, any other Person (including the purchase of property from another Person subject to an understanding or agreement, |
contingent or otherwise, to resell such property to such Person, but excluding any such advance, loan or extension of credit having a term not exceeding 90 days representing the purchase price of inventory or supplies sold in the ordinary course of business); and |
(c) | the entering into of any guarantee of, or other contingent obligation (other than an indemnity which is not a guarantee) with respect to, Indebtedness or other liability of any other Person; provided |
(a) | whose share in the outstanding principal amount of the Senior Debt Obligations and whose undrawn Senior Debt Commitments are more than 50% of all of the outstanding principal amount of the Senior Debt Obligations and all the undrawn Senior Debt Commitments of all the Senior Creditors; or |
(b) | if there is no principal amount of Senior Debt Obligations then outstanding, Senior Creditors whose Senior Debt Commitments are more than 50% of the aggregate Senior Debt Commitments of all Senior Creditors. |
(a) | each Obligor’s ability to perform and comply with its material obligations under each Material Project Agreement then in effect and to which it is a party; |
(b) | the Obligors’ ability, taken as a whole, to perform their material obligations under the Finance Documents; |
(c) | CCH’s ability to pay its Senior Debt Obligations when due; |
(d) | the Security Interests created by or under the relevant Security Documents, taken as a whole in respect of the Obligors or the Development, as relevant including the material impairment of the rights of or benefits or remedies, taken as a whole, available to the Secured Parties; or |
(e) | the Obligors’ financial condition and results of operation, on a consolidated basis. |
(a) | the Initial LNG SPAs in each case along with any related parent guarantees; |
(b) | the EPC Contract (T1/T2) together with any related guarantees of Bechtel’s obligations; |
(c) | the Technology License Agreement (T1/T2); |
(d) | the Real Property Documents; |
(e) | the Management Services Agreements; |
(f) | the O&M Agreements; |
(g) | the CCP Pipeline Precedent Agreement; |
(h) | the CEI Equity Contribution Agreement; |
(i) | the Gas and Power Supply Services Agreement; |
(j) | the Export Authorization Letter; |
(k) | the Kinder Morgan Intrastate Firm Gas Transportation Agreement; |
(l) | the TGP Precedent Agreement; |
(m) | the La Quinta Ship Channel Franchise; |
(n) | the Construction Agreement for the Corpus Christi Pipeline Project, dated as of November 10, 2016, between CCP, as owner and Associated Pipe Line, as contractor; |
(o) | the Construction Agreement for the Corpus Christi Pipeline Project, dated as of November 4, 2016, between CCP, as owner and Sunland, as contractor; |
(p) | the Construction Agreement for the Corpus Christi Pipeline Project, dated as of November 3, 2016, between CCP, as owner and Ref-Chem, as contractor; |
(q) | the Precedent Agreement for Firm Transportation Service Under Gulf Connector Expansion Project, dated as of December 16, 2015, between CCL and Transco; |
(r) | the GE CSA; |
(s) | the Precedent Agreement, dated as of June 8, 2015 between CCL and NGPL; |
(t) | the Natural Gas Pipeline Company of America LLC (Natural) Transportation Rate Schedule FTS Agreement, dated as of September 24, 2015, between CCL and NGPL; |
(u) | the Gas Transportation Agreement, dated as of November 20, 2014, between CCL and TGP; |
(v) | the Firm Transportation Negotiated Rate Agreement, dated as of November 20, 2014, between CCL and TGP; |
(w) | the Service Agreement, dated as of December 19, 2017, between CCL and Transco; |
(x) | the Service Agreement, dated as of February 15, 2018, between CCL and CCP; |
(y) | the Negotiated Rate Letter Agreement, dated as of February 15, 2018, between CCL and CCP; |
(z) | the Second Phase Material Project Agreements; and |
(aa) | any Subsequent Material Project Agreement (upon an Obligor becoming a party to such Subsequent Material Project Agreement). |
(a) | as to which neither CCH nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) or (ii) is directly or indirectly liable as a guarantor or otherwise; and |
(b) | as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of CCH or any of its Restricted Subsidiaries (other than the Equity Interests of an Unrestricted Subsidiary). |
(a) | fees and costs of the Manager pursuant to the Management Services Agreements; plus |
(b) | amounts payable by the Obligors under a Material Project Agreement then in effect; plus |
(c) | expenses for operating the Development and maintaining it in good repair and operating condition payable during such period, including the ordinary course fees and costs of the Operator payable pursuant to the O&M Agreements and fees and costs payable pursuant to the Gas and Power Supply Services Agreement; plus |
(d) | LC Costs; plus |
(e) | insurance costs payable during such period; plus |
(f) | applicable sales and excise taxes (if any) payable or reimbursable by the Obligors during such period; plus |
(g) | franchise taxes payable by the Obligors during such period; plus |
(h) | property taxes payable by the Obligors during such period; plus |
(i) | any other direct taxes (if any) payable by the Obligors to the taxing authority (other than any taxes imposed on or measured by income or receipts) during such period; plus |
(j) | costs and fees attendant to the obtaining and maintaining in effect the Permits payable during such period; plus |
(k) | expenses for spares and other capital goods inventory, capital expenses related to the construction and start-up of the Project Facilities, maintenance capital expenditures, including those required to maintain the Project Facilities’ capacity; plus |
(l) | legal, accounting and other professional fees of the Obligors payable during such period; plus |
(m) | Required Capital Expenditures; plus |
(n) | the cost of purchase, storage and transportation of Gas and electricity; plus |
(o) | all other cash expenses payable by the Obligors in the ordinary course of business. |
(a) | are required by applicable law or regulations, any consent from a Governmental Authority, Industry Standards or Prudent Industry Practice applicable to the Development; or |
(b) | are otherwise used for the Development; and are funded from (i) Equity Funding not otherwise committed to other expenditure for the Development, (ii) Insurance Proceeds and Condemnation Proceeds to the extent permitted by Article 5 ( Insurance and Condemnation Proceeds and Performance Liquidated Damages sub-clauses (i), (ii) and (iv), in each case as expressly permitted under the Finance Documents and which use for the contemplated development could not reasonably be expected to have a Material Adverse Effect; provided Indenture Permitted Development Expenditures |
(a) | any novation, deferral or extension of any of those liabilities; |
(b) | any claim for damages or restitution arising out of, by reference to or in connection with any of those liabilities; |
(c) | any claim flowing from any recovery by an Obligor or a receiver or liquidator thereof or any other Person of a payment or discharge in respect of any of those liabilities on grounds of preference or otherwise; and |
(d) | any amounts (such as post-insolvency interest) which could be included in any of the above but for any discharge, non-provability, unenforceability or non-allowability of the same in any insolvency or other proceedings. |
(a) | Authorized Investments; |
(b) | by way of trade credit in the ordinary course of business; |
(c) | as specifically contemplated under the Finance Documents to which the Indenture Trustee is a party or by the terms of a Material Project Agreement as long as (i) such Material Project Agreement was in place on the Notes Issue Date, but only to the extent permitted by such Material Project Agreement on the Notes Issue Date, (ii) such Material Project Agreement was approved by the Intercreditor Agent at a time when at least $1 billion of Loans or Senior Debt Commitments in connection therewith were outstanding or (iii) such Investment does not exceed $15 million in the aggregate with all other Investments permitted under this clause (c)(iii); |
(d) | advance payments to contractors in the ordinary course of business on usual commercial terms; |
(e) | Investments among and between CCH and/or its Restricted Subsidiaries; |
(f) | any Investment by CCH and/or its Restricted Subsidiaries in a Person, if as a result of such investment such Person is merged or consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, CCH and/or its Restricted Subsidiaries; |
(g) | Investments existing on the Notes Issue Date; |
(h) | repurchases of the Senior Notes; |
(i) | Investments received as a result of a foreclosure by CCH and/or its Restricted Subsidiaries with respect to any secured investment in default; |
(j) | surety and performance bonds and workers’ compensation, utility, lease, tax, performance and similar deposits and prepaid expenses in the ordinary course of business, including cash deposits incurred in connection with Gas purchases; |
(k) | any Investment in any Person solely in exchange for the issuance of Equity Interests (other than Equity Interests that constitute Indebtedness) of CCH; |
(l) | amounts deposited pursuant to the escrow agreement entered into with respect to disputed amounts under any engineering, procurement and construction contract or another construction contract with respect to development of the Project Facilities as permitted under the Finance Documents; |
(m) | advances, deposits and prepayments for purchases of any assets, including any Equity Interests; |
(n) | guarantees of Indebtedness pursuant to the captions “Description of Senior Notes—Covenants Applicable to the Notes—Limitation on Indebtedness”; |
(o) | Investments pursuant to Permitted Hedging Instruments; |
(p) | any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with “Description of Senior Notes—Repurchase at the Option of Noteholders—Asset Sales”; |
(q) | any Investments received in compromise or resolution of (i) obligations of trade creditors or customers that were incurred in the ordinary course of business of CCH or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (ii) litigation, arbitration or other disputes with Persons who are not Affiliates; |
(r) | (i) advances to or reimbursements of employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business; and (ii) loans or advances to employees made in the ordinary course of business of CCH or any Restricted Subsidiary of CCH in an aggregate principal amount not to exceed $2.5 million at any one time outstanding; |
(s) | advances to customers or suppliers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of CCH or its Restricted Subsidiaries and endorsements for collection or deposit arising in the ordinary course of business; and |
(t) | other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other investments made pursuant to this clause (t) that are at the time outstanding not to exceed $50 million. |
(a) | Liens for taxes not delinquent or being contested in good faith and by appropriate proceedings in relation to which appropriate reserves are maintained and liens for customs duties that have been deferred in accordance with the laws of any applicable jurisdiction; |
(b) | deposits or pledges to secure obligations under workmen’s compensation, old age pensions, social security or similar laws or under unemployment insurance; |
(c) | deposits or other financial assurances to secure bids, tenders, contracts (other than for borrowed money), leases, concessions, licenses, statutory obligations, surety and appeal bonds (including any bonds permitted under an EPC Contract), performance bonds and other obligations of like nature arising in the ordinary course of business and cash deposits incurred in connection with natural gas purchases; |
(d) | mechanics’, workmen’s, materialmen’s, suppliers’, warehouse, Liens of lessors and sublessors or other like Liens arising or created in the ordinary course of business with respect to obligations that are not due or that are being contested in good faith; |
(e) | (i) servitudes, easements, rights of way, encroachments and other similar encumbrances burdening the Development’s land that are granted in the ordinary course, imperfections of title on real property, and restrictive covenants, zoning restrictions, licenses or conditions on the grant of real property (in relation to such real property); provided |
(f) | Liens to secure indebtedness as described by paragraphs (c)(8) and (c)(16) under the caption “Description of Senior Notes—Covenants Applicable to the Notes—Limitation on Indebtedness”; |
(g) | the Security Interests; |
(h) | Liens in the ordinary course of business arising from or created by operation of applicable law or required in order to comply with any applicable law and that could not reasonably be expected to cause a Material Adverse Effect or materially impair the Development’s use of the encumbered assets; |
(i) | Liens in the ordinary course of business over any assets (the aggregate value of which assets at the time any such Lien is granted does not exceed $25 million) that could not reasonably be expected to cause a Material Adverse Effect or materially impair the Development’s use of the encumbered assets; |
(j) | contractual or statutory rights of set-off (including netting) granted to the Obligors’ bankers, under any Permitted Hedging Instrument or any Material Project Agreement and that could not reasonably be expected to cause a Material Adverse Effect; |
(k) | deposits or other financial assurances to secure reimbursement or indemnification obligations in respect of letters of credit or in respect of letters of credit put in place by an Obligor and payable to suppliers, service providers, insurers or landlords in the ordinary course of business; |
(l) | Liens that are scheduled exceptions to the coverage afforded by a Title Policy on May 22, 2018 or later date of amendment of a Title Policy or delivery of a new Title Policy; |
(m) | legal or equitable encumbrances (other than any attachment prior to judgment, judgment lien or attachment in aid of execution on a judgment) deemed to exist by reason of the existence of any pending litigation or other legal proceeding if the same is effectively stayed or the claims secured thereby are being contested in good faith and by appropriate proceedings and an appropriate reserve has been established in respect thereof in accordance with GAAP; |
(n) | the Liens created pursuant to the Real Property Documents; |
(o) | Liens by any Obligor in favor of any other Obligor; and |
(p) | Liens arising out of judgments or awards not constituting an Event of Default so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate cash reserves, bonds or other cash equivalent security have been provided or are fully covered by insurance (other than any customary deductible); provided Indenture Permitted Liens |
(a) | payments to an Affiliate of CCH to permit such Affiliate to pay its reasonable accounting, legal and administrative expenses when due, in an aggregate amount not to exceed $5 million per calendar year; and |
(b) | the amount necessary for payment to an Affiliate of CCH to enable it to pay its (or for such Affiliate to satisfy any contractual obligation to distribute to its beneficial owners to enable them to pay their) income tax liability with respect to income generated by the Obligors, determined at the highest combined U.S. federal and State of Texas tax rate applicable to an entity taxable as a corporation in both jurisdictions for the applicable period. |
(a) | any novation, deferral or extension of any of those liabilities; |
(b) | any claim for damages or restitution arising out of, by reference to or in connection with any of those liabilities; |
(c) | any claim flowing from any recovery by an Obligor or a receiver or liquidator thereof or any other Person of a payment or discharge in respect of any of those liabilities on grounds of preference or otherwise; and |
(d) | any amounts (such as post-insolvency interest) which would be included in any of the above but for any discharge, non-provability, unenforceability or non-allowability of the same in any insolvency or other proceedings. |
(a) | the amount of interest paid to such Senior Creditor on such date bears the same proportion to the total amount of interest payments made to all Senior Creditors on such date as (i) the total amount of Senior Debt Obligations for interest due to such Senior Creditor on such date bears to (ii) the total amount of Senior Debt Obligations for interest due to all Senior Creditors on such date; |
(b) | the amount of principal paid to such Senior Creditor on such date bears the same proportion to the total amount of principal payments made to all Senior Creditors on such date as (i) the total amount of Senior Debt Obligations for principal due to such Senior Creditor on such date bears to (ii) the total amount of Senior Debt Obligations for principal due to all Senior Creditors on such date, in each case not including any principal payable by way of an acceleration of principal unless each Senior Debt Obligation has been accelerated; and |
(c) | fees, commissions, indemnities and all amounts other than interest and principal paid to such Senior Creditor on such date bears the same proportion to the total fees, commissions, indemnities and such other amounts paid to all Senior Creditors on such date as (i) the total Senior Debt Obligations for fees, commissions, indemnities and such other amounts due to such Senior Creditor on such date bears to (ii) the total Senior Debt Obligations for fees, commissions, indemnities and such other amounts due to all Senior Creditors on such date. |
(a) | the Common Terms Agreement; |
(b) | the CSAA; |
(c) | the Term Loan Facility Agreement; |
(d) | any Security Documents required by the financing of the Second Phase Development; |
(e) | the Direct Agreements in respect of the Second Phase Material Project Agreements to the extent such Direct Agreement is required to be delivered pursuant to Section 3.4 ( Direct Agreements |
(f) | the Intercreditor Agreement; |
(g) | the PetroChina Direct Agreements; and |
(h) | any fee letters with parties providing financing (other than any Equity Funding) in connection with the financing of the Second Phase Development. |
(a) | the Trafigura SPA; |
(b) | the PetroChina FOB SPA; |
(c) | the DES-Linked SPA; and |
(d) | the EDP SPA. |
(a) | the Second Phase LNG SPAs in each case along with any related parent guarantees; |
(b) | the EPC Contract (T3), together with any related guarantees of Bechtel’s obligations under such EPC Contract provided by the Guarantor (as defined in the EPC Contract (T3)); |
(c) | the Technology License Agreement (T3); |
(d) | the CEI Equity Contribution Agreement; |
(e) | the Precedent Agreement, dated as of February 20, 2018, between CCL and NGPL; |
(f) | the Targa Gas Supply Agreement; and |
(g) | CMI Security Agreement. |
(a) | the Term Lenders under the Term Loan Facility Agreement; |
(b) | the Facility Lenders (collectively) under any subsequent Facility Agreement; |
(c) | the Senior Noteholders (collectively) under any Indenture; |
(d) | each Hedging Bank; and |
(e) | any Senior Creditor or group of Senior Creditors, as the case may be, that provides Additional Senior Debt pursuant to a single Senior Debt Instrument entered into after the date of the CSAA. |
(a) | replaces or substitutes for an existing Material Project Agreement; |
(b) | with respect to any Gas supply contract between any Obligor and any Gas supplier or any Gas transportation contract between any Obligor and any Qualified Transporter, (i) contains obligations and liabilities that are in excess of $20 million per year and (ii) is for a term that is greater than seven years; |
(c) | [reserved]; |
(d) | except as provided in clause (b) above or clause (f) below, (i) contains obligations and liabilities that are in excess of $50 million over its term (including after taking into account all amendments, amendments and restatements, supplements, or waivers to any such contract, agreement, letter agreement or other instrument) and (ii) is for a term that is greater than seven years; provided |
(e) | is a guarantee provided in favor of any Obligor by a guarantor or a counterparty under a Subsequent Material Project Agreement; or |
(f) | is a physical electricity purchase contract, agreement, letter agreement or other instrument and the Intercreditor Agent has required designation thereof as a Subsequent Material Project Agreement in connection with any consent, waiver or approval provided by it for entry into such contract, agreement, letter agreement or other instrument pursuant to Section 12.30 ( Electricity Purchase Agreements |
(a) | in the case of the Title Policy delivered in connection with May 22, 2018, in an amount equal to the lesser of the aggregate amount of the Loans and the maximum amount permitted to be insured under Section 2551.301 of the Texas Insurance Code as of May 22, 2018; |
(b) | in the case of a Title Policy obtained in connection with an acquisition of Real Estate after May 22, 2018, to the extent that the Obligors are required to obtain such policy in respect of such Real Estate acquisition pursuant to the Common Terms Agreement or CSAA, then: |
(x) | in the case such acquisition of Real Estate is for purposes of an Expansion or Development Expenditure to be funded by Loans incurred by the Obligors, the Obligors shall either amend the then-existing Title Policy, replace the then-existing Title Policy with a new Title Policy or, to the extent a tie-in endorsement to the then-existing Title Policy obtained in connection with incurrence of Loans is available and obtained, obtain a separate incremental Title Policy covering the acquired Real Estate, in each case, in an amount equal to the lesser of, when taken together |
with any other then-existing Title Policy, (i) the aggregate amount of the outstanding principal of, and commitments in respect of, the Loans and (ii) the maximum amount permitted to be insured under Section 2551.301 of the Texas Insurance Code at the time such policy is obtained; and |
(y) | in the case of an acquisition of any Real Estate by the Obligors other than in the circumstances described in clause (x) above, the Obligors may (but shall not be required to) amend the then-existing Title Policy or replace the then-existing Title Policy with a new Title Policy in an amount consistent with the terms in clause (x) above or shall obtain a Title Policy covering only such acquired Real Estate in an amount not less than the market value, as reasonably determined by CCH, of such acquired Real Estate; |
(a) | no survey exceptions other than those approved by the Security Trustee; |
(b) | the lien exception and pending disbursements clause added to Schedule B as required by Procedural Rule P-8.b.1 of The Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas; and |
(c) | such endorsements and affirmative assurances as the Security Trustee shall reasonably require and which the title insurers are permitted and willing to issue as provided in The Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas. |
(a) | has no Indebtedness other than Non-Recourse Debt; |
(b) | except as permitted as described under the caption “Description of Senior Notes—Covenants Applicable to the Notes—Transactions with Affiliates,” is not party to any agreement, contract, arrangement or understanding with CCH or any Restricted Subsidiary of CCH unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to CCH or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of CCH; |
(c) | is a Person with respect to which neither CCH nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and |
(d) | has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of CCH or any of its Restricted Subsidiaries. |
AUDITED CONSOLIDATED FINANCIAL STATEMENTS |
||||
F-5 |
||||
F-7 |
||||
F-8 |
||||
F-9 |
||||
F-10 |
||||
F-11 |
Bcf |
billion cubic feet | |
Bcf/d |
billion cubic feet per day | |
Bcf/yr |
billion cubic feet per year | |
Bcfe |
billion cubic feet equivalent | |
DOE |
U.S. Department of Energy | |
EPC |
engineering, procurement and construction | |
FERC |
Federal Energy Regulatory Commission | |
FTA countries |
countries with which the United States has a free trade agreement providing for national treatment for trade in natural gas | |
GAAP |
generally accepted accounting principles in the United States | |
Henry Hub |
the final settlement price (in USD per MMBtu) for the New York Mercantile Exchange’s Henry Hub natural gas futures contract for the month in which a relevant cargo’s delivery window is scheduled to begin | |
IPM |
integrated production marketing agreements in which the gas producer sells to us gas on a global LNG index price, less a fixed liquefaction fee, shipping and other costs | |
LIBOR |
London Interbank Offered Rate | |
LNG |
liquefied natural gas, a product of natural gas that, through a refrigeration process, has been cooled to a liquid state, which occupies a volume that is approximately 1/600th of its gaseous state | |
MMBtu |
million British thermal units; one British thermal unit measures the amount of energy required to raise the temperature of one pound of water by one degree Fahrenheit | |
mtpa |
million tonnes per annum | |
non-FTA countries |
countries with which the United States does not have a free trade agreement providing for national treatment for trade in natural gas and with which trade is permitted | |
SEC |
U.S. Securities and Exchange Commission | |
SOFR |
Secured Overnight Financing Rate | |
SPA |
LNG sale and purchase agreement | |
TBtu |
trillion British thermal units; one British thermal unit measures the amount of energy required to raise the temperature of one pound of water by one degree Fahrenheit | |
Train |
an industrial facility comprised of a series of refrigerant compressor loops used to cool natural gas into LNG |
• | evaluating the future prices of energy units for observable periods by comparing to market data, including quoted or published forward prices |
• | developing independent fair value estimates and comparing the independently developed estimates to the Company’s fair value estimates. |
/s/ KPMG LLP | ||
KPMG LLP |
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Revenues |
||||||||||||
LNG revenues |
$ | $ | $ | |||||||||
LNG revenues—affiliate |
||||||||||||
|
|
|
|
|
|
|||||||
Total revenues |
||||||||||||
|
|
|
|
|
|
|||||||
Operating costs and expenses |
||||||||||||
Cost of sales (excluding items shown separately below) |
||||||||||||
Cost of sales—affiliate |
||||||||||||
Cost of sales—related party |
||||||||||||
Operating and maintenance expense |
||||||||||||
Operating and maintenance expense—affiliate |
||||||||||||
Operating and maintenance expense—related party |
||||||||||||
Development expense |
||||||||||||
General and administrative expense |
||||||||||||
General and administrative expense—affiliate |
||||||||||||
Depreciation and amortization expense |
||||||||||||
Impairment expense and loss on disposal of assets |
||||||||||||
|
|
|
|
|
|
|||||||
Total operating costs and expenses |
||||||||||||
|
|
|
|
|
|
|||||||
Income from operations |
||||||||||||
Other income (expense) |
||||||||||||
Interest expense, net of capitalized interest |
( |
) | ( |
) | ( |
) | ||||||
Loss on modification or extinguishment of debt |
( |
) | ( |
) | ( |
) | ||||||
Interest rate derivative loss, net |
( |
) | ( |
) | ( |
) | ||||||
Other income (expense), net |
( |
) | ||||||||||
|
|
|
|
|
|
|||||||
Total other expense |
( |
) | ( |
) | ( |
) | ||||||
|
|
|
|
|
|
|||||||
Net income (loss) |
$ | ( |
) | $ | $ | ( |
) | |||||
|
|
|
|
|
|
December 31, |
||||||||
2021 |
2020 |
|||||||
ASSETS |
||||||||
Current assets |
||||||||
Restricted cash and cash equivalents |
$ | $ | ||||||
Accounts and other receivables, net of current expected credit losses |
||||||||
Accounts receivable—affiliate |
||||||||
Advances to affiliate |
||||||||
Inventory |
||||||||
Current derivative assets |
||||||||
Current derivative assets—related party |
||||||||
Other current assets |
||||||||
Other current assets—affiliate |
||||||||
|
|
|
|
|||||
Total current assets |
||||||||
Property, plant and equipment, net of accumulated depreciation |
||||||||
Debt issuance and deferred financing costs, net of accumulated amortization |
||||||||
Derivative assets |
||||||||
Derivative assets—related party |
||||||||
Other non-current assets, net |
||||||||
|
|
|
|
|||||
Total assets |
$ | $ | ||||||
|
|
|
|
|||||
LIABILITIES AND MEMBER’S EQUITY |
||||||||
Current liabilities |
||||||||
Accounts payable |
$ | $ | ||||||
Accrued liabilities |
||||||||
Accrued liabilities—related party |
||||||||
Current debt, net of discount and debt issuance costs |
||||||||
Due to affiliates |
||||||||
Current derivative liabilities |
||||||||
Other current liabilities |
||||||||
|
|
|
|
|||||
Total current liabilities |
||||||||
Long-term debt, net of discount and debt issuance costs |
||||||||
Derivative liabilities |
||||||||
Other non-current liabilities |
||||||||
|
|
|
|
|
|
|
|
|
Commitments and contingencies (see Note 13) |
||||||||
|
|
|
|
|
|
|
|
|
Member’s equity |
||||||||
|
|
|
|
|||||
Total liabilities and member’s equity |
$ | $ | ||||||
|
|
|
|
Cheniere CCH HoldCo I, LLC |
Total Member’s Equity |
|||||||
Balance at December 31, 2018 |
$ | $ | ||||||
Capital contributions |
||||||||
Net loss |
( |
) | ( |
) | ||||
|
|
|
|
|||||
Balance at December 31, 2019 |
||||||||
Capital contributions |
||||||||
Distributions |
( |
) | ( |
) | ||||
Net income |
||||||||
|
|
|
|
|||||
Balance at December 31, 2020 |
||||||||
Distributions |
( |
) | ( |
) | ||||
Net loss |
( |
) | ( |
) | ||||
|
|
|
|
|||||
Balance at December 31, 2021 |
$ | $ | ||||||
|
|
|
|
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Cash flows from operating activities |
||||||||||||
Net income (loss) |
$ | ( |
) | $ | $ | ( |
) | |||||
Adjustments to reconcile net income to net cash used in operating activities: |
||||||||||||
Depreciation and amortization expense |
||||||||||||
Amortization of discount and debt issuance costs |
||||||||||||
Loss on modification or extinguishment of debt |
||||||||||||
Total losses on derivatives, net |
||||||||||||
Total losses (gains) on derivatives, net—related party |
( |
) | ||||||||||
Net cash used for settlement of derivative instruments |
( |
) | ( |
) | ( |
) | ||||||
Impairment expense and loss on disposal of assets |
||||||||||||
Other |
||||||||||||
Changes in operating assets and liabilities: |
||||||||||||
Accounts receivable |
( |
) | ( |
) | ( |
) | ||||||
Accounts receivable—affiliate |
( |
) | ( |
) | ||||||||
Advances to affiliate |
( |
) | ( |
) | ||||||||
Inventory |
( |
) | ( |
) | ( |
) | ||||||
Accounts payable and accrued liabilities |
||||||||||||
Accrued liabilities—related party |
( |
) | ||||||||||
Due to affiliates |
||||||||||||
Other, net |
( |
) | ( |
) | ||||||||
Other, net—affiliate |
( |
) | ||||||||||
|
|
|
|
|
|
|||||||
Net cash provided by (used in) operating activities |
( |
) | ||||||||||
Cash flows from investing activities |
||||||||||||
Property, plant and equipment |
( |
) | ( |
) | ( |
) | ||||||
Other |
( |
) | ( |
) | ( |
) | ||||||
Net cash used in investing activities |
( |
) | ( |
) | ( |
) | ||||||
Cash flows from financing activities |
||||||||||||
Proceeds from issuances of debt |
||||||||||||
Repayments of debt |
( |
) | ( |
) | ( |
) | ||||||
Debt issuance and deferred financing costs |
( |
) | ( |
) | ( |
) | ||||||
Debt extinguishment costs |
( |
) | ( |
) | ||||||||
Capital contributions |
||||||||||||
Distributions |
( |
) | ||||||||||
|
|
|
|
|
|
|||||||
Net cash provided by (used in) financing activities |
( |
) | ||||||||||
Net decrease in restricted cash and cash equivalents |
( |
) | ( |
) | ( |
) | ||||||
Restricted cash and cash equivalents—beginning of period |
||||||||||||
|
|
|
|
|
|
|||||||
Restricted cash and cash equivalents—end of period |
$ | $ | $ | |||||||||
|
|
|
|
|
|
• | inability to recover cost increases due to rate caps and rate case moratoriums; |
• | inability to recover capitalized costs, including an adequate return on those costs through the rate-making process and the FERC proceedings; |
• | excess capacity; |
• | increased competition and discounting in the markets we serve; and |
• | impacts of ongoing regulatory initiatives in the natural gas industry. |
• | We classify term debt that is contractually due within one year as long-term debt if management has the intent and ability to refinance the current portion of such debt with future cash proceeds from an executed long-term debt agreement. |
• | We evaluate the classification of long-term debt extinguished after the balance sheet date but before the financial statements are issued based on facts and circumstances existing as of the balance sheet date. |
December 31, |
||||||||
2021 |
2020 |
|||||||
Trade receivable |
$ | $ | ||||||
Other accounts receivable |
||||||||
|
|
|
|
|||||
Total accounts and other receivables, net of current expected credit losses |
$ | $ | ||||||
|
|
|
|
December 31, |
||||||||
2021 |
2020 |
|||||||
Materials |
$ | $ | ||||||
LNG |
||||||||
Natural gas |
||||||||
Other |
||||||||
|
|
|
|
|||||
Total inventory |
$ | $ | ||||||
|
|
|
|
December 31, |
||||||||
2021 |
2020 |
|||||||
LNG terminal |
||||||||
LNG terminal and interconnecting pipeline facilities |
$ | $ | ||||||
LNG site and related costs |
||||||||
LNG terminal construction-in-process |
||||||||
Accumulated depreciation |
( |
) | ( |
) | ||||
|
|
|
|
|||||
Total LNG terminal, net of accumulated depreciation |
||||||||
Fixed assets |
||||||||
Fixed assets |
||||||||
Accumulated depreciation |
( |
) | ( |
) | ||||
|
|
|
|
|||||
Total fixed assets, net of accumulated depreciation |
||||||||
|
|
|
|
|||||
Property, plant and equipment, net of accumulated depreciation |
$ | $ | ||||||
|
|
|
|
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Depreciation expense |
$ | $ | $ | |||||||||
Offsets to LNG terminal costs (1) |
(1) | We recognize offsets to LNG terminal costs related to the sale of commissioning cargoes because these amounts were earned or loaded prior to the start of commercial operations of the Liquefaction Project during the testing phase for its construction. |
Components |
Useful life (years) |
|||
LNG storage tanks |
||||
Natural gas pipeline facilities |
||||
Marine berth, electrical, facility and roads |
||||
Water pipelines |
||||
Liquefaction processing equipment |
||||
Other |
• | interest rate swaps (“CCH Interest Rate Derivatives”) to hedge the exposure to volatility in a portion of the floating-rate interest payments on our amended and restated term loan credit facility (the “CCH Credit Facility”) and to hedge against changes in interest rates that could impact anticipated future issuance of debt (“CCH Interest Rate Forward Start Derivatives” and, collectively with the CCH Interest Rate Derivatives, the “Interest Rate Derivatives”) and |
• | commodity derivatives consisting of natural gas supply contracts for the commissioning and operation of the Liquefaction Project (“Physical Liquefaction Supply Derivatives”) and associated economic hedges (“Financial Liquefaction Supply Derivatives,” and collectively with the Physical Liquefaction Supply Derivatives, the “Liquefaction Supply Derivatives”). |
Fair Value Measurements as of |
||||||||||||||||||||||||||||||||
December 31, 2021 |
December 31, 2020 |
|||||||||||||||||||||||||||||||
Quoted Prices in Active Markets (Level 1) |
Significant Other Observable Inputs (Level 2) |
Significant Unobservable Inputs (Level 3) |
Total |
Quoted Prices in Active Markets (Level 1) |
Significant Other Observable Inputs (Level 2) |
Significant Unobservable Inputs (Level 3) |
Total |
|||||||||||||||||||||||||
CCH Interest Rate Derivatives liability |
$ | $ | ( |
) | $ | $ | ( |
) | $ | $ | ( |
) | $ | $ | ( |
) | ||||||||||||||||
Liquefaction Supply Derivatives asset (liability) |
( |
) | ( |
) | ( |
) |
Net Fair Value Liability (in millions) |
Valuation Approach |
Significant Unobservable Input |
Range of Significant Unobservable Inputs / Weighted Average (1) | |||||
Physical Liquefaction Supply Derivatives |
$( |
Market approach incorporating present value techniques |
Henry Hub basis spread | $( $( | ||||
Option pricing model | International LNG pricing spread, relative to Henry Hub (2) |
(1) | Unobservable inputs were weighted by the relative fair value of the instruments. |
(2) | Spread contemplates U.S. dollar-denominated pricing. |
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Balance, beginning of period |
$ | $ | $ | ( |
) | |||||||
Realized and mark-to-market |
||||||||||||
Included in cost of sales |
( |
) | ( |
) | ||||||||
Purchases and settlements: |
||||||||||||
Purchases |
||||||||||||
Settlements |
( |
) | ||||||||||
Transfers into Level 3, net (1) |
||||||||||||
|
|
|
|
|
|
|||||||
Balance, end of period |
$ | ( |
) | $ | $ | |||||||
|
|
|
|
|
|
|||||||
Change in unrealized gain (loss) relating to instruments still held at end of period |
$ | ( |
) | $ | $ | ( |
) | |||||
|
|
|
|
|
|
(1) | Transferred into Level 3 as a result of unobservable market, or out of Level 3 as a result of observable market for the underlying natural gas purchase agreements. |
Notional Amounts |
||||||||||||||||||
December 31, 2021 |
December 31, 2020 |
Latest Maturity Date |
Weighted Average Fixed Interest Rate Paid |
Variable Interest Rate Received | ||||||||||||||
CCH Interest Rate Derivatives |
$ | $ | % | One-month LIBOR |
Loss Recognized in Consolidated Statements of Operations |
||||||||||||||
Consolidated Statements of Operations Location |
Year Ended December 31, |
|||||||||||||
2021 |
2020 |
2019 |
||||||||||||
CCH Interest Rate Derivatives |
Interest rate derivative loss, net |
$ | ( |
) | $ | ( |
) | $ | ( |
) | ||||
CCH Interest Rate Forward Start Derivatives |
Interest rate derivative loss, net |
( |
) | ( |
) |
Gain (Loss) Recognized in Consolidated Statements of Operations |
||||||||||||
Year Ended December 31, |
||||||||||||
Consolidated Statements of Operations Location (1) |
2021 |
2020 |
2019 |
|||||||||
LNG revenues |
$ | $ | ( |
) | $ | |||||||
Cost of sales |
( |
) | ( |
) | ||||||||
Cost of sales—related party (2) |
( |
) | ( |
) |
(1) | Does not include the realized value associated with derivative instruments that settle through physical delivery. Fair value fluctuations associated with commodity derivative activities are classified and presented consistently with the item economically hedged and the nature and intent of the derivative instrument. |
(2) | Includes amounts recorded related to natural gas supply contracts that we had with a related party. This agreement ceased to be considered a related party agreement as of December 31, 2021, as discussed in Note 12—Related Party Transactions. |
December 31, 2021 |
||||||||||||
CCH Interest Rate Derivatives |
Liquefaction Supply Derivatives (1) |
Total |
||||||||||
Consolidated Balance Sheets Location |
||||||||||||
Current derivative assets |
$ | $ | $ | |||||||||
Derivative assets |
||||||||||||
|
|
|
|
|
|
|||||||
Total derivative assets |
||||||||||||
Current derivative liabilities |
( |
) | ( |
) | ( |
) | ||||||
Derivative liabilities |
( |
) | ( |
) | ||||||||
|
|
|
|
|
|
|||||||
Total derivative liabilities |
( |
) | ( |
) | ( |
) | ||||||
|
|
|
|
|
|
|||||||
Derivative liability, net |
$ | ( |
) | $ | ( |
) | $ | ( |
) | |||
|
|
|
|
|
|
December 31, 2020 |
||||||||||||
CCH Interest Rate Derivatives |
Liquefaction Supply Derivatives (1) |
Total |
||||||||||
Consolidated Balance Sheets Location |
||||||||||||
Current derivative assets |
$ | $ | $ | |||||||||
Current derivative assets—related party |
||||||||||||
Derivative assets |
||||||||||||
Derivative assets—related party |
||||||||||||
|
|
|
|
|
|
|||||||
Total derivative assets |
||||||||||||
Current derivative liabilities |
( |
) | ( |
) | ( |
) | ||||||
Derivative liabilities |
( |
) | ( |
) | ( |
) | ||||||
|
|
|
|
|
|
|||||||
Total derivative liabilities |
( |
) | ( |
) | ( |
) | ||||||
|
|
|
|
|
|
|||||||
Derivative asset (liability), net |
$ | ( |
) | $ | $ | ( |
) | |||||
|
|
|
|
|
|
(1) | Does not include collateral posted with counterparties by us of $ |
CCH Interest Rate Derivatives |
Liquefaction Supply Derivatives |
|||||||
As of December 31, 2021 |
||||||||
Gross assets |
$ | $ | ||||||
Offsetting amounts |
( |
) | ||||||
|
|
|
|
|||||
Net assets |
$ | $ | ||||||
|
|
|
|
|||||
Gross liabilities |
$ | ( |
) | $ | ( |
) | ||
Offsetting amounts |
||||||||
|
|
|
|
|||||
Net liabilities |
$ | ( |
) | $ | ( |
) | ||
|
|
|
|
|||||
As of December 31, 2020 |
||||||||
Gross assets |
$ | $ | ||||||
Offsetting amounts |
( |
) | ||||||
|
|
|
|
|||||
Net assets |
$ | $ | ||||||
|
|
|
|
|||||
Gross liabilities |
$ | ( |
) | $ | ( |
) | ||
Offsetting amounts |
||||||||
|
|
|
|
|||||
Net liabilities |
$ | ( |
) | $ | ( |
) | ||
|
|
|
|
December 31, |
||||||||
2021 |
2020 |
|||||||
Contract assets, net of current expected credit losses |
$ | $ | ||||||
Advances and other asset conveyances to third parties to support LNG terminal |
||||||||
Operating lease assets |
||||||||
Information technology service prepayments |
||||||||
Tax-related payments and receivables |
||||||||
Other |
||||||||
|
|
|
|
|||||
Total other non-current assets, net |
$ | $ | ||||||
|
|
|
|
December 31, |
||||||||
2021 |
2020 |
|||||||
Accrued natural gas purchases |
$ | $ | ||||||
Interest costs and related debt fees |
||||||||
Liquefaction Project costs |
||||||||
Other |
||||||||
|
|
|
|
|||||
Total accrued liabilities |
$ | $ | ||||||
|
|
|
|
December 31, |
||||||||
2021 |
2020 |
|||||||
Senior Secured Notes: |
||||||||
|
$ | $ | ||||||
|
||||||||
|
||||||||
|
||||||||
|
||||||||
|
|
|
|
|||||
Total Senior Secured Notes |
||||||||
CCH Credit Facility (1) |
||||||||
$ |
||||||||
|
|
|
|
|||||
Total Debt |
||||||||
|
|
|
|
|||||
Current portion of long-term debt |
( |
) | ( |
) | ||||
Short-term debt |
( |
) | ( |
) | ||||
Unamortized discount and debt issuance costs, net |
( |
) | ( |
) | ||||
|
|
|
|
|||||
Total long-term debt, net of discount and debt issuance costs |
$ | $ | ||||||
|
|
|
|
(1) | A portion of the outstanding balance that is due within one year is classified as current portion of long-term debt. |
(2) | The CCH Working Capital Facility is classified as short-term debt. |
Years Ending December 31, |
Principal Payments |
|||
2022 |
$ | |||
2023 |
||||
2024 |
||||
2025 |
||||
2026 |
||||
Thereafter |
||||
|
|
|||
Total |
$ | |||
|
|
CCH Credit Facility (1) |
CCH Working Capital Facility (2) |
|||||||
Original facility size |
$ | $ | ||||||
Incremental commitments |
||||||||
Less: |
||||||||
Outstanding balance |
||||||||
Commitments prepaid or terminated |
||||||||
Letters of credit issued |
||||||||
|
|
|
|
|||||
Available commitment |
$ | $ | ||||||
Priority ranking |
Senior secured | Senior secured | ||||||
Interest rate on available balance |
|
LIBOR plus rate plus |
|
|
LIBOR plus base rate plus |
| ||
Weighted average interest rate of outstanding balance |
||||||||
Commitment fees on undrawn balance |
n/a | |||||||
Maturity date |
(1) | Our obligations under the CCH Credit Facility are secured by a first priority lien on substantially all of our and our subsidiaries assets and by a pledge by Cheniere CCH Holdco I, LLC of its limited liability company interests in us. |
(2) | Our obligations under the CCH Working Capital Facility are secured by substantially all of our and the CCH Guarantors assets as well as all of the membership interests in us and each of the CCH Guarantors on a pari passu |
(3) | These facilities were amended in 2021 to establish a SOFR-indexed replacement rate for LIBOR. |
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Total interest cost |
$ |
$ |
$ |
|||||||||
Capitalized interest, including amounts capitalized as an AFUDC |
( |
) | ( |
) | ( |
) | ||||||
|
|
|
|
|
|
|||||||
Total interest expense, net of capitalized interest |
$ | $ | $ | |||||||||
|
|
|
|
|
|
December 31, 2021 |
December 31, 2020 |
|||||||||||||||
Carrying Amount |
Estimated Fair Value |
Carrying Amount |
Estimated Fair Value |
|||||||||||||
Senior notes —Level 2 (1) |
$ | $ | $ | $ | ||||||||||||
Senior notes —Level 3 (2) |
||||||||||||||||
Credit facilities —Level 3 (3) |
(1) | The Level 2 estimated fair value was based on quotes obtained from broker-dealers or market makers of these senior notes and other similar instruments. |
(2) | The Level 3 estimated fair value was calculated based on inputs that are observable in the market or that could be derived from, or corroborated with, observable market data, including interest rates based on debt issued by parties with comparable credit ratings to us and inputs that are not observable in the market. |
(3) | The Level 3 estimated fair value approximates the principal amount because the interest rates are variable and reflective of market rates and the debt may be repaid, in full or in part, at any time without penalty. |
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
LNG revenues (1) |
$ | $ | $ | |||||||||
LNG revenues—affiliate |
||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues from customers |
||||||||||||
Net derivative gain (loss) (2) |
( |
) | ||||||||||
|
|
|
|
|
|
|||||||
Total revenues |
$ | $ | $ | |||||||||
|
|
|
|
|
|
(1) | LNG revenues include revenues for LNG cargoes in which our customers exercised their contractual right to not take delivery but remained obligated to pay fixed fees irrespective of such election. During the year |
ended December 31, 2020, we recognized $ |
(2) | See Note 7—Derivative Instruments for additional information about our derivatives. |
December 31, |
||||||||
2021 |
2020 |
|||||||
Contract assets, net of current expected credit losses |
$ | $ |
Year Ended December 31, 2021 |
||||
Deferred revenue, beginning of period |
$ | |||
Cash received but not yet recognized in revenue |
||||
Revenue recognized from prior period deferral |
||||
|
|
|||
Deferred revenue, end of period |
$ | |||
|
|
December 31, 2021 |
December 31, 2020 |
|||||||||||||||
Unsatisfied Transaction Price (in billions) |
Weighted Average Recognition Timing (years) (1) |
Unsatisfied Transaction Price (in billions) |
Weighted Average Recognition Timing (years) (1) |
|||||||||||||
LNG revenues |
$ | $ | ||||||||||||||
LNG revenues—affiliate |
||||||||||||||||
|
|
|
|
|||||||||||||
Total revenues |
$ | $ | ||||||||||||||
|
|
|
|
(1) | The weighted average recognition timing represents an estimate of the number of years during which we shall have recognized half of the unsatisfied transaction price. |
(1) | We omit from the table above all performance obligations that are part of a contract that has an original expected duration of one year or less. |
(2) | The table above excludes substantially all variable consideration under our SPAs. We omit from the table above all variable consideration that is allocated entirely to a wholly unsatisfied performance obligation or to a wholly unsatisfied promise to transfer a distinct good or service that forms part of a single performance obligation when that performance obligation qualifies as a series. The amount of revenue from variable fees that is not included in the transaction price will vary based on the future prices of Henry Hub throughout the contract terms, to the extent customers elect to take delivery of their LNG, and adjustments to the consumer price index. Certain of our contracts contain additional variable consideration based on the outcome of contingent events and the movement of various indexes. We have not included such variable consideration in the transaction price to the extent the consideration is considered constrained due to the uncertainty of ultimate pricing and receipt. Approximately |
the years ended December 31, 2021 and 2020, respectively, were related to variable consideration received from customers. |
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
LNG revenues—affiliate |
||||||||||||
Cheniere Marketing Agreements |
$ | $ | $ | |||||||||
Contracts for Sale and Purchase of Natural Gas and LNG |
||||||||||||
|
|
|
|
|
|
|||||||
Total LNG revenues—affiliate |
||||||||||||
Cost of sales—affiliate |
||||||||||||
Contracts for Sale and Purchase of Natural Gas and LNG |
||||||||||||
Cheniere Marketing Agreements |
||||||||||||
|
|
|
|
|
|
|||||||
Total cost of sales—affiliate |
||||||||||||
Cost of sales—related party |
||||||||||||
Natural Gas Supply Agreement (1) |
||||||||||||
Operating and maintenance expense—affiliate |
||||||||||||
Services Agreements |
||||||||||||
Land Agreements |
||||||||||||
|
|
|
|
|
|
|||||||
Total operating and maintenance expense—affiliate |
||||||||||||
Operating and maintenance expense—related party |
||||||||||||
Natural Gas Transportation Agreements |
||||||||||||
General and administrative expense—affiliate |
||||||||||||
Services Agreements |
(1) | Includes amounts recorded related to natural gas supply contracts that we had with a related party. This agreement ceased to be considered a related party agreement as of December 31, 2021, as discussed below. |
Years Ending December 31, |
Payments Due (1) |
|||
2022 |
$ | |||
2023 |
||||
2024 |
||||
2025 |
||||
2026 |
||||
Thereafter |
||||
|
|
|||
Total |
$ | |||
|
|
(1) | Pricing of natural gas supply contracts are variable based on market commodity basis prices adjusted for basis spread, and pricing of IPM agreements are variable based on global gas market prices less fixed |
liquefaction fees and certain costs by us . |
Percentage of Total Revenues from External Customers |
Percentage of Accounts Receivable, Net and Contract Assets, Net from External Customers |
|||||||||||||||||||
Year Ended December 31, |
December 31, |
|||||||||||||||||||
2021 |
2020 |
2019 |
2021 |
2020 |
||||||||||||||||
Customer A |
% | % | % | * | % | |||||||||||||||
Customer B |
% | % | % | * | * | |||||||||||||||
Customer C |
% | % | % | * | % | |||||||||||||||
Customer D |
* | * | * | * | % | |||||||||||||||
Customer E |
* | * | % | % | % | |||||||||||||||
Customer F |
* | * | % | * | % | |||||||||||||||
Customer G |
* | % | % | % | % |
* | Less than 10% |
Revenues from External Customers |
||||||||||||
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Spain |
$ | $ | $ | |||||||||
Singapore |
||||||||||||
Indonesia |
||||||||||||
Ireland |
||||||||||||
France |
||||||||||||
United States |
||||||||||||
|
|
|
|
|
|
|||||||
Total |
$ | $ | $ | |||||||||
|
|
|
|
|
|
Year Ended December 31, |
||||||||||||
2021 |
2020 |
2019 |
||||||||||
Cash paid during the period for interest, net of amounts capitalized |
$ | $ | $ | |||||||||
Non-cash distributions to affiliates for conveyance of assets |
Exhibit No. |
Incorporated by Reference (1) | |||||||||
Description |
Entity |
Form |
Exhibit |
Filing Date | ||||||
3.1 | Certificate of Formation of the Company | CCH | S-4 |
3.1 | 1/5/2017 | |||||
3.2 | Certificate of Correction to Certificate of Formation of the Company | CCH | S-4 |
3.2 | 1/5/2017 | |||||
3.3 | Amended and Restated Limited Liability Company Agreement of the Company | CCH | S-4 |
3.3 | 1/5/2017 | |||||
3.4 | Certificate of Formation of CCL | CCH | S-4 |
3.4 | 1/5/2017 |
Exhibit No. |
Incorporated by Reference (1) |
|||||||||||||||||
Description |
Entity |
Form |
Exhibit |
Filing Date |
||||||||||||||
10.49 | LNG Sale and Purchase Agreement (EOG Early IPM), dated December 30, 2019, between CCL (Seller) and Cheniere Marketing (Buyer) | CCH | 10-K |
10.34 | 2/25/2020 | |||||||||||||
21.1 | Subsidiaries of the Company | CCH | 10-K |
21.1 | 2/24/2022 | |||||||||||||
22.1* | Subsidiary Guarantors and Issuers of Guaranteed Securities and Affiliates Whose Securities Collateralize a Registrant’s Securities | |||||||||||||||||
23.1* | Consent of KPMG LLP | |||||||||||||||||
23.2* | Consent of Sidley Austin LLP (included in Exhibit 5.1) | |||||||||||||||||
24.1* | Powers of Attorney (included on the signature pages hereto) | |||||||||||||||||
25.1* | Statement of Eligibility of Trustee on Form T-1 with respect to the Indenture for the New Notes | |||||||||||||||||
99.1* | Form of Letter of Transmittal with respect to the Exchange Offer | |||||||||||||||||
99.2* | Form of Letter to the Depositary Trust Company Participants regarding the Exchange Offer | |||||||||||||||||
99.3* | Form of Letter to Beneficial Owners regarding the Exchange Offer | |||||||||||||||||
101.INS* | XBRL Instance Document—this instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. | |||||||||||||||||
101.SCH* | Inline XBRL Taxonomy Extension Schema Document | |||||||||||||||||
101.CAL* | Inline XBRL Taxonomy Extension Calculation Linkbase Document | |||||||||||||||||
101.DEF* | Inline XBRL Taxonomy Extension Definition Linkbase Document | |||||||||||||||||
101.LAB* | Inline XBRL Taxonomy Extension Labels Linkbase Document | |||||||||||||||||
101.PRE* | Inline XBRL Taxonomy Extension Presentation Linkbase Document | |||||||||||||||||
104* | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) | |||||||||||||||||
107* | Filing Fee Table |
* | Filed herewith. |
(b) | Financial Statement Schedule. |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Act; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
(2) | That, for the purpose of determining any liability under the Act, each such post-effective amendment will be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time will be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability of the registrant under the Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(5) | That, for purposes of determining liability of the registrant under the Act to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided however |
CHENIERE CORPUS CHRISTI HOLDINGS, LLC | ||
By: | /s/ Zach Davis | |
Name: Zach Davis | ||
Title: President and Chief Financial Officer |
Signature |
Title | |
/s/ Zach Davis Zach Davis |
Manager, President and Chief Financial Officer (Principal Executive and Financial Officer) | |
/s/ Aaron Stephenson Aaron Stephenson |
Manager | |
/s/ Michelle Dreyer Michelle A. Dreyer |
Manager | |
/s/ David Slack David Slack |
Chief Accounting Officer (Principal Accounting Officer) |
CORPUS CHRISTI LIQUEFACTION, LLC | ||
By: | /s/ Zach Davis | |
Name: Zach Davis | ||
Title: President and Chief Financial Officer |
Signature |
Title | |
/s/ Jack A. Fusco Jack A. Fusco |
Chief Executive Officer (Principal Executive Officer) | |
/s/ Zach Davis Zach Davis |
President and Chief Financial Officer (Principal Financial Officer) | |
/s/ David Slack David Slack |
Chief Accounting Officer (Principal Accounting Officer) |
CHENIERE CORPUS CHRISTI HOLDINGS, LLC, its sole member | ||
By: | /s/ Zach Davis | |
Name: | Zach Davis | |
Title: | President and Chief Financial Officer |
CHENIERE CORPUS CHRISTI PIPELINE, L.P. | ||
By: CORPUS CHRISTI PIPELINE GP, LLC, its general partner | ||
By: | /s/ Zach Davis | |
Name: | Zach Davis | |
Title: | President and Chief Financial Officer |
Signature |
Title | |
/s/ Aaron Stephenson Aaron Stephenson |
President (Principal Executive Officer) | |
/s/ Zach Davis Zach Davis |
Chief Financial Officer (Principal Financial Officer) | |
/s/ David Slack David Slack |
Chief Accounting Officer (Principal Accounting Officer) |
CORPUS CHRISTI PIPELINE GP, LLC, its general partner | ||
By: | /s/ Zach Davis | |
Name: | Zach Davis | |
Title: | President and Chief Financial Officer |
CORPUS CHRISTI PIPELINE GP, LLC | ||
By: | /s/ Zach Davis | |
Name: | Zach Davis | |
Title: | President and Chief Financial Officer |
Signature |
Title | |
/s/ Zach Davis Zach Davis |
President and Chief Financial Officer (Principal Executive and Financial Officer) | |
/s/ David Slack David Slack |
Chief Accounting Officer (Principal Accounting Officer) |
CHENIERE CORPUS CHRISTI HOLDINGS, LLC, its general partner | ||
By: | /s/ Zach Davis | |
Name: | Zach Davis | |
Title: | President and Chief Financial Officer |
Exhibit 5.1
|
SIDLEY AUSTIN LLP 1000 LOUISIANA STREET SUITE 5900 HOUSTON, TX 77002 +1 713 495 4500 +1 713 495 7799 FAX
AMERICA ASIA PACIFIC EUROPE |
March 11, 2022
Cheniere Corpus Christi Holdings, LLC
700 Milam Street, Suite 1900
Houston, Texas 77002
Re: 2.742% Senior Secured Notes due 2039
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-4 (the Registration Statement) being filed by Cheniere Corpus Christi Holdings, LLC, a Delaware limited liability company (the Company), and the direct and indirect subsidiaries of the Company listed in Schedule I hereto (the Guarantors) with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the Securities Act), relating to the registration of $750,000,000 principal amount of the Companys 2.742% Senior Secured Notes due 2039 (the New Notes) and the related guarantees of the New Notes (the New Guarantees) by the Guarantors, which are to be offered in exchange for an equivalent aggregate principal amount of the Companys outstanding 2.742% Senior Secured Notes due 2039 (the Old Notes) and the related guarantees of the Old Notes (the Old Guarantees) by the Guarantors. The Old Notes and the Old Guarantees were, and the New Notes and the New Guarantees will be, issued under an Indenture dated as of May 18, 2016 (the Original Indenture), as supplemented by the Third Supplemental Indenture dated as of September 6, 2019 (the Third Supplemental Indenture) and as further supplemented by the Fifth Supplemental Indenture dated August 24, 2021 (the Fifth Supplemental Indenture, and, together with the Original Indenture and the Third Supplemental Indenture, the Indenture), in each case, among the Company, the Guarantors named therein and The Bank of New York Mellon, as trustee (the Trustee).
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined the Registration Statement, the Indenture and the resolutions adopted by the board of managers of the Company relating to the Registration Statement, the Indenture and the issuance of the Old Notes and the New Notes by the Company and the resolutions adopted by the board of directors or similar governing body of each Guarantor relating to the Registration Statement, the Indenture and the issuance by each such Guarantor of its Old Guarantee and its New Guarantee. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Company and the Guarantors and other documents and instruments, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all
Cheniere Corpus Christi Holdings, LLC
March 11, 2022
Page 2
persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers of the Company and the Guarantors and other representatives of the Company and the Guarantors.
Based on and subject to the foregoing and the other limitations and qualifications set forth herein, we are of the opinion that the New Notes will be validly issued and binding obligations of the Company and the New Guarantees by the Guarantors will be valid and binding obligations of the Guarantors when:
(i) the Registration Statement, as finally amended, shall have become effective under the Securities Act and the Indenture shall have been qualified under the Trust Indenture Act of 1939, as amended; and
(ii) the New Notes shall have been duly executed by authorized officers of the Company and authenticated by the Trustee, all in accordance with the Indenture, and shall have been duly delivered against surrender and cancellation of a like principal amount of the Old Notes in the manner described in the Registration Statement.
Our opinion is subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, voidable transaction and other similar laws relating to or affecting creditors rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief. Our opinion is also subject to (i) provisions of law which may require that a judgment for money damages rendered by a court in the United States of America be expressed only in United States dollars, (ii) requirements that a claim with respect to any debt securities or other obligations that are denominated or payable other than in United States dollars (or a judgment denominated or payable other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (iii) governmental authority to limit, delay or prohibit the making of payments outside of the United States of America or in a foreign currency.
With respect to each instrument or agreement referred to in or otherwise relevant to the opinions set forth herein (each, an Instrument), we have assumed, to the extent relevant to the opinions set forth herein, that (i) each party to such Instrument (if not a natural person) was duly organized or formed, as the case may be, and was at all relevant times and is validly existing and in good standing under the laws of its jurisdiction of organization or formation, as the case may be, and had at all relevant times and has full right, power and authority to execute, deliver and perform its obligations under such Instrument, (ii) such Instrument has been duly authorized, executed and delivered by each party thereto and (iii) such Instrument was at all times and is a valid, binding and enforceable agreement or obligation, as the case may be, of each party thereto; provided that we make no such assumption in clause (i), (ii) or (iii) insofar as such assumption relates to the Company or the Guarantors. We have also assumed that no event has occurred or will occur that would cause the release of the New Guarantee by any Guarantor under the terms of the Indenture.
Cheniere Corpus Christi Holdings, LLC
March 11, 2022
Page 3
This opinion letter is limited to the Delaware Revised Uniform Limited Partnership Act and the Limited Liability Company Act of the State of Delaware and the laws of the State of New York (excluding the securities laws of such State). We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
We hereby consent to the filing of this opinion letter as an Exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours, |
/s/ Sidley Austin LLP |
Schedule I
Name of Guarantor |
State of Formation | |
Corpus Christi Liquefaction, LLC | Delaware | |
Corpus Christi Pipeline, L.P. | Delaware | |
Corpus Christi Pipeline GP, LLC | Delaware |
Exhibit 22.1
Cheniere Corpus Christi Holdings, LLC
Subsidiary Guarantors and Issuers of Guaranteed Securities and Affiliates Whose Securities Collateralize a Registrants Securities
The following entities are guarantors of the 7.000% Senior Secured Notes due 2024, 5.875% Senior Secured Notes due 2025, 5.125% Senior Secured Notes due 2027, 3.700% Senior Secured Notes due 2029, and the series of Senior Secured Notes due 2039 with weighted average rate of 3.72% issued by Cheniere Corpus Christi Holdings, LLC (the Senior Notes). The Senior Notes are secured on a first-priority basis, subject only to permitted liens, by security interests in all collateral owned or at any time acquired by the Issuer and the Guarantors.
Entity |
Jurisdiction of Organization |
Role | ||
Cheniere Corpus Christi Holdings, LLC | Delaware | Issuer | ||
Corpus Christi Liquefaction, LLC | Delaware | Guarantor / Pledged Collateral | ||
Corpus Christi Pipeline GP, LLC | Delaware | Guarantor / Pledged Collateral | ||
Cheniere Corpus Christi Pipeline, L.P. | Delaware | Guarantor / Pledged Collateral |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated February 23, 2022, with respect to the consolidated financial statements of Cheniere Corpus Christi Holdings, LLC included herein and to the reference to our firm under the heading Experts in the prospectus.
Houston, Texas
March 11, 2022
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
The Bank of New York Mellon
(Exact name of trustee as specified in its charter)
New York | 13-5160382 | |
(Jurisdiction of incorporation if not a U.S. national bank) |
(I.R.S. Employer Identification No.) | |
240 Greenwich Street New York, New York |
10286 | |
(Address of principal executive offices) | (Zip code) |
Legal Department
The Bank of New York Mellon
240 Greenwich Street
New York, NY 10286
(212) 635-1270
(Name, address and telephone number of agent for service)
Cheniere Corpus Christi Holdings, LLC
(Exact name of obligor as specified in its charter)
Delaware | 47-1929160 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
700 Milam Street, Suite 1900 Houston, Texas |
77002 | |
(Address of principal executive offices) | (Zip code) |
2.742% Senior Secured Notes due 2039
(Title of the indenture securities)
TABLE OF ADDITIONAL OBLIGORS
Exact Name of Obligor as Specified in |
State or other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address, Including Zip Code, of Registrants Principal Executive Offices | |||
Corpus Christi Liquefaction, LLC |
Delaware | 35-2445602 | 700 Milam Street, Suite 1900 Houston, Texas 77002 | |||
Cheniere Corpus Christi Pipeline, L.P. |
Delaware | 20-4711857 | 700 Milam Street, Suite 1900 Houston, Texas 77002 | |||
Corpus Christi Pipeline GP, LLC |
Delaware | 47-1936771 | 700 Milam Street, Suite 1900 Houston, Texas 77002 |
Item 1. | General Information. |
Furnish the following information as to the Trustee:
(a) | Name and address of each examining or supervising authority to which it is subject. |
Superintendent of the Department of Financial |
One State Street, New York, N.Y. 10004-1417 | |
Federal Reserve Bank of New York | 33 Liberty Street, New York, N.Y. 10045 | |
Federal Deposit Insurance Corporation | 550 17th Street, NW, Washington, D.C. 20429 | |
The Clearing House Association L.L.C. | 100 Broad Street, New York, N.Y. 10004 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Item 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act).
1. | - | A copy of the Organization Certificate of The Bank of New York Mellon (formerly The Bank of New York (formerly Irving Trust Company)) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed as Exhibit 25.1 to Current Report on Form 8-K of Nevada Power Company, Date of Report (Date of Earliest Event Reported) July 25, 2008 (File No. 000-52378).) | ||
4. | - | A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494.) | ||
6. | - | The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519.) | ||
7. | - | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 9th day of March, 2022.
THE BANK OF NEW YORK MELLON | ||
By: | /s/ Michael Commisso | |
Name: Michael Commisso | ||
Title: Vice President |
EXHIBIT 7
(Page i of iii)
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2021, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
ASSETS |
Dollar amounts in thousands | |||
Cash and balances due from depository institutions: |
||||
Noninterest-bearing balances and currency and coin |
5,236,000 | |||
Interest-bearing balances |
111,594,000 | |||
Securities: |
||||
Held-to-maturity securities |
56,862,000 | |||
Available-for-sale debt securities |
101,202,000 | |||
Equity securities with readily determinable fair values not held for trading |
3,000 | |||
Federal funds sold and securities purchased under agreements to resell: |
||||
Federal funds sold in domestic offices |
0 | |||
Securities purchased under agreements to resell |
12,623,000 | |||
Loans and lease financing receivables: |
||||
Loans and leases held for sale |
0 | |||
Loans and leases held for investment |
31,038,000 | |||
LESS: Allowance for loan and lease losses |
177,000 | |||
Loans and leases held for investment, net of allowance |
30,861,000 | |||
Trading assets |
11,791,000 | |||
Premises and fixed assets (including capitalized leases) |
2,938,000 | |||
Other real estate owned |
1,000 | |||
Investments in unconsolidated subsidiaries and associated companies |
1,523,000 | |||
Direct and indirect investments in real estate ventures |
0 | |||
Intangible assets |
7,069,000 | |||
Other assets |
14,522,000 | |||
|
|
|||
Total assets |
356,225,000 | |||
|
|
EXHIBIT 7
(Page ii of iii)
LIABILITIES |
||||
Deposits: |
||||
In domestic offices |
197,707,000 | |||
Noninterest-bearing |
89,955,000 | |||
Interest-bearing |
107,752,000 | |||
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
114,105,000 | |||
Noninterest-bearing |
7,084,000 | |||
Interest-bearing |
107,021,000 | |||
Federal funds purchased and securities sold under agreements to repurchase: |
||||
Federal funds purchased in domestic offices |
0 | |||
Securities sold under agreements to repurchase |
4,711,000 | |||
Trading liabilities |
2,940,000 | |||
Other borrowed money: |
741,000 | |||
Not applicable |
||||
Not applicable |
||||
Subordinated notes and debentures |
0 | |||
Other liabilities |
7,623,000 | |||
|
|
|||
Total liabilities |
327,827,000 | |||
|
|
|||
EQUITY CAPITAL |
||||
Perpetual preferred stock and related surplus |
0 | |||
Common stock |
1,135,000 | |||
Surplus (exclude all surplus related to preferred stock) |
11,763,000 | |||
Retained earnings |
16,487,000 | |||
Accumulated other comprehensive income |
-987,000 | |||
Other equity capital components |
0 | |||
Total bank equity capital |
28,398,000 | |||
Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
Total equity capital |
28,398,000 | |||
|
|
|||
Total liabilities and equity capital |
356,225,000 | |||
|
|
EXHIBIT 7
(Page iii of iii)
I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Emily Portney
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
Thomas P. Gibbons Samuel C. Scott Joseph J. Echevarria |
Directors |
Exhibit 99.1
LETTER OF TRANSMITTAL
CHENIERE CORPUS CHRISTI HOLDINGS, LLC
OFFER TO EXCHANGE UP TO
$750,000,000 OF 2.742% SENIOR SECURED NOTES DUE 2039
(CUSIP NO. 16412X AL9)
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR
$750,000,000 OF 2.742% SENIOR SECURED NOTES DUE 2039
(CUSIP NOS. 16412X AK1 AND U16327 AE5)
THAT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
PURSUANT TO THE PROSPECTUS
DATED , 2022
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2022, UNLESS EXTENDED (SUCH TIME AND DATE, THE EXPIRATION DATE). TENDERS IN THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
Deliver to The Bank of New York Mellon
(the Exchange Agent)
By Hand or
Overnight Delivery:
The Bank of New York Mellon
2001 Bryan Street, 10th Floor
Dallas Texas 75201
Attention: Corporate Trust Operations
Telephone:
1-800-254-2826
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU SHOULD READ THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL BEFORE COMPLETING IT.
The undersigned hereby acknowledges receipt of the prospectus dated , 2022 (the Prospectus) of Cheniere Corpus Christi Holdings, LLC, a Delaware limited liability company (the Company), and this Letter of Transmittal, which together describe the offer of the Company (the exchange offer) to exchange, pursuant to a registration statement of which the Prospectus forms a part, up to (i) $750,000,000 aggregate principal amount of its 2.742% Senior Secured Notes due 2039 (the New Notes) that have been registered under the Securities Act of 1933, as amended (the Securities Act), for a like principal amount of its issued and outstanding 2.742% Senior Secured Notes due 2039 (the Old Notes) that have not been registered under the Securities Act. Certain terms used but not defined herein have the respective meanings given to them in the Prospectus. In the event of any conflict between this Letter of Transmittal and the Prospectus, the Prospectus shall govern.
The Company reserves the right, at any time or from time to time, to extend the exchange offer at its discretion, in which event the term expiration date shall mean the latest time and date to which the exchange offer is extended. The Company shall give notice of any extension by giving oral, confirmed in writing, or written notice to the Exchange Agent and by means of a press release or other public announcement prior to 9:00 a.m., New York City time, on the first business day after the previously scheduled expiration date. The term business day shall mean any day that is not a Saturday, Sunday or day on which banks are authorized by law to close in the State of New York.
This Letter of Transmittal is to be completed by a holder of Old Notes if certificates for such Old Notes are to be forwarded herewith and may be used if a tender is to be made by book-entry transfer of Old Notes to the account maintained by the Exchange Agent at The Depository Trust Company (DTC) pursuant to DTCs Automated Tender Offer Program (ATOP) and an Agents Message (as defined below) is not delivered to the Exchange Agent. If Old Notes are tendered by book-entry transfer pursuant to DTCs ATOP procedures, the tendering holder may cause DTC to deliver an Agents Message to the Exchange Agent in lieu of this Letter of Transmittal. The term Agents Message means a computer-generated message, transmitted by DTC to and received by the Exchange Agent and forming a part of a Book-Entry Confirmation (as defined below), which states that the holder of the Old Notes acknowledges and agrees to be bound by the terms of this Letter of Transmittal. The term Book-Entry Confirmation means an electronic confirmation from DTC of the book-entry transfer of Old Notes into the Exchange Agents account at DTC.
Delivery of documents to DTC does not constitute delivery to the Exchange Agent.
The method of delivery (whether physical or electronic) of Old Notes, Letters of Transmittal, Agents Messages, Book-Entry Confirmations and all other required documents is at your risk and election, provided that Old Notes in book-entry form must be tendered through DTCs ATOP procedures. If such delivery is by mail, it is recommended that you use registered mail, properly insured, with return receipt requested. In all cases, you should allow sufficient time to assure timely delivery. You may request the broker, dealer, bank or other financial institution or nominee through which you may hold Old Notes to effect these transactions for you. No Letters of Transmittal, Old Notes or other documents should be sent to the Company.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY BEFORE CHECKING ANY BOX BELOW. THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS OR THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT. SEE INSTRUCTION 12.
List below the Old Notes to which this Letter of Transmittal relates. If the space provided below is inadequate, the Certificate or Registration Numbers and Principal Amounts should be listed on a separately signed schedule affixed hereto.
DESCRIPTION OF OLD NOTES TENDERED OLD NOTES |
||||||||||||
Name(s) and Address(es) of Registered Holder(s) of Old Notes, Exactly as Name(s) Appear(s) on Old Notes |
Certificate or Registration Number* |
Aggregate Principal Amount Represented by Old Notes |
Principal Amount Tendered** |
|||||||||
Total |
* | Need not be completed by book-entry holders. |
** | Unless otherwise indicated, the holder will be deemed to have tendered the full aggregate principal amount represented by such Old Notes. All tenders must be in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof. |
☐ | CHECK HERE IF TENDERED OLD NOTES ARE ENCLOSED HEREWITH |
☐ | CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS ONLY): |
Name of Tendering Institution:
Account Number:
Transaction Code Number:
Name of Tendering Institution:
Address:
Area Code and Telephone Number:
2
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the exchange offer, the undersigned hereby tenders to the Company for exchange the principal amount of Old Notes indicated above. Subject to and effective upon the acceptance for exchange of the principal amount of Old Notes tendered in accordance with this Letter of Transmittal, the undersigned hereby exchanges, assigns and transfers to the Company all right, title and interest in and to the Old Notes tendered for exchange hereby. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as the agent of the Company in connection with the exchange offer) with respect to the tendered Old Notes with full power of substitution to:
| deliver such Old Notes, or transfer ownership of such Old Notes on the account books maintained by DTC, to the Company and deliver all accompanying evidences of transfer and authenticity; and |
| present such Old Notes for transfer on the books of the Company and receive all benefits and otherwise exercise all rights of beneficial ownership of such Old Notes; all in accordance with the terms of the exchange offer. The power of attorney granted in this paragraph shall be deemed to be irrevocable and coupled with an interest. |
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, exchange, assign and transfer the Old Notes tendered hereby and to acquire the New Notes issuable upon the exchange of such tendered Old Notes, and that the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim, when the same are accepted for exchange by the Company.
The undersigned acknowledges that this exchange offer is being made in reliance upon interpretations contained in no-action letters issued to third parties by the staff of the Securities and Exchange Commission (the SEC), including Exxon Capital Holdings Corporation, SEC No-Action Letter (available May 13, 1988), Morgan Stanley & Co. Incorporated, SEC No-Action Letter (available June 5, 1991) (the Morgan Stanley Letter) and Shearman & Sterling, SEC No-Action Letter (available July 2, 1993), and that the New Notes issued in exchange for the Old Notes pursuant to the exchange offer may be offered for resale, resold and otherwise transferred by holders thereof (other than a broker-dealer who purchased Old Notes exchanged for such New Notes directly from the Company to resell pursuant to Rule 144A or any other available exemption under the Securities Act or a person that is an affiliate of the Company or of any of the subsidiary guarantors named in the Prospectus within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Notes are acquired in the ordinary course of such holders business and such holders are not participating in, and have no arrangement with any person to participate in, the distribution of such New Notes. The undersigned specifically represents to the Company that:
| any New Notes acquired in exchange for Old Notes tendered hereby are being acquired in the ordinary course of business of the person receiving such New Notes whether or not such person is the undersigned; |
| neither the holder of Old Notes nor any such other person has an arrangement or understanding with any person to participate in the distribution of New Notes; |
3
| neither the undersigned nor any such other person is an affiliate (as defined in Rule 405 under the Securities Act) of the Company or of any of the subsidiary guarantors named in the Prospectus or is a broker-dealer tendering Old Notes acquired directly from the Company for resale pursuant to Rule 144A or any other available exemption under the Securities Act; and |
| the undersigned is not engaged in, and does not intend to engage in, a distribution of New Notes. |
If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes that were acquired as a result of market-making activities or other trading activities, it acknowledges that it may be a statutory underwriter and it will deliver a prospectus in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an underwriter within the meaning of the Securities Act. The undersigned acknowledges that if the undersigned is participating in the exchange offer for the purpose of distributing the New Notes:
| the undersigned cannot rely on the position of the staff of the SEC in the Morgan Stanley Letter and similar SEC no-action letters, and, in the absence of an exemption therefrom, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction of the New Notes, in which case the registration statement must contain the selling security holder information required by Item 507 of Regulation S-K of the SEC; and |
| failure to comply with such requirements in such instance could result in the undersigned incurring liability for which the undersigned is not indemnified by the Company. |
The undersigned will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or the Company to be necessary or desirable to complete the exchange, assignment and transfer of the Old Notes tendered hereby, including the transfer of such Old Notes on the account books maintained by DTC.
The Company has agreed, subject to the terms of the registration rights agreements, that for a period of not more than 180 days after the date of the effectiveness of the registration statement of which the Prospectus forms a part, it will make the Prospectus, as amended or supplemented from time to time, available to any participating broker-dealer for use in connection with resales of the New Notes. Each participating broker-dealer, by tendering Old Notes and executing this Letter of Transmittal, or delivering an agents message (as defined in the Prospectus) instead of this Letter of Transmittal, agrees that, upon receipt of notice from the Company of the occurrence of any event or the discovery of any fact which makes any statement contained or incorporated by reference in the Prospectus untrue in any material respect or which causes the Prospectus to omit to state a material fact necessary in order to make the statements contained or incorporated by reference in the Prospectus, in light of the circumstances under which they were made, not misleading, the participating broker-dealer will suspend the resale of New Notes under the Prospectus. Each participating broker-dealer further agrees that, upon receipt of a notice from the Company to suspend the resale of New Notes as provided above, the participating broker-dealer will suspend resales of the New Notes until (1) the Company has amended or supplemented the Prospectus to correct the misstatement or omission and has furnished copies of the amended or supplemented Prospectus to the participating broker-dealer or (2) the Company has given notice that the sale of the New Notes may be resumed, as the case may be. If the Company gives notice to suspend the resale of the New Notes as provided above, it will extend the period referred to above during which participating broker-dealers are entitled to use the Prospectus in connection with the resale of New Notes by the number of days during the period from and including the date of the giving of such notice to and including the date when participating broker-dealers receive copies of the supplemented or amended Prospectus necessary to permit resales of the New Notes or to and including the date on which the Company has given notice that the resale of New Notes may be resumed, as the case may be.
For purposes of the exchange offer, the Company shall be deemed to have accepted for exchange validly tendered Old Notes when, as and if the Company gives oral or written notice thereof to the Exchange Agent. Any tendered Old Notes that are not accepted for exchange pursuant to the exchange offer for any reason will be returned, without expense, to the undersigned at the address shown below or at a different address as may be indicated herein under Special Delivery Instructions as promptly as practicable after the expiration date.
4
All authority conferred or agreed to be conferred by this Letter of Transmittal shall survive the death, incapacity or dissolution of the undersigned, and every obligation of the undersigned under this Letter of Transmittal shall be binding upon the undersigneds heirs, personal representatives, successors and assigns.
The undersigned acknowledges that the acceptance of properly tendered Old Notes by the Company pursuant to the procedures described under the caption The Exchange Offer Procedures for Tendering in the Prospectus and in the instructions hereto will constitute a binding agreement between the undersigned and the Company upon the terms and subject to the conditions of the exchange offer.
Unless otherwise indicated under Special Issuance Instructions, the Company will issue the New Notes issued in exchange for the Old Notes accepted for exchange, and return any Old Notes not tendered or not exchanged, in the name of the undersigned. Similarly, unless otherwise indicated under Special Delivery Instructions, the Company will mail or deliver the New Notes issued in exchange for the Old Notes accepted for exchange and any Old Notes not tendered or not exchanged (and accompanying documents, as appropriate) to the undersigned at the address shown below the undersigneds signature. In the event that both Special Issuance Instructions and Special Delivery Instructions are completed, the Company will issue the New Notes issued in exchange for the Old Notes accepted for exchange in the name of, and return any Old Notes not tendered or not exchanged to, the person(s) so indicated. The undersigned recognizes that the Company has no obligation pursuant to the Special Issuance Instructions and Special Delivery Instructions to transfer any Old Notes from the name of the registered holder(s) thereof if the Company does not accept for exchange any of the Old Notes so tendered for exchange.
SPECIAL ISSUANCE INSTRUCTIONS (SEE INSTRUCTIONS 4 AND 5)
☐ Check this box if your certificates have been lost, stolen, misplaced or mutilated. See Instructions 4 and 11 on the reverse side of this form.
SPECIAL ISSUANCE INSTRUCTIONS (SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY (i) if Old Notes in a principal amount not tendered, or New Notes issued in exchange for Old Notes accepted for exchange, are to be issued in the name of someone other than the undersigned, or (ii) if Old Notes tendered by book-entry transfer that are not exchanged are to be returned by credit to an account maintained at DTC other than the account indicated above.
Issue New Notes and/or Old Notes to:
Name(s): |
Account No. (if Applicable): |
Address: |
(Include Zip Code) |
Area Code and Telephone Number: |
Tax Identification or |
Social Security Number: |
DTC Account Number: |
5
(PLEASE PRINT OR TYPE)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if Old Notes in a principal amount not tendered, or New Notes issued in exchange for Old Notes accepted for exchange, are to be mailed or delivered to someone other than the undersigned, or to the undersigned at an address other than that shown below the undersigneds signature.
Mail or deliver New Notes and/or Old Notes to:
Name(s): | ||
Account No. (if Applicable): | ||
Address: | ||
(Include Zip Code) | ||
Area Code and Telephone Number: | ||
Tax Identification or | ||
Social Security Number: | ||
Is this a permanent address change? (check one box) | ||
☐ Yes ☐ No |
(PLEASE PRINT OR TYPE)
IMPORTANT: PLEASE SIGN HERE WHETHER OR NOT OLD NOTES ARE BEING
PHYSICALLY TENDERED HEREBY
(COMPLETE ACCOMPANYING IRS FORM W-9)
SIGNATURES REQUIRED
Signatures of Registered Holders of Old Notes
X
X
(The above lines must be signed by the registered holders of Old Notes as their names appear on the Old Notes or on a security position listing, or by persons authorized to become registered holders by a properly completed bond power from the registered holders, a copy of which must be transmitted with this Letter of Transmittal. If Old Notes to which this Letter of Transmittal relate are held of record by two or more joint holders, then all such holders must
6
sign this Letter of Transmittal. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, then such person must set forth his or her full title below and, unless waived by the Company, submit evidence satisfactory to the Company of such persons authority so to act. See Instruction 4 regarding the completion of this Letter of Transmittal, printed below.)
PLEASE PRINT OR TYPE: |
Name and Capacity (Full Title): |
Address (Including Zip Code): |
Area Code and Telephone No.: ( ) |
Tax Identification or Social Security No: |
Dated: |
SIGNATURE GUARANTEE (If required see Instruction 4) |
Certain signatures must be guaranteed by an eligible institution. |
Authorized Signature: |
(Signature of Representative of Signature Guarantor) |
Name and Title: |
Name of Firm: |
Address (Including Zip Code): |
Area Code and Telephone No.: ( ) |
Dated: |
7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Old Notes. A holder of Old Notes may tender the same by (i) properly completing and signing this Letter of Transmittal and delivering the same, together with the certificate or certificates, if applicable, representing the Old Notes being tendered and any required signature guarantees and any other documents required by this Letter of Transmittal, to the Exchange Agent at its address set forth above on or prior to the Expiration Date or (ii) complying with the procedure for book-entry transfer described below. Old Notes tendered hereby must be in denominations of $2,000 or any integral multiple of $1,000 in excess thereof.
For purposes of the Exchange Offer, the Exchange Agent will establish an account at DTC with respect to the Old Notes promptly after the date of the Prospectus. DTC participants may make book-entry delivery of Old Notes by causing DTC to transfer such Old Notes into the Exchange Agents account at DTC in accordance with DTCs Automated Tender Offer Program (ATOP) procedures for such transfer. However, although delivery of Old Notes may be effected through book-entry transfer at DTC, an Agents Message (as defined in the next paragraph) in connection with a book-entry transfer and any other required documents, must, in any case, be transmitted to and received by the Exchange Agent at the address specified on the cover page of this Letter of Transmittal on or prior to the Expiration Date for a holder to have validly tendered its Old Notes.
A holder may tender Old Notes that are held through DTC by transmitting its acceptance through DTCs ATOP, for which the transaction will be eligible, and DTC will then edit and verify the acceptance and send an Agents Message to the Exchange Agent for its acceptance. The term Agents Message means a message transmitted by DTC to, and received by, the Exchange Agent and forming part of the book-entry confirmation, which states that DTC has received an express acknowledgment from the participant tendering the Old Notes, that such participant has received the Letter of Transmittal and agrees to be bound by the terms of this Letter of Transmittal and that the Company may enforce such agreement against such participant. Delivery of an Agents Message will also constitute an acknowledgment from the tendering DTC participant that the representations and warranties set forth in this Letter of Transmittal are true and correct.
DELIVERY OF THE AGENTS MESSAGE BY DTC WILL SATISFY THE TERMS OF THE EXCHANGE OFFER AS TO EXECUTION AND DELIVERY OF A LETTER OF TRANSMITTAL BY THE PARTICIPANT IDENTIFIED IN THE AGENTS MESSAGE.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE OLD NOTES AND ALL OTHER REQUIRED DOCUMENTS, OR BOOK-ENTRY TRANSFER AND TRANSMISSION OF AN AGENTS MESSAGE BY A DTC PARTICIPANT, ARE AT THE ELECTION AND RISK OF THE TENDERING HOLDERS. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT HOLDERS USE AN OVERNIGHT OR HAND-DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR OLD NOTES SHOULD BE SENT TO THE COMPANY OR DTC. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO EFFECT THE TENDERS FOR SUCH HOLDERS. SEE THE EXCHANGE OFFER SECTION OF THE PROSPECTUS.
2. Tender by Holder. Only a holder of Old Notes may tender such Old Notes in the exchange offer. Any beneficial owner of Old Notes who is not the registered holder and who wishes to tender should arrange with the registered holder to execute and deliver this Letter of Transmittal on his behalf or must, prior to completing and executing this Letter of Transmittal and delivering his Old Notes, either make appropriate arrangements to register ownership of the Old Notes in such beneficial owners name or obtain a properly completed bond power from the registered holder.
3. Partial Tenders. Tenders of Old Notes will be accepted only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. If less than the entire principal amount of any Old Notes is tendered, the tendering holder should fill in the principal amount tendered in the fourth column of the box entitled Description of Old Notes Tendered above. The entire principal amount of Old Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated. If the entire principal amount of all Old
8
Notes is not tendered, then Old Notes for the principal amount of Old Notes not tendered and New Notes issued in exchange for any Old Notes accepted will be sent to the holder at his or her registered address, unless a different address is provided in the appropriate box on this Letter of Transmittal, promptly after the Old Notes are accepted for exchange.
4. Signatures on this Letter of Transmittal; Bond Powers and Endorsements; Guarantee of Signatures. If this Letter of Transmittal is signed by the record holders of the Old Notes tendered hereby, the signatures must correspond with the names as written on the face of the Old Notes without alteration, enlargement or any change whatsoever. If this Letter of Transmittal is signed by a participant in the DTC, the signature must correspond with the name as it appears on the security position listing as the holder of the Old Notes.
If this Letter of Transmittal is signed by the registered holders of Old Notes listed and tendered hereby and the New Notes issued in exchange therefor are to be issued (or any untendered principal amount of Old Notes is to be reissued) to the registered holders, such holders need not and should not endorse any tendered Old Notes, nor provide a separate bond power. In any other case, such holders must either properly endorse the Old Notes tendered or transmit a properly completed separate bond power with this Letter of Transmittal, with the signatures on the endorsement or bond power guaranteed by an eligible institution.
If this Letter of Transmittal is signed by a person other than the registered holders of any Old Notes listed, such Old Notes must be endorsed or accompanied by appropriate bond powers, in each case signed as the names of the registered holders appear on the Old Notes.
If this Letter of Transmittal or any Old Notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, evidence satisfactory to the Company of their authority to act must be submitted with this Letter of Transmittal.
Endorsements on Old Notes or signatures on bond powers required by this Instruction 4 must be guaranteed by an eligible institution. No signature guarantee is required if:
| this Letter of Transmittal is signed by the registered holders of the Old Notes tendered herein (or by a participant in one of the book-entry transfer facilities whose name appears on a security position listing as the owner of the tendered Old Notes) and the New Notes are to be issued directly to such registered holders (or, if signed by a participant in one of the book-entry transfer facilities, deposited to such participants account at the book-entry transfer facility) and neither the box entitled Special Delivery Instructions nor the box entitled Special Issuance Instructions has been completed; or |
| such Old Notes are tendered for the account of an eligible institution. |
In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an eligible institution.
5. Special Issuance and Delivery Instructions. Tendering holders should indicate, in the applicable box or boxes, the name and address (or account at the book-entry transfer facility) in and to which New Notes or substitute Old Notes for principal amounts not tendered or not accepted for exchange are to be issued or sent, if different from the name and address of the persons signing this Letter of Transmittal. In the case of issuance in a different name, the taxpayer identification or social security number of the persons named must also be indicated.
6. Transfer Taxes. The Company will pay all transfer taxes, if any, applicable to the transfer and exchange of Old Notes pursuant to the exchange offer. If, however, New Notes or Old Notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holders of the Old Notes tendered hereby, or if tendered Old Notes are registered in the name of any person other than the persons signing this Letter of Transmittal, or if a transfer tax is imposed for any reason other than the transfer and exchange of Old Notes to the Company or its order pursuant to the exchange offer, then the amount of any such transfer taxes (whether imposed on the registered holders or any other persons) will be payable by the tendering holders prior to the issuance of the New Notes or delivery or registering of the Old Notes. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with this Letter of Transmittal, the amount of such transfer taxes will be billed directly to such tendering holders.
9
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE OLD NOTES LISTED IN THIS LETTER OF TRANSMITTAL.
7. U.S. Federal Backup Withholding, Form W-9, Form W-8. U.S. federal income tax law requires that a holder of Old Notes, whose notes are accepted for exchange, provide the Exchange Agent, as payer, with the holders correct taxpayer identification number (TIN) or otherwise establish a basis for an exemption from backup withholding. Such holder should use the enclosed Internal Revenue Service (IRS) Form W-9 for this purpose and should (i) enter its name, federal tax classification, address and TIN on the face of the IRS Form W-9, (ii) if such holder is a corporation or other entity that is exempt from backup withholding, or if such holder is exempt from FATCA reporting, provide its Exempt payee code or Exemption from FATCA reporting code and (iii) sign and date the IRS Form W-9 and return it to the Exchange Agent. In the case of a holder who is an individual, other than a resident alien, the TIN is his or her social security number. For holders other than individuals, the TIN is an employer identification number. A holder must cross out item (2) in Part II on the Form W-9 if such holder is subject to backup withholding. If the holder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future, the holder should write Applied For in the space provided for the TIN in Part I of the Form W-9. If Applied For is written in the space provided for the TIN in Part I of the Form W-9 and the Exchange Agent is not provided with a TIN by the time of payment, the Exchange Agent will withhold 24% from all such payments with respect to the Old Notes.
Certain holders (including, among others, corporations and certain foreign persons) are not subject to these backup withholding requirements. Exempt holders (other than foreign persons) should furnish their TIN, complete the certification in Part II of the Form W-9, and sign and return the Form W-9 to the Exchange Agent. Each holder that is a foreign person, including entities, must submit an appropriate properly completed Internal Revenue Service Form W-8, certifying, under penalties of perjury, to such holders foreign status in order to establish an exemption from backup withholding. An appropriate Form W-8 can be obtained via the IRS website at www.irs.gov or by contacting the Exchange Agent.
If a holder of Old Notes does not provide the Exchange Agent with its correct TIN or an adequate basis for an exemption or an appropriate completed IRS Form W-8, such holder may be subject to backup withholding on payments made in exchange for any Old Notes and a penalty imposed by the IRS. Backup withholding is not an additional federal income tax. Rather, the amount of tax withheld will be credited against the federal income tax liability of the holder subject to backup withholding. If backup withholding results in an overpayment of taxes, the taxpayer may obtain a refund from the IRS. Each holder should consult with a tax advisor regarding qualifications for exemption from backup withholding and the procedure for obtaining the exemption.
To prevent backup withholding, each holder of Old Notes must either (1) provide a completed IRS Form W-9 and indicate either (a) its correct TIN, or (b) an adequate basis for an exemption, or (2) provide a completed Form W-8.
The Company reserves the right in its sole discretion to take whatever steps are necessary to comply with the Companys obligations regarding backup withholding.
8. Validity of Tenders. All questions as to the form of all documents and the validity, eligibility (including time of receipt), acceptance and withdrawal of tendered Old Notes will be determined by the Company in its sole discretion, which determination will be final and binding. The Company reserves the absolute right to reject any and all Old Notes not properly tendered or any Old Notes the acceptance of which would, in the opinion of the Company or its counsel, be unlawful. The Company also reserves the absolute right to waive any conditions of the exchange offer or defects or irregularities in tenders as to particular Old Notes. The interpretation of the terms and conditions by the Company of the exchange offer (which includes this Letter of Transmittal and the instructions hereto) shall be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Old Notes must be cured within such time as the Company shall determine. The Company will not consider the tender of Old Notes to have been validly made until all defects and irregularities have been waived or cured. Neither the Company, the Exchange Agent nor any other person shall be under any duty to give notification of defects or irregularities with regard to tenders of Old Notes nor shall any of them incur any liability for failure to give such information.
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9. Waiver of Conditions. The Company reserves the absolute right to waive, in whole or in part, any of the conditions to the exchange offer set forth in the Prospectus.
10. No Conditional Tender. No alternative, conditional, irregular or contingent tender of Old Notes or transmittal of this Letter of Transmittal will be accepted.
11. Mutilated, Lost, Stolen or Destroyed Old Notes. Any holder whose Old Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions.
12. Requests for Assistance or Additional Copies. Requests for assistance or for additional copies of the Prospectus or this Letter of Transmittal may be directed to the Exchange Agent at the address or telephone number set forth on the cover page of this Letter of Transmittal. Holders may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the exchange offer.
13. Withdrawal. Tenders may be withdrawn only pursuant to the withdrawal rights set forth in the Prospectus under the caption The Exchange Offer Withdrawal Rights.
IMPORTANT: THIS LETTER OF TRANSMITTAL (TOGETHER WITH THE OLD NOTES DELIVERED BY BOOK-ENTRY TRANSFER OR IN ORIGINAL HARD COPY FORM) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
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Form W-9
(Rev. October 2018) Department of the Treasury Internal Revenue Service |
Request for Taxpayer Identification Number and Certification
u Go to www.irs.gov/FormW9 for instructions and the latest information. |
Give Form to the requester. Do not send to the IRS.
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Print or type See Specific Instructions on page 3.
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1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank.
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2 Business name/disregarded entity name, if different from above
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3 Check appropriate box for federal tax classification of the
person whose name is entered on line 1. Check
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4 Exemptions (codes apply only to
Exempt payee code (if any)
Exemption from FATCA reporting code (if any)
(Applies to accounts maintained outside the U.S.)
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☐ Individual/sole proprietor or single-member LLC
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☐ |
C Corporation | ☐ |
S Corporation | ☐ |
Partnership | ☐ |
Trust/estate | ||||||||||||||
☐ Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) u
Note: Check the appropriate box in the line
above for the tax classification of the single-member owner.
☐ Other (see instructions) u
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5 Address (number, street, and apt. or suite no.) See instructions.
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Requesters name and address (optional) | |||||||||||||||||||||
6 City, state, and ZIP code
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7 List account number(s) here (optional)
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Part I |
Taxpayer Identification Number (TIN) | |
Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later.
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Social security number
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- |
- | |||||||||||||||||||||||
or |
Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter. |
Employer identification number |
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Part II | Certification |
Under penalties of perjury, I certify that:
1. | The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and |
2. | I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and |
3. | I am a U.S. citizen or other U.S. person (defined below); and |
4. | The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. |
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later.
Sign Here |
Signature of U.S. person u |
Date u |
General Instructions
Section references are to the Internal Revenue Code unless otherwise noted.
Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9.
Purpose of Form
An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following.
Form 1099-INT (interest earned or paid)
Form 1099-DIV (dividends, including those from stocks or mutual funds)
Form 1099-MISC (various types of income, prizes, awards, or gross proceeds)
Form 1099-B (stock or mutual fund sales and certain other transactions by brokers)
Form 1099-S (proceeds from real estate transactions)
Form 1099-K (merchant card and third party network transactions)
Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition)
Form 1099-C (canceled debt)
Form 1099-A (acquisition or abandonment of secured property)
Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN.
If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later.
Cat. No. 10231X | Form W-9 (Rev. 10-2018) |
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By signing the filled-out form, you:
1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners share of effectively connected income, and
4. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See What is FATCA reporting, later, for further information.
Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requesters form if it is substantially similar to this Form W-9.
Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are:
An individual who is a U.S. citizen or U.S. resident alien;
A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States;
An estate (other than a foreign estate); or
A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under section 1446 on any foreign partners share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 require a partnership to presume that a partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of partnership income.
In the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States.
In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the entity;
In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the trust; and
In the case of a U.S. trust (other than a grantor trust), the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust.
Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).
Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a saving clause. Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes.
If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items.
1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.
4. The type and amount of income that qualifies for the exemption from tax.
5. Sufficient facts to justify the exemption from tax under the terms of the treaty article.
Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption.
If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233.
Backup Withholding
What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called backup withholding. Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding.
You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return.
Payments you receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the instructions for Part II for details),
3. The IRS tells the requester that you furnished an incorrect TIN,
4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup withholding. See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information.
Also see Special rules for partnerships, earlier.
What is FATCA Reporting?
The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all United States account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information.
Updating Your Information
You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account; for example, if the grantor of a grantor trust dies.
Penalties
Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
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Form W-9 (Rev. 10-2018) |
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Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties.
Specific Instructions
Line 1
You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return.
If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9.
a. Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name.
Note: ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as the name you entered on the Form 1040/1040A/1040EZ you filed with your application.
b. Sole proprietor or single-member LLC. Enter your individual name as shown on your 1040/1040A/1040EZ on line 1. You may enter your business, trade, or doing business as (DBA) name on line 2.
c. Partnership, LLC that is not a single-member LLC, C corporation, or S corporation. Enter the entitys name as shown on the entitys tax return on line 1 and any business, trade, or DBA name on line 2.
d. Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on line 2.
e. Disregarded entity. For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a disregarded entity. See Regulations section 301.7701-2(c)(2)(iii). Enter the owners name on line 1. The name of the entity entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owners name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entitys name on line 2, Business name/disregarded entity name. If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN.
Line 2
If you have a business name, trade name, DBA name, or disregarded entity name, you may enter it on line 2.
Line 3
Check the appropriate box on line 3 for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3.
IF the entity/person on line 1 is a(n) . . . |
THEN check the box for . . . | |||
Corporation | Corporation | |||
Individual
Sole proprietorship, or
Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes. |
Individual/sole proprietor or single-member LLC | |||
LLC treated as a partnership for U.S. federal tax purposes,
LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or
LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes. |
Limited liability company and enter the appropriate tax classification. (P= Partnership; C= C corporation; or S= S corporation) | |||
Partnership | Partnership | |||
Trust/estate | Trust/estate |
Line 4, Exemptions
If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you.
Exempt payee code.
Generally, individuals (including sole proprietors) are not exempt from backup withholding.
Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends.
Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network transactions.
Corporations are not exempt from backup withholding with respect to attorneys fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC.
The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space in line 4.
1An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2)
2The United States or any of its agencies or instrumentalities
3A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
4A foreign government or any of its political subdivisions, agencies, or instrumentalities
5A corporation
6A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession
7A futures commission merchant registered with the Commodity Futures Trading Commission
8A real estate investment trust
9An entity registered at all times during the tax year under the Investment Company Act of 1940
10A common trust fund operated by a bank under section 584(a)
11A financial institution
12A middleman known in the investment community as a nominee or custodian
13A trust exempt from tax under section 664 or described in section 4947
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The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13.
IF the payment is for . . . | THEN the payment is exempt for . . . | |
Interest and dividend payments | All exempt payees except for 7 | |
Broker transactions | Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012. | |
Barter exchange transactions and patronage dividends | Exempt payees 1 through 4 | |
Payments over $600 required to be reported and direct sales over $5,0001 | Generally, exempt payees 1 through 52 | |
Payments made in settlement of payment card or third party network transactions | Exempt payees 1 through 4 |
1 | See Form 1099-MISC, Miscellaneous Income, and its instructions. |
2 | However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency. |
Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with Not Applicable (or any similar indication) written or printed on the line for a FATCA exemption code.
AAn organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37)
BThe United States or any of its agencies or instrumentalities
CA state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
DA corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i)
EA corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i)
FA dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state
GA real estate investment trust
HA regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940
IA common trust fund as defined in section 584(a)
JA bank as defined in section 581
KA broker
LA trust exempt from tax under section 664 or described in section 4947(a)(1)
MA tax exempt trust under a section 403(b) plan or section 457(g) plan
Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed.
Line 5
Enter your address (number, street, and apartment or suite number). This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, write NEW at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records.
Line 6
Enter your city, state, and ZIP code.
Part I. Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below.
If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN.
If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owners SSN (or EIN, if the owner has one). Do not enter the disregarded entitys EIN. If the LLC is classified as a corporation or partnership, enter the entitys EIN.
Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at www.SSA.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/Businesses and clicking on Employer Identification Number (EIN) under Starting a Business. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7 and/or SS-4 mailed to you within 10 business days.
If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write Applied For in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester.
Note: Entering Applied For means that you have already applied for a TIN or that you intend to apply for one soon.
Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8.
Part II. Certification
To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise.
For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier.
Signature requirements. Complete the certification as indicated in items 1 through 5 below.
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1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form.
3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification.
4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. Other payments include payments made in the course of the requesters trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third party network transactions, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).
5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), ABLE accounts (under section 529A), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification.
What Name and Number To Give the Requester
For this type of account: | Give name and SSN of: | |||||
1. | Individual | The individual | ||||
2. | Two or more individuals (joint account) other than an account maintained by an FFI | The actual owner of the account or, if combined funds, the first individual on the account1 | ||||
3. | Two or more U.S. persons (joint account maintained by an FFI) |
Each holder of the account | ||||
4. | Custodialaccount of a minor (Uniform Gift to Minors Act) | The minor2 | ||||
5. | a. The usual revocable savings trust (grantor is also trustee) | The grantor-trustee1 | ||||
b. So-called trust account that is not a legal or valid trust under state law | The actual owner1 | |||||
6. | Sole proprietorship or disregarded entity owned by an individual | The owner3 | ||||
7. | Grantortrust filing under Optional Form 1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i)(A)) | The grantor* | ||||
For this type of account: | Give name and EIN of: | |||||
8. | Disregarded entity not owned by an individual | The owner | ||||
9. | A valid trust, estate, or pension trust | Legal entity4 | ||||
10. | Corporation or LLC electing corporate status on Form 8832 or Form 2553 | The corporation | ||||
11. | Association, club, religious, charitable, educational, or other tax-exempt organization | The organization | ||||
12. | Partnership or multi-member LLC | The partnership | ||||
13. | A broker or registered nominee | The broker or nominee |
For this type of account: | Give name and EIN of: | |||||
14. | Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments | The public entity | ||||
15. | Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulations section 1.671-4(b)(2)(i)(B)) | The trust |
1 List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that persons number must be furnished.
2 Circle the minors name and furnish the minors SSN.
3 You must show your individual name and you may also enter your business or DBA name on the Business name/disregarded entity name line. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN.
4 List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see Special rules for partnerships, earlier.
*Note: The grantor also must provide a Form W-9 to trustee of trust.
Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.
Secure Your Tax Records From Identity Theft
Identity theft occurs when someone uses your personal information such as your name, SSN, or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund.
To reduce your risk:
Protect your SSN,
Ensure your employer is protecting your SSN, and
Be careful when choosing a tax preparer.
If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter.
If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039.
For more information, see Pub. 5027, Identity Theft Information for Taxpayers.
Victims of identity theft who are experiencing economic harm or a systemic problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059.
Protect yourself from suspicious emails or phishing schemes. Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.
16
Form W-9 (Rev. 10-2018) |
Page 6 |
The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts.
If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at spam@uce.gov or report them at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338). If you have been the victim of identity theft, see www.IdentityTheft.gov and Pub. 5027.
Visit www.irs.gov/IdentityTheft to learn more about identity theft and how to reduce your risk.
Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.
17
Exhibit 99.2
LETTER TO DTC PARTICIPANTS
CHENIERE CORPUS CHRISTI HOLDINGS, LLC
OFFER TO EXCHANGE UP TO
$750,000,000 OF 2.742% SENIOR SECURED NOTES DUE 2039
(CUSIP NO. 16412X AL9)
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR
$750,000,000 OF 2.742% SENIOR SECURED NOTES DUE 2039
(CUSIP NOS. 16412X AK1 AND U16327 AE5)
THAT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
To: Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Cheniere Corpus Christi Holdings, LLC, a Delaware limited liability company (the Company), is offering, subject to the terms and conditions set forth in its prospectus, dated , 2022 (the Prospectus), relating to the offer (the Exchange Offer) of the Company to exchange up to $750,000,000 of its 2.742% Senior Secured Notes due 2039 (CUSIP No. 16412X AL9) (the New Notes), that have been registered under the Securities Act of 1933, as amended (the Securities Act), for a like principal amount of its issued and outstanding 2.742% Senior Secured Notes due 2039 (CUSIP Nos. 16412X AK1 AND U16327 AE5) (the Old Notes), that have not been registered under the Securities Act. The Exchange Offer is being extended to all holders of the Old Notes in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement, dated as of August 24, 2021, by and between the Company and the Initial Purchasers party thereto. The New Notes are substantially identical to the Old Notes, except that the transfer restrictions, registration rights and provisions for additional interest applicable to the Old Notes do not apply to the New Notes.
Please contact your clients for whom you hold Old Notes regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Old Notes registered in your name or in the name of your nominee, or who hold Old Notes registered in their own names, we are enclosing the following documents:
1. | the Prospectus; |
2. | a Letter of Transmittal for your use and for the information of your clients; |
3. | a form of letter which may be sent to your clients for whose accounts you hold Old Notes registered in your name or in the name of your nominee, with space provided for obtaining such clients instructions with regard to the Exchange Offer; and |
4. | return envelopes addressed to the Exchange Agent. |
Your prompt action is requested. The Exchange Offer will expire at 5:00 p.m., New York City time, on , 2022, unless the Exchange Offer is extended (such time and date as it may be extended, the Expiration Date). Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time before 5:00 p.m., New York City time, on the Expiration Date.
Pursuant to the Letter of Transmittal, each holder of Old Notes will represent to the Company that:
| the New Notes acquired in exchange for Old Notes pursuant to the Exchange Offer are being acquired in the ordinary course of business of the person receiving such New Notes whether or not such person is the undersigned; |
| neither the holder of Old Notes nor any such other person has an arrangement or understanding with any person to participate in the distribution of New Notes within the meaning of the Securities Act; |
| neither the holder nor any such other person is an affiliate (as defined in Rule 405 under the Securities Act) of the Company or of any of the subsidiary guarantors named in the Prospectus or is a broker-dealer tendering Old Notes acquired directly from the Company for resale pursuant to Rule 144A or any other available exemption under the Securities Act; and |
| the holder is not engaged in, and does not intend to engage in, a distribution of the New Notes. |
If the holder is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, it acknowledges that it may be a statutory underwriter and it will deliver a prospectus in connection with any resale of such New Notes.
The enclosed Letter to Clients contains an authorization by the beneficial owners of the Old Notes for you to make the foregoing representations.
The holder must do one of the following on or prior to the Expiration Date to participate in the Exchange Offer:
| tender the Old Notes by sending the certificates for the Old Notes, in proper form for transfer, a properly completed and duly executed Letter of Transmittal, with any required signature guarantees, and all other documents required by the Letter of Transmittal, to the Exchange Agent at the address listed in the Prospectus under the caption The Exchange OfferExchange Agent; or |
| tender the Old Notes by using the book-entry procedures described in the Prospectus under the caption The Exchange OfferProcedures for Tendering through The Depository Trust Companys Automated Tender Offer Program. |
The Company will, upon request, reimburse brokers, dealers, commercial banks, trust companies and other nominees for reasonable and necessary costs and expenses incurred by them in forwarding the Prospectus and the related documents to the beneficial owners of Old Notes held by them as nominee or in a fiduciary capacity. The Company will pay or cause to be paid all stock transfer taxes applicable to the exchange of Old Notes in the Exchange Offer, except as set forth in Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer, or requests for additional copies of the enclosed materials, should be directed to the Exchange Agent at its address and telephone number set forth on the front of the Letter of Transmittal.
Very truly yours, |
Cheniere Corpus Christi Holdings, LLC |
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON BECOMING AN AGENT OF CHENIERE CORPUS CHRISTI HOLDINGS, LLC OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF EITHER OF THEM IN CONNECTION WITH THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
2
Exhibit 99.3
LETTER TO CLIENTS
CHENIERE CORPUS CHRISTI HOLDINGS, LLC
OFFER TO EXCHANGE UP TO
$750,000,000 OF 2.742% SENIOR SECURED NOTES DUE 2039
(CUSIP NO. 16412X AL9)
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR
$750,000,000 OF 2.742% SENIOR SECURED NOTES DUE 2039
(CUSIP NOS. 16412X AK1 AND U16327 AE5)
THAT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
To Our Clients:
Enclosed for your consideration is a prospectus, dated , 2022 (the Prospectus), and the related Letter of Transmittal (the Letter of Transmittal) relating to the offer (the Exchange Offer) of Cheniere Corpus Christi Holdings, LLC, a Delaware limited liability company (the Company), to exchange up to $750,000,000 of its 2.742% Senior Secured Notes due 2039 (CUSIP No. 16412X AL9) (the New Notes), that have been registered under the Securities Act of 1933, as amended (the Securities Act), for a like principal amount of its issued and outstanding 2.742% Senior Secured Notes due 2039 (CUSIP Nos. 16412X AK1 AND U16327 AE5) (the Old Notes), that have not been registered under the Securities Act. The Exchange Offer is being extended to all holders of the Old Notes in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement, dated as of August 24, 2021, by and between the Company and the Initial Purchasers party thereto. The New Notes are substantially identical to the Old Notes, except that the transfer restrictions, registration rights and provisions for additional interest applicable to the Old Notes do not apply to the New Notes.
These materials are being forwarded to you as the beneficial owner of the Old Notes held by us for your account but not registered in your name. A tender of such Old Notes may only be made by us as the holder of record and pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to tender on your behalf the Old Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal. We also request that you confirm that we may on your behalf make the representations and warranties contained in the Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Old Notes on your behalf in accordance with the provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 p.m., New York City time, on , 2022, unless it is extended. Any Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time before the expiration of the Exchange Offer.
Your attention is directed to the following:
1. | The Exchange Offer is for any and all Old Notes. |
2. | The Exchange Offer is subject to certain conditions set forth in the Prospectus under the caption The Exchange OfferConditions to the Exchange Offer. |
3. | Any transfer taxes incident to the transfer of Old Notes from you to the Company will be paid by the Company, except as otherwise provided in Instruction 6 of the Letter of Transmittal. |
4. | The Exchange Offer expires at 5:00 p.m., New York City time, on , 2022, unless it is extended. |
If you wish to have us tender your Old Notes, please so instruct us by completing, executing and returning to us the instruction form on the back of this letter. The Letter of Transmittal is furnished to you for information only and may not be used directly by you to tender Old Notes.
INSTRUCTIONS WITH RESPECT TO
THE EXCHANGE OFFER
The undersigned acknowledges receipt of your letter and the enclosed materials, referred to therein, relating to the Exchange Offer made by the Company with respect to its Old Notes.
This will instruct you as to the action to be taken by you relating to the Exchange Offer with respect to the Old Notes held by you for the account of the undersigned.
The aggregate face amount of the Old Notes held by you for the account of the undersigned is (fill in amount):
$ of the 2.742% Senior Secured Notes due 2039.
With respect to the Exchange Offer, the undersigned hereby instructs you (check appropriate box):
☐ To tender the following Old Notes held by you for the account of the undersigned, subject to the terms and conditions set forth in the Prospectus and the related Letter of Transmittal (insert principal amount of Old Notes to be tendered, if any):
$
☐ Not to tender any Old Notes held by you for the account of the undersigned.
If the undersigned instructs you to tender the Old Notes held by you for the account of the undersigned, it is understood that you are authorized to make, on behalf of the undersigned (and the undersigned by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner, including, but not limited, to the representations that:
| the New Notes acquired in exchange for Old Notes pursuant to the Exchange Offer are being acquired in the ordinary course of business of the person receiving such New Notes whether or not such person is the undersigned; |
| neither the holder of Old Notes nor any such other person has an arrangement or understanding with any person to participate in the distribution of New Notes within the meaning of the Securities Act; |
| neither the undersigned nor any such other person is an affiliate (within the meaning of Rule 405 under the Securities Act) of the Company or of any of the subsidiary guarantors named in the Prospectus or is a broker-dealer tendering Old Notes acquired directly from the Company for resale pursuant to Rule 144A or any other available exemption under the Securities Act; and |
| the undersigned is not engaged in, and does not intend to engage in, a distribution of the New Notes. |
If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, it acknowledges that it may be a statutory underwriter and it will deliver a prospectus in connection with any resale of such New Notes.
2
Dated: |
|
Signature(s): |
|
Print Name(s) here: |
|
Print Address(es): |
|
Area Code and Telephone Number(s): |
|
Tax Identification or Social Security Number(s): |
|
None of the Old Notes held by us for your account will be tendered unless we receive written instructions from you to do so. Unless a specific contrary instruction is given in the space provided, your signature(s) hereon shall constitute an instruction to us to tender all the Old Notes held by us for your account.
3
Exhibit 107
Calculation of Filing Fee Tables
S-4
(Form Type)
Cheniere Corpus Christi Holdings, LLC
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
Security Type |
Security Class Title |
Fee Calculation or Carry Forward Rule |
Amount Registered |
Proposed Maximum Offering Price Per Unit |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee |
Carry Forward Form Type |
Carry Forward File Number |
Carry Forward Initial effective date |
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward | |||||||||||||
Newly Registered Securities | ||||||||||||||||||||||||
Fees to Be Paid |
Debt | 2.742% Senior Secured Notes due 2039 | 457(f) | $750,000,000 | | $750,000,000(2) | 0.0000927 | $69,525(1) | | | | | ||||||||||||
Other | Guarantees of 2.742% Senior Secured Notes due 2039(2) | Other | | | | | (3) | | | | | |||||||||||||
Fees Previously Paid |
||||||||||||||||||||||||
Carry Forward Securities | ||||||||||||||||||||||||
Carry Forward Securities |
||||||||||||||||||||||||
Total Offering Amounts | $69,525 | |||||||||||||||||||||||
Total Fees Previously Paid | | |||||||||||||||||||||||
Total Fee Offsets | | |||||||||||||||||||||||
Net Fee Due | $69,525 |
(1) | For purposes of this calculation, the offering price per note was assumed to be the stated principal amount of each original note that may be received by the registrant in the exchange transaction in which the notes will be offered. |
(2) | No separate consideration will be received for the guarantees. Each subsidiary of Cheniere Corpus Christi Holdings, LLC that is listed below in the Table of Additional Registrant Guarantors will guarantee the notes being registered. |
(3) | Pursuant to Rule 457(n) of the Securities Act, no registration fee is required for the guarantees. |
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