TO DESIGNATE A SCHEDULING
REPRESENTATIVE UNDER SECTION 17.2(D)(II) ABOVE.
17.3
ASSIGNMENT AS NOVATION
(A)
EXCEPT AS PROVIDED IN SECTION 17.2(B), AN
ASSIGNMENT UNDER THIS ARTICLE 17 OF ALL, BUT NOT LESS THAN ALL, OF CUSTOMER'S OR
SABINE'S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT FOR THE REMAINING TERM OF
THE AGREEMENT SHALL NOT SERVE AS A NOVATION OF THIS AGREEMENT UNLESS AND UNTIL,
BUT SHALL SERVE AS A NOVATION IF:
(I)
THE ASSIGNEE DELIVERS TO THE
NON-ASSIGNING PARTY ITS WRITTEN UNDERTAKING TO BE BOUND BY AND PERFORM ALL
OBLIGATIONS OF THE ASSIGNOR (INCLUDING THE ASSUMPTION OF ALL LIABILITIES OF THE
ASSIGNOR FROM THE EFFECTIVE DATE THROUGH THE DATE OF SUCH ASSIGNMENT) UNDER THIS
AGREEMENT, AS IF IT WERE THE ASSIGNOR; AND
(II)
IN THE CASE OF CUSTOMER, ASSIGNEE HAVING
DEMONSTRATED TO SABINE THAT ITS CREDITWORTHINESS (INCLUDING CREDIT SUPPORT FROM
AN IRREVOCABLE LETTER OF CREDIT, A PARENT GUARANTEE OR OTHER SECURITY) AT THE
TIME OF THE ASSIGNMENT IS THE SAME OR BETTER THAN THE CREDITWORTHINESS OF
GUARANTOR OR SUCH CREDITWORTHINESS AND/OR ASSIGNEE ARE OTHERWISE REASONABLY
ACCEPTABLE TO
49
SABINE.
FOR THE PURPOSES OF THE PRECEDING SENTENCE, THE CREDITWORTHINESS AT THE
TIME OF THE ASSIGNMENT OF THE PROPOSED ASSIGNEE SHALL BE DEEMED ACCEPTABLE TO
SABINE IF: (I) THE CREDIT RATING OF SUCH ASSIGNEE IS AT SUCH TIME EQUIVALENT TO
OR BETTER THAN NO LESS THAN TWO OF THE FOLLOWING THREE RATINGS:
"A3" BY MOODY'S
INVESTOR SERVICE, "A-" BY STANDARD AND POOR'S AND "A-" BY FITCH RATINGS; AND
(II) THE MINIMUM MARKET CAPITALIZATION OF SUCH ASSIGNEE IS THREE BILLION FIVE
HUNDRED MILLION U.S. DOLLARS ($3,500,000,000); OR
(III)
IN THE CASE OF SABINE, ASSIGNEE HAVING
DEMONSTRATED TO CUSTOMER THAT:
A.
ITS CREDITWORTHINESS AT THE TIME OF THE
ASSIGNMENT IS THE SAME OR BETTER THAN THE CREDITWORTHINESS OF SABINE; AND
B.
IT HAS SUCCEEDED TO SUBSTANTIALLY ALL OF
THE ASSETS COMPRISING THE SABINE PASS FACILITY AND IS WILLING AND ABLE TO MAKE
AVAILABLE THE SERVICES TO CUSTOMER.
(B)
IN THE EVENT OF A NOVATION, THE ASSIGNEE
SHALL BE DEEMED TO BE A PARTY TO THIS AGREEMENT FOR ALL PURPOSES WITH RESPECT TO
RIGHTS AND OBLIGATIONS PERTAINING TO OPERATIONS HEREUNDER FROM AND AFTER THE
EFFECTIVE DATE OF THE ASSIGNMENT AND THE ASSIGNOR SHALL BE RELIEVED OF ALL
RIGHTS AND OBLIGATIONS HEREUNDER FROM AND AFTER THE EFFECTIVE DATE OF THE
ASSIGNMENT.
ARTICLE 18
TERMINATION
18.1
EARLY TERMINATION EVENTS
(A)
TERMINATION BY CUSTOMER.
CUSTOMER MAY
TERMINATE THIS AGREEMENT PURSUANT TO THE OTHER PROVISIONS OF THIS ARTICLE 18,
IF:
(I)
SABINE HAS DECLARED FORCE MAJEURE WITH
RESPECT TO A PERIOD THAT IS EITHER PROJECTED BY SABINE TO EXTEND FOR EIGHTEEN
(18) MONTHS OR HAS IN FACT EXTENDED EIGHTEEN (18) MONTHS;
(II)
FROM AND AFTER THE COMMERCIAL START DATE,
FOR REASONS NOT EXCUSED BY FORCE MAJEURE OR CUSTOMER'S ACTIONS:
A.
SABINE FAILED TO DELIVER TO THE
DELIVERY POINT AN AMOUNT AGGREGATING TO 141,380,925 MMBTUS OR MORE OF CUSTOMER'S
TOTAL GAS NOMINATIONS IN A TWELVE (12) MONTH PERIOD;
B.
SABINE HAS FAILED ENTIRELY TO RECEIVE
FOR CUSTOMER'S ACCOUNT AT LEAST TWELVE