EXHIBIT 10.26
CHENIERE ENERGY, INC.
TWO XXXXX CENTER
0000 XXXXX XXXXXX, XXXXX 0000
XXXXXXX, XXXXX 00000-0000
March 15, 1999
via facsimile
Lender Name
Address
Re: (Form of) Fifth Amendment to Securities Purchase Agreement ("Fifth
Amendment")
Dear Lender:
Reference is made to the Securities Purchase Agreement dated as of December
15, 1997 as amended by the Third Amendment dated on or about September 13, 1998
and the Fourth Amendment dated January 12, 1999 (as amended, the "Agreement"),
between Cheniere Energy, Inc., a Delaware corporation ("Borrower"), and Lender.
Unless otherwise indicated, all capitalized terms herein are used as defined in
the Agreement.
The purpose of this amendment to the Agreement is to extend the maturity
date from March 15, 1999 to April 15, 1999. In consideration therefor, the
exercise price per share of the Warrants previously issued to Lender shall be
reduced as described below.
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Borrower and Lender agree as follows:
1. Amendment of Maturity Date. The definition of Maturity Date in Section
12 shall be hereby amended by replacing the paragraph captioned MATURITY
DATE in its entirety with the following paragraph:
"MATURITY DATE means the earlier of (a) April 15, 1999 and (b)
the date that the Senior Notes are declared immediately due and
payable pursuant to SECTION 11 in the event of a Default; provided
that Lender's rights continue until the Obligation has been paid and
performed in full. If no Default or Potential Default exists."
2. Reduction of Exercise Price on Existing Warrants. As of the date hereof,
the exercise price per share of the Warrants previously issued to Lender shall
be reduced from $1.50 to $1.25, and the "Exercise Price" of such warrants is
hereby agreed to be amended to reflect such reduction.
3. Amendment to Call of Warrants. As of the date hereof, each of the
agreements evidencing Warrants held by Lender shall be amended so that the first
sentence of Section 7 shall read:
"This warrant may be called and canceled by the Company at its
election at any time following the date upon which the closing price
of the Common Stock on its principal trading market has been $3.00 for
a period of 20 consecutive trading days (all as determined in good
faith by the Company's Board of Directors) at the price equal to $.01
per share of Common Stock for which this Warrant shall be exercisable
on the call Date (as defined below)."
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4. Representations and Warranties. Borrower represents and warrants that it
possesses all requisite power and authority to execute, deliver and comply with
the terms of this instrument, which has been duly authorized and approved by all
necessary corporate action and for which no consent of any person is required.
5. Fees and Expenses. Borrower agrees to pay the reasonable fees and expenses
of counsel to Lender for services rendered in connection with the negotiation
and execution of this instrument.
6. Loan Paper; Effect. This instrument is a Loan Paper and, therefore, is
subject to the applicable provisions of Section 13 of the Agreement, all of
which are incorporated herein by reference the same as if set forth herein
verbatim. Except as amended in this instrument, the Loan Papers are and shall
be unchanged and shall remain in full force and effect. In the event of any
inconsistency between the terms of the Agreement as hereby modified (the
"Amended Agreement") and any other Loan Papers, the terms of the Amended
Agreement shall control and such other document shall be deemed to be amended
hereby to conform to the terms of the Amended Agreement.
7. No Waiver of Defaults. This instrument does not constitute a waiver of, or
a consent to any present or future violation of or default under, any provision
of the Loan Papers, or a waiver of Lender's right to insist upon future
compliance with each term, covenant, condition and provision of the Loan Papers,
and the Loan Papers shall continue to be binding upon, and inure to the benefit
of, Borrower, Lender and their respective successors and assigns.
8. Final Agreement. THE LOAN PAPERS, AS AMENDED HEREBY, REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL
AGREEMENTS BETWEEN THE PARTIES.
If the foregoing terms and conditions are acceptable to Lender, Lender
should indicate its acceptance by signing in the space provided below and
returning an executed copy hereof to Borrower, whereupon this letter shall
become an agreement binding upon and inuring to the benefit of Borrower and
Lender and their respective successors and assigns.
Sincerely,
CHENIERE ENERGY, INC.
By:
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Xxx X. Xxxxxxxxx
Chief Financial Officer
Accepted and agreed to as of the day
and year first set forth in this Fifth
Amendment.
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Lender
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