Exhibit 10.37
CHENIERE ENERGY, INC.
TWO XXXXX CENTER
0000 XXXXX XXXXXX, XXXXX 0000
XXXXXXX, XXXXX 00000-0000
(000) 000-0000
FAX: (000) 000-0000
October 13, 1999
Lender
Form of Ninth Amendment to Securities Purchase Agreement ("Ninth
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, by the Fourth Amendment dated January 12, 1999 and by the
Fifth Amendment dated March 15, 1999, by the Sixth Amendment dated April 14,
1999, by the Seventh Amendment dated May 19, 1999 and by the Eighth Amendment
dated July 13, 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.
Cheniere is presently undertaking to raise $12,000,000 through a private
placement of convertible preferred stock in which San Jacinto Securities is
acting as the financial advisor. It is expected that this preferred stock
offering will close by the end of October. In addition, we have engaged RP&C
International to assist in a European private placement of $20,000,000 in
convertible notes payable, which private placement will be initiated later this
month and is expected to close in November. Repayment of the amounts due to
Lender will be made from the proceeds of these offerings, and will be occur as
soon as practicable after the closing of the first offering.
The purpose of this amendment to the Agreement is to extend the maturity
date from October 15, 1999 to December 15, 1999 as described below.
For good and valuable consideration, consisting of 10 percent of the
outstanding balance of your note, payable in Cheniere common stock valued at
$1.20 per share, 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) December 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."
2. 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.
3. 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.
4. 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. 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.
5. 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 Ninth
Amendment.
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Lender
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