Exhibit 10.27
CHENIERE ENERGY, INC.
Two Xxxxx Center
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
December 15, 1997
Address~
Address1~
Address2~
Address3~
Re: FORM OF SECURITIES PURCHASE AGREEMENT
Cheniere Energy, Inc., a Delaware corporation ("BORROWER"), and the
undersigned, a Lender ("LENDER"), in consideration of the mutual covenants
contained herein, agree as follows:
1. COMMITMENT. In accordance with the terms and conditions set forth herein and
upon receipt by Lender of the items listed on Schedule 1, Lender agrees to
make a term loan hereunder to Borrower in the amount of $Term Loan Amount~
(the "TERM LOAN"). As additional consideration for the Term Loan, Borrower
will issue to Lender (i) Lender Stock~ shares (the "LENDER STOCK") of
Borrower's common stock, par value $.003 per share (the "COMMON STOCK") and
(ii) warrants in the form of EXHIBIT A (the "LENDER WARRANTS") to purchase
Lender Warrants~ shares of Common Stock at an exercise price of Exercise
Price~ per share (the "EXERCISE PRICE") which expire on December 31, 2001
(the "EXPIRATION DATE").
2. TERMS OF PAYMENT.
a) The Term Loan shall be evidenced by, and payable in accordance with the terms
of, a promissory note (the "NOTE") executed by Borrower, payable to the order
of Lender, in substantially the form of EXHIBIT B.
b) Borrower may prepay the Note, in whole or in part, without premium or
penalty, at any time.
c) In addition to prepayments under clause (b) above, Borrower shall make
prepayments of principal of the Term Loan equal to the net cash proceeds
received by Borrower from any private placement of Borrower's equity
securities or from any sale by Borrower of seismic data, less up to
$1,000,000 which may be retained by Borrower.
3. EXTENSION OF MATURITY DATE. If no Default or Potential Default exists,
Borrower may extend the Maturity Date for a period of up to 180 days by
notifying Lender of such extension prior to the original Maturity Date. If
Borrower extends the Maturity Date hereunder, Borrower shall issue to Lender
additional warrants (the "ADDITIONAL LENDER
WARRANTS") with an exercise price equal to the Exercise Price which expire on
the Expiration Date in the form of EXHIBIT A to purchase Additional Lender
Warrants~ shares of Common Stock for each 30 day period after the original
Maturity Date during which any amount of the Term Loan is outstanding and
unpaid until the date (the "FINAL REPAYMENT DATE") that is the earlier of (x)
the date of repayment of the Term Loan in full and (y) 180 days after the
original Maturity Date. The Additional Lender Warrants shall be issued within
10 days after the Final Repayment Date.
4. CERTAIN REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Lender that:
a) Borrower is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, is duly qualified to transact business
as a foreign corporation in each jurisdiction where the nature and extent of
its business require the same (except where the failure to do so would not
constitute a Material Adverse Event), and possesses all requisite authority,
powers, licenses, permits and franchises to conduct its business and execute,
deliver and comply with the terms of the Loan Papers executed or to be
executed by it, all of which have been duly authorized and approved by all
requisite corporate action and for which no approval or consent of any
person, entity or governmental authority is required that has not been
obtained;
b) Borrower is not, and the execution, delivery and performance of the Loan
Papers will not cause it to be, in violation of any law, regulation or
agreement (to the extent such violation is a Material Adverse Event) or its
corporate charter or bylaws;
c) upon execution and delivery by all parties thereto, each Loan Paper will
constitute a legal and binding obligation of Borrower, enforceable against it
in accordance with its terms, except as enforceability may be limited by
applicable Debtor Relief Laws and general principles of equity;
d) Borrower is not involved in or aware of the threat of any litigation which,
if determined adversely to it, would be a Material Adverse Event, and there
are no outstanding or unpaid judgments against Borrower;
e) all financial statements (or any replacements thereto) of Borrower and
related information concerning Borrower delivered to Lender by Borrower were
true and correct in all material respects as of the date thereof, were (in
the case of financial statements) prepared in accordance with generally
accepted accounting principles in the United States ("GAAP") and fairly
present the financial condition, results of operations and all material
liabilities of Borrower, and, except as previously disclosed to Lender, there
have been no material adverse changes in the financial condition of Borrower
since the date of such financial statements;
f) the Lender Warrants and Additional Lender Warrants (collectively, the
"WARRANTS") when issued, will be binding obligations of Borrower, enforceable
against it in accordance with the terms of the Warrants, except as
enforceability may be limited by applicable Debtor Relief Laws and general
principles of equity; the Common Stock issuable upon exercise of each Warrant
will, when issued and paid for in accordance with such Warrant, be duly and
validly authorized and issued, fully paid and nonassessable; and
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g) the Note and the Warrants are not being offered or sold by any form of
general solicitation or general advertising.
5. CERTAIN AFFIRMATIVE COVENANTS. Borrower shall:
a) use the proceeds of the Term Loan only for working capital and general
corporate purposes (including, without limitation, payments to Zydeco
Exploration, Inc., a subsidiary of Zydeco Energy, Inc., under Borrower's
Exploration Agreement with them);
b) deliver to Lender each filing made by Borrower during the term of the Term
Loan pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT");
c) promptly pay when due all taxes due by Borrower, except taxes being contested
in good faith by appropriate legal proceedings, for which adequate reserves
in accordance with GAAP have been established.
6. CERTAIN NEGATIVE COVENANTS. Borrower will not, directly or indirectly:
a) use the proceeds of any advance hereunder (i) to acquire any other entity,
(ii) to purchase or carry (or to extend credit to another for the purpose of
purchasing or carrying) "margin stock" (as defined in Regulation U of the
Federal Reserve System), (iii) to pay any wages (unless a payment to or
deposit with the United States of all amounts of tax required to be deducted
and withheld with respect thereto has been made), or (iv) for any unlawful
purpose;
b) merge or consolidate with any entity, or dissolve;
c) declare, make or pay any distribution or dividend to its owners;
d) sell, lease or otherwise dispose of all or any substantial portion of its
assets;
e) engage in any business other than that in which it is presently engaged; or
f) pledge any of its assets, including its interest in seismic data.
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7. LENDER ACKNOWLEDGMENTS.
A) TRANSFER RESTRICTIONS. Lender acknowledges that (i) the Term Note, Lender
Stock, Warrants and the Common Stock underlying the Warrants (collectively,
the "RESTRICTED SECURITIES") to be issued to it hereunder have not been and
are not being registered under the provisions of the Securities Act of 1933,
as amended (the "SECURITIES ACT"), or any applicable state securities laws
(except as provided in SECTION 9), and may not be offered, sold, pledged or
otherwise transferred unless (A) the Restricted Securities are subsequently
registered under the Securities Act and all applicable state securities laws
or (B) the holder of the Restricted Securities shall have delivered to
Borrower an opinion of counsel, reasonably satisfactory in form, scope and
substance to Borrower, to the effect that the Restricted Securities may be
sold or transferred pursuant to a valid exemption from such registration
requirements; (ii) the Restricted Securities are and will be "restricted
securities" (as defined in Rule 144 promulgated under the Securities Act);
(iii) any sale of the Restricted Securities, as the case may be, made in
reliance on Rule 144 promulgated under the Securities Act may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of the Restricted Securities, as the case may be,
under circumstances in which the seller, or the person through whom the sale
is made, may be deemed to be an underwriter, as that term is used in the
Securities Act, may require compliance with some other exemption under the
Securities Act or the rules and regulations of the Securities and Exchange
Commission (the "SEC") thereunder; and (iv) neither Borrower nor any other
person is under any obligation to register the Restricted Securities (other
than as set forth in SECTION 9) under the Securities Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder.
b) RESTRICTIVE LEGEND. Lender acknowledges and agrees that "stop transfer"
instructions shall be given regarding the Restricted Securities on the
transfer books of Borrower, and that the certificate(s) evidencing the
Restricted Securities shall bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE SECURITIES ACT"), OR ANY
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE DISPOSED OF FOR VALUE UNLESS A REGISTRATION STATEMENT HAS BECOME
EFFECTIVE WITH RESPECT TO SUCH SECURITIES UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE CORPORATION THAT THERE IS AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS."
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8. LENDER REPRESENTATIONS, WARRANTIES AND COVENANTS.
Lender represents and warrants to, and covenants and agrees with, Borrower as
follows:
a) Lender is purchasing the Restricted Securities for its own account, for
investment only and not with a view towards the public sale or distribution
thereof in violation of the Securities Act, and with no present intention of
dividing or allowing others to participate in this investment.
b) If Lender is an individual, Lender is an "accredited investor" as that term
is defined in Rule 501(a)(5) or (6) of Regulation D promulgated under the
Securities Act by reason that Lender is an individual (i) having an
individual net worth, or a joint net worth with Lender's spouse, at the time
of the purchase that exceeds $1,000,000, or (ii) who had an individual income
in excess of $200,000 in each of the two most recent years or joint income
with Lender's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current year;
or if Lender is a corporation or other business entity, the Lender is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3),
(7) or (8) of Regulation D promulgated under the Securities Act and Lender
was not organized for the specific purpose of acquiring the Restricted
Securities.
c) Lender has such knowledge, sophistication and experience in business, tax and
financial matters that Lender is capable of evaluating, and is familiar with,
the merits and risks of an investment in the Restricted Securities, can bear
the substantial economic risk of an investment in the Restricted Securities
for an indefinite period of time and can afford a complete loss of such
investment.
d) Lender represents that its overall commitment to investments which are not
readily marketable is not disproportionate to Lender's net worth, and
Lender's investment in the Restricted Securities will not cause such overall
commitment to become excessive.
e) All subsequent offers and sales of the Restricted Securities by Lender shall
be made pursuant to registration of such securities under the Securities Act
and applicable state securities laws or pursuant to a valid exemption from
such registration requirements.
f) Lender understands that the Restricted Securities are being offered and sold
to it in reliance on specific exemptions from the registration requirements
of United States federal and state securities laws and that Borrower is
relying upon the truth and accuracy of, and Lender's compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of Lender set forth herein in order to determine the availability of such
exemptions and the eligibility of Lender to acquire the Restricted
Securities. Lender agrees that, if any of the representations, warranties,
agreements, acknowledgments or understandings deemed to have been made by it
in connection with its investment in the Restricted Securities is no longer
accurate, it shall promptly notify Borrower and consult with Borrower in
order to determine an appropriate course of action.
g) Lender has carefully read the terms and provisions hereof and, to the extent
that Lender believed necessary, has discussed the representations, warranties
and agreements which
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Lender makes herein and the applicable limitations upon
Lender's resale of the Restricted Securities with Lender's counsel.
h) Lender and its advisors have been afforded the opportunity to ask questions
of Borrower, and have received complete and satisfactory answers to any and
all such inquiries and has had access to such financial and other information
concerning Borrower and the Restricted Securities as it has deemed necessary
in connection with its decision as to whether to make its investment.
i) Lender understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or
endorsement of the Restricted Securities.
9. REGISTRATION PROCEDURES.
a) Within 120 days after the issuance of the Note, Borrower shall prepare and
file or cause to be filed with the SEC a registration statement (the
"REGISTRATION STATEMENT") with respect to the Lender Stock and the shares of
Common Stock underlying the Warrants (collectively, the "REGISTRABLE
SHARES"). Borrower shall thereafter use diligence in attempting to cause the
Registration Statement to be declared effective by the SEC and shall
thereafter use reasonable efforts to maintain the effectiveness of the
Registration Statement until the earlier to occur of (i) the date which is
one year from the effective date of the Registration Statement, (ii) the date
on which all of the Warrants and Registrable Shares are no longer held by
Lender or (iii) the date on which no warrants are held by Lender and the
Registrable Shares held by Lender can be resold pursuant to Rule 144.
b) Following effectiveness of the Registration Statement, Borrower shall
furnish to Lender a prospectus as well as such other documents as Lender may
reasonably request.
c) Borrower shall use reasonable efforts to (i) register or otherwise
qualify the Registrable Shares for sale under the securities laws of such
jurisdictions as Lender may reasonably request, (ii) prepare and file in
those jurisdictions such amendments (including post-effective amendments) and
supplements as may be required, (iii) take such other actions as may be
necessary to maintain such registrations and/or qualifications in effect at
all times while the Registration Statement is likewise maintained effective
and (iv) take all other actions reasonably necessary or advisable to qualify
the Registrable Shares for sale in such jurisdictions; provided, however,
that Borrower shall not be required in connection therewith or as a condition
thereto to (I) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this SECTION 9(C), (II) subject
itself to general taxation in any such jurisdiction, (III) file a general
consent to service of process in any such jurisdiction, (IV) provide any
undertakings that cause more than nominal expense or burden to Borrower or
(V) make any change in its certificate of incorporation or bylaws, which in
each case the Board of Directors of Borrower determines to be contrary to the
best interests of Borrower and its stockholders.
d) Borrower shall, following effectiveness of the Registration Statement,
as promptly as practicable after becoming aware of any such event, notify
Lender of the happening of any event of which Borrower has knowledge, as a
result of which the
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prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and use reasonable efforts promptly to prepare a supplement or
amendment to the Registration Statement to correct such untrue statement or
omission, and deliver a number of copies of such supplement or amendment to
Lender or as Lender may reasonably request. Borrower may voluntarily suspend
the effectiveness of such Registration Statement for a limited time, which in
no event shall be longer than 90 days, if Borrower has been advised by legal
counsel that the offering of Common Stock pursuant to the Registration
Statement would adversely affect, or would be improper in view of (or
improper without disclosure in a prospectus), a proposed financing, a
reorganization, recapitalization, merger, consolidation, or similar
transaction involving Borrower or its subsidiaries, and, during such
suspension, Lender and its affiliates shall not sell or otherwise dispose for
value any Registered Shares, in which event the one year period referred to
in clause (i) of SECTION 9(A) shall be extended for an additional period of
time beyond such one year period for an additional period of time equal to
the number of days the effectiveness thereof has been suspended pursuant to
this sentence.
e) Following effectiveness of the Registration Statement, Borrower, as
promptly as practicable after becoming aware of any such event, will notify
Lender of the issuance by the SEC of any stop order or other suspension of
effectiveness of the Registration Statement at the earliest possible time.
f) Following effectiveness of the Registration Statement, Borrower will
use reasonable efforts either to (i) cause all the Registrable Shares to be
listed on each national securities exchange on which similar securities
issued by Borrower are then listed, if any, if the listing of the Registrable
Shares is then permitted under the rules of such exchange, or (ii) secure the
quotation of the Registrable Shares on the Nasdaq Stock Market, Inc.
("NASDAQ"), if the listing of the Registrable Shares is then permitted under
the rules of Nasdaq, or (iii) if, despite Borrower's reasonable efforts to
satisfy the preceding clause (i) or (ii), Borrower is unsuccessful in
satisfying the preceding clause (i) or (ii) and without limiting the
generality of the foregoing, to use reasonable efforts to arrange for at
least two market makers to register with the National Association of
Securities Dealers, Inc. as such with respect to such Common Stock.
g) Provide a transfer agent and registrar, which may be a single entity,
for the Registrable Shares not later than the effective date of the
Registration Statement.
h) It shall be a condition precedent to the obligations of Borrower to
take any action pursuant to this SECTION 9 that Lender shall furnish to
Borrower such information regarding itself as Borrower may reasonably request
to effect the registration of the Registrable Shares and shall execute such
documents in connection with such registration as Borrower may reasonably
request.
i) Lender agrees to cooperate with Borrower in any manner reasonably
requested by Borrower in connection with the preparation and filing of the
Registration Statement hereunder.
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j) Lender agrees that, upon receipt of any notice from Borrower of the
happening of any event of the kind described in SECTION 9(D) or 9(E), Lender
will immediately discontinue disposition of Registrable Shares pursuant to
the Registration Statement until Lender receives notice from Borrower that
sales may resume and copies of the supplemented or amended prospectus and, if
so directed by Borrower, shall deliver to Borrower (at the expense of
Borrower) or destroy (and deliver to Borrower a certificate of destruction)
all copies in Lender's possession of the prospectus covering the Registrable
Shares current at the time of receipt of such notice.
k) All expenses, other than (i) underwriting discounts and commissions,
(ii) other fees and expenses of investment bankers and (iii) brokerage
commissions, incurred in connection with registrations, filings or
qualifications pursuant to this SECTION 9, including, without limitation, all
registration, listing and qualification fees, printers and accounting fees
and the fees and disbursements of counsel to Borrower, shall be borne by
Borrower.
l) To the extent permitted by law, Borrower will indemnify and hold
harmless Lender, the directors, if any, of Lender, the officers, if any, of
Lender, each person, if any, who controls Lender within the meaning of the
Securities Act or the Exchange Act, any underwriter (as defined in the
Securities Act) for Lender, the directors, if any, of such underwriter and
the officers, if any, of such underwriter, and each person, if any, who
controls any such underwriter within the meaning of the Securities Act or the
Exchange Act (each, an "INDEMNIFIED PERSON"), against any losses, claims,
damages, expenses or liabilities (joint or several) (collectively, "CLAIMS")
to which any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such Claims (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations in the
Registration Statement, or any post effective amendment thereof, or any
prospectus included therein: (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
post effective amendment thereof or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus
if used prior to the effective date of such Registration Statement, or
contained in the final prospectus (as amended or supplemented, if Borrower
files any amendment thereof or supplement thereto with the SEC) or the
omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which
the statements therein were made, not misleading or (iii) any violation or
alleged violation by Borrower of the Securities Act, any state securities law
or any rule or regulation under the Securities Act, the Exchange Act or any
state securities law (the matters in the foregoing clauses (i) through (iii)
are hereinafter collectively referred to as the "VIOLATIONS"). Subject to
the restrictions set forth in SECTION 9(N) with respect to the number of
legal counsel, Borrower shall reimburse Lender and each such underwriter or
controlling person, promptly as such expenses are incurred and are due and
payable, for any reasonable legal fees or other reasonable expenses incurred
by them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnity
contained in this SECTION 9(L) (I) shall not apply to a Claim arising out of
or based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to Borrower by any Indemnified Person
or underwriter for such Indemnified Person
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expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto; (II) with
respect to any preliminary prospectus shall not inure to the benefit of any
person from whom the person asserting any Claim purchased the Restricted
Securities that are the subject thereof (or to the benefit of any person
controlling such person) if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected in the prospectus, as
then amended or supplemented, if such final prospectus was timely made
available by Borrower; (III) shall not apply to amounts paid in settlement of
any Claim if such settlement is effected without the prior written consent of
Borrower, which consent shall not be unreasonably withheld. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Indemnified Person and shall survive the transfer of the
Restricted Securities by Lender; and (IV) shall not apply to a Claim arising
out of or based upon the failure of an Indemnified Person to deliver a final
prospectus to purchasers of Registrable Securities if Borrower provided such
final prospectus to the Indemnified Person.
m) Lender agrees to indemnify and hold harmless, to the same extent and
in the same manner set forth in SECTION 9(L), Borrower, each of its
directors, each of its officers who signs the Registration Statement, each
person, if any, who controls Borrower within the meaning of the Securities
Act or the Exchange Act, any underwriter and any other stockholder selling
securities pursuant to the Registration Statement or any of its directors or
officers or any person who controls such stockholder or underwriter within
the meaning of the Securities Act or the Exchange Act (each such person and
each Indemnified Person, an "INDEMNIFIED PARTY"), against any Claim to which
any of them may become subject, under the Securities Act, the Exchange Act or
otherwise, insofar as such Claim arises out of or is based upon any Violation
by Lender, in each case to the extent (and only to the extent) that (I) such
Violation occurs in reliance upon and in conformity with written information
furnished to Borrower by Lender expressly for use in connection with such
Registration Statement or such prospectus or (II) is a result of the breach
of federal or state securities laws pertaining to the transfer by Lender of
the Restricted Securities or the securities underlying the Restricted
Securities; and Lender will reimburse any reasonable legal or other expenses
reasonably incurred by any Indemnified Party in connection with investigating
or defending any such Claim; provided, however, that the indemnity contained
in this SECTION 9(M) shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of
Lender, which consent shall not be unreasonably withheld; provided, further,
that Lender shall be liable under this SECTION 9(M) for only that amount of a
Claim as does not exceed the net proceeds to Lender as a result of the sale
of Shares pursuant to such Registration Statement or such prospectus. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Restricted Securities (or underlying securities)
by Lender. Notwithstanding anything to the contrary contained herein the
indemnity contained in this SECTION 9(M) with respect to any preliminary
prospectus shall not inure to the benefit of any Indemnified Party if the
untrue statement or omission of material fact contained in the preliminary
prospectus was corrected on a timely basis in the prospectus, as then amended
or supplemented.
n) Promptly after receipt by an Indemnified Person or Indemnified Party
under SECTION 9(L) or 9(M) of notice of the commencement of any action
(including any governmental action), such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is made against any indemnifying
party under this SECTION 9, deliver to the
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indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying parties; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying party,
if, in the reasonable opinion of counsel retained by the indemnifying party,
the representation by such counsel of the Indemnified Person or Indemnified
Party and the indemnifying party would be inappropriate due to actual or
potential conflicts of interest between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such
proceeding. Except as provided in the preceding sentence, Borrower shall pay
for only one separate legal counsel for the Indemnified Persons. The failure
to deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party under
this SECTION 9, except to the extent that the indemnifying party is
prejudiced in its ability to defend such action. The indemnity required by
this SECTION 9 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss,
damage or liability is incurred and is due and payable.
10. DEFAULT. "DEFAULT" means the occurrence of any one or more of the following
(and "POTENTIAL DEFAULT" means the occurrence of any event which, with
notice or lapse of time or both, would become a Default):
a) the failure or refusal of Borrower (i) to pay any principal, interest or
other part of the Obligation when due, (ii) to punctually and properly comply
with any covenant in SECTION 6, or (iii) to punctually and properly comply
with any other covenant in any Loan Paper and such failure continues for a
period of 10 days after Borrower has notice thereof;
b) Borrower becomes a party to (other than as a claimant or creditor) or is made
the subject of any proceeding provided by any Debtor Relief Law which is not
stayed or dismissed within 60 days;
c) Borrower fails to have discharged, within a period of 60 days after
commencement, any judgment, warrant of attachment, sequestration or similar
proceeding against its assets with a value in excess of $400,000; and
d) a default exists in respect of any other Senior Note.
11. REMEDIES AND RIGHTS. If a Default exists, then the holders of Senior Notes
evidencing at least two-thirds of the aggregate principal amount then
outstanding under the Senior Notes may exercise any and all legal and
equitable rights and remedies afforded by the Loan Papers, applicable laws,
or otherwise, including, without limitation, declaring the Senior Notes
immediately due and payable. All rights available to the holders of the
Senior Notes under the Loan Papers are cumulative of and in addition to all
other rights at law or in equity. Any sums spent by Lender to exercise any
right provided herein become part of the Obligation and bear interest from
the date spent until the date repaid by Borrower at LIBOR plus 4% per annum.
The obligations of Borrower and the rights of Lender under the Loan Papers
continue in full force and effect until the Obligation is paid and performed
in full.
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12. DEFINITIONS.
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, suspension
of payments or similar laws affecting creditors' rights.
LIBOR means, initially, the three-month London InterBank Offered Rate, as
published in the "Money Rates" column of The Wall Street Journal on the date of
this agreement. With respect to any extension period under SECTION , "LIBOR"
means the London InterBank Offered Rate, as published in such column on the
original Maturity Date, for the period closest in length to such extension
period.
LOAN PAPERS means this agreement, the Note, any and all other agreements,
instruments and documents ever delivered pursuant hereto, and all renewals,
extensions or restatements of, or amendments or supplements to, all or any part
of the foregoing.
MATERIAL ADVERSE EVENT means any set of one or more circumstances or events
which, individually or collectively, could result in any (a) material adverse
effect upon the validity or enforceability of any material Loan Paper, (b)
material adverse effect upon the financial condition or business operations of
Borrower, or (c) Default.
MATURITY DATE means the earlier of (a) subject to the extension provisions
of SECTION , March 15, 1998, and (b) the date that the Senior Notes are declared
immediately due and payable pursuant to SECTION in the event of a Default;
provided that Lender's rights continue until the Obligation has been paid and
performed in full.
NOTE is defined in SECTION .
OBLIGATION means all debt now or hereafter owed to Lender by Borrower
pursuant to any Loan Paper, together with all interest accruing thereon and
costs, expenses and attorneys' fees incurred in the enforcement or collection
thereof.
SENIOR NOTES means the Note issued under this agreement and each of the
other promissory notes of similar tenor issued by Borrower under loan agreements
of even date herewith, in an aggregate principal amount of $4,000,000.
TERM LOAN is defined in SECTION .
13. MISCELLANEOUS.
14. All financial terms shall be determined in accordance with GAAP, and the
accounting principles applied in a current period shall be comparable in all
respects to those applied during the preceding comparable period.
a) THE LAWS XX XXX XXXXX XX XXXXX XXX XXX XXXXXX XXXXXX SHALL GOVERN THE RIGHTS
AND DUTIES OF THE PARTIES HERETO AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT
AND INTERPRETATION OF THE LOAN PAPERS. Where appropriate, words of any number
shall include the plural and singular or of any gender shall include each
other gender. Headings and
11
captions may not be used in interpreting provisions in the Loan Papers.
References to monetary amounts and payments are to United States currency.
Any action that is due on a non-Texas banking business day may be delayed
until the next succeeding Texas banking business day, but interest accrues on
any payment until made. Unless specifically otherwise provided, any
communication under the Loan Papers to any party must be in writing (which
may be by facsimile transmission if a facsimile number is provided herein for
such party and if, without affecting the date such facsimile transmission was
actually made, subsequently confirmed by delivery or mailing in accordance
with this paragraph) to be effective and shall be deemed to have been given
on the day actually delivered or, if mailed, on the third Texas banking
business day after it is enclosed in an envelope, addressed to the party to
be notified, properly stamped, sealed and deposited in the appropriate postal
service. Until changed by notice pursuant hereto, the address for each party
is set forth after its name on the first page of this agreement. The form,
substance and number of counterparts of each writing to be furnished under
any Loan Paper must be satisfactory to Lender. An exception to a covenant
does not permit violation of any other covenant. All provisions in any Loan
Paper shall survive all closings under the Loan Papers and shall not be
affected by any investigation made by any party. If any provision in any Loan
Paper is unenforceable, the remaining provisions thereof shall remain in full
force and effect. The Loan Papers may be amended only by an instrument in
writing executed jointly by Borrower and Lender, and supplemented only by
documents delivered or to be delivered in accordance with the express terms
thereof. If any payment is ever rescinded or must be restored or returned for
any reason, then all rights and obligations are automatically reinstated as
though the payment had not been made. Any conflict or ambiguity between the
terms and provisions herein and terms and provisions in any other Loan Paper
shall be controlled by the terms and provisions herein. Any Loan Paper may be
executed in any number of counterparts, with the same effect as if all
signatories had signed the same document, and all of those counterparts
constitute, collectively, one agreement.
14. ENTIRETY. THE LOAN PAPERS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
15. ACCEPTANCE; PARTIES BOUND. This agreement binds and inures to the benefit of
Lender and Borrower, and their respective successors and assigns; provided
that Borrower may not, without the prior written consent of Lender, assign
any rights, duties, or obligations hereunder, and any purported assignment
without such consent is void.
Very truly yours,
CHENIERE ENERGY, INC.
12
Xxx X. Xxxxxxxxx
Chief Financial Officer
The foregoing is accepted and agreed to in all respects.
LENDER:
By:
Name:
Title:
13
SCHEDULE 1
CLOSING DOCUMENTS
1. SECURITIES PURCHASE AGREEMENT between Borrower and Lender.
2. TERM NOTE executed by Borrower.
3. WARRANT AGREEMENT representing the Lender Warrants.
4. STOCK CERTIFICATES representing the Lender Stock.
14
EXHIBIT A
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED ("ACT"), OR
UNDER ANY APPLICABLE STATE SECURITIES LAWS, AND THEY CANNOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE HYPOTHECATED EXCEPT IN ACCORDANCE WITH
THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH STATE LAWS OR UPON DELIVERY TO
THE COMPANY OF AN OPINION OF LEGAL COUNSEL SATISFACTORY TO THE COMPANY THAT AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
Form of
WARRANT TO PURCHASE COMMON STOCK
OF
CHENIERE ENERGY, INC.
This Warrant to Purchase Common Stock (this "Warrant") is issued
__________________, 1997, by Cheniere Energy, Inc., a Delaware corporation (the
"Company"), to __________________ (the "Holder").
1. Issuance of Warrant; Term. The Company hereby grants to Holder,
subject to the provisions hereinafter set forth, the right to purchase
_________________ shares of common stock $.003 par value per share, of the
Company (the "Common Stock"). The shares of Common Stock issuable upon exercise
of this Warrant are hereinafter referred to as the "Shares." This Warrant shall
be exercisable at any time before 5:00 p.m. (Houston, Texas time) on December
31, 2001.
2. Exercise Price. This exercise price per share for which all or any of
the Shares may be purchased pursuant to the terms of this Warrant shall be
$_____________ (the "Exercise Price").
3. Exercise
a This Warrant may be exercised by Holder in whole or in part, upon
delivery of written notice of intent to the Company at the address of the
Company set forth below its signature below or such other address as the Company
shall designate in written notice to Holder, together with this Warrant and
payment (in the manner described in Section 3(b) below) for the aggregate
Exercise Price of the Shares so purchased. Upon exercise of this Warrant as
aforesaid, the Company shall as promptly as practicable execute and deliver to
Holder a certificate or certificates for the total number of whole Shares for
which this Warrant is being exercised in such names and denominations as are
requested by Holder. If this Warrant shall be exercised with respect to less
than all of the Shares, Holder shall be entitled to receive a new Warrant
covering the number of Shares in respect of which this Warrant shall not have
been exercised, which new Warrant shall in all other respects be identical to
this Warrant.
b Payment for the Shares to be purchased upon exercise of this
Warrant may be made by the delivery of a certified or cashier's check payable to
the Company for the aggregate Exercise Price of the Shares to be purchased.
4. Covenants and Conditions. The above provisions are subject to the
following:
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a Neither this Warrant not the Shares have been registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws
("Blue Sky Laws"). This Warrant and the Shares have been acquired for
investment purposes and not with a view to distribution or resale, and the
Shares may not be made subject to a security interest, pledged, hypothecated,
sold or otherwise transferred without an effective registration statement
therefor under the Act and such applicable Blue Sky Laws or an opinion of
counsel (which opinion and counsel rendering same shall be reasonably acceptable
to the Company) that registration is not required under the Act and under any
applicable Blue Sky Laws. The certificates representing the Shares shall bear
substantially the following legend:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN
ACQUIRED FOR THE PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER THE
ACT OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE
WITH REGARD THERETO, OR (II) IN THE OPINION OF COUNSEL (WHICH OPINION AND
COUNSEL SHALL BE REASONABLY SATISFACTORY TO THE COMPANY) REGISTRATION UNDER
THE LAW OR SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN
CONNECTION WITH SUCH PROPOSED OFFER, SALE OR TRANSFER.
Other legends as required by applicable federal and state laws may be
placed on such certificates. Holder and the Company agree to execute such
documents and instruments as counsel for the Company reasonably deems necessary
to effect compliance of the issuance of this Warrant and any Shares issued upon
exercise hereof with applicable federal and state securities laws.
b The Company covenants and agrees that all Shares which may be
issued upon exercise of this Warrant will, upon issuance and payment therefor,
be legally and validly issued and outstanding, fully paid and nonassessable.
5. Warrantholder not Stockholder. This Warrant does not confer upon
Holder any voting rights or other rights as a stockholder of the Company.
16
6. Certain Adjustments.
6.1 Capital Reorganizations, Mergers, Consolidations or Sales of
Assets. If at any time there shall be a capital reorganization (other than a
combination or subdivision of Common Stock otherwise provided for herein), a
share exchange (subject to and duly approved by the stockholders of the Company)
or a merger or consolidation of the Company with or into another corporation, or
the sale of the Company's properties and assets as, or substantially as, an
entirety to any other person, then, as a part of such reorganization, share
exchange, merger, consolidation or sale, lawful provision shall be made so that
Holder shall thereafter be entitled to receive upon exercise of this Warrant,
during the period specified in this Warrant and upon payment of the Exercise
Price, the number of shares of stock or other securities or property of the
Company or the successor corporation resulting from such reorganization, share,
exchange, merger, consolidation or sale, to which Holder would have been
entitled under the provisions of the agreement in such reorganization, share
exchange, merger, consolidation or sale if this Warrant had been exercised
immediately before that reorganization, share exchange, merger, consolidation or
sale. In any such case, appropriate adjustment (as determined in good faith by
the Company's Board of Directors) shall be made in the application of the
provisions of this Warrant with respect to the rights and interests of Holder
after the reorganization, share exchange, merger, consolidation or sale to the
end that the provisions of this Warrant (including adjustment of the Exercise
Price then in effect and the number of the Shares) shall be applicable after
that event, as near as reasonably may be, in relation to any shares or other
property deliverable after that event upon exercise of this Warrant.
17
6.2 Splits and Subdivisions. If the Company at any time or from time
to time fixes a record date for the effectuation of a split or subdivision of
the outstanding shares of Common Stock or the determination of the holders of
Common Stock entitled to receive a dividend or other distribution payable in
additional shares of Common Stock or other securities or rights convertible
into, or entitling the holder thereof to receive directly or indirectly,
additional shares of Common Stock (hereinafter referred to as the "Common Stock
Equivalents") without payment of any consideration by such holder for the
additional shares of Common Stock or Common Stock Equivalents, then, as of such
record date (or the date of such distribution, split or subdivision if no record
date is fixed), the Exercise Price shall (i) in the case of a split or
subdivision, be appropriately decreased and the number of the Shares shall be
appropriately increased in proportion to such increase of outstanding shares and
(ii) in the case of a dividend or other distribution, the holder of the warrant
shall have the right to acquire without additional consideration, upon exercise
of the warrant, such property or cash as would have been distributed in respect
of the shares of Common Stock for which the warrant was exercisable had such
shares of Common Stock been outstanding on the date of such distribution.
6.3 Combination of Shares. If the number of shares of Common Stock
outstanding at any time after the date hereof is decreased by a combination or
reverse stock split of the outstanding shares of Common Stock, the Exercise
Price shall be appropriately increased and the number of the Shares shall be
appropriately decreased in proportion to such decrease in outstanding shares.
6.4 Adjustments for Other Distributions. In the event the Company
shall declare a distribution payable in securities of other persons, evidences
of indebtedness issued by the Company or other persons, assets (excluding cash
dividends) or options or rights not referred to in Section 6.2, upon exercise of
this Warrant, Holder shall be entitled to a proportionate share of any such
distribution as though Holder was the holder of the number of shares of Common
Stock of the Company into which this Warrant may be exercised as of the record
date fixed for the determination of the holders of Common Stock of the Company
entitled to receive such distribution.
6.5 Certificate as to Adjustments. In the case of each adjustment or
readjustment of the Exercise Price pursuant to this Section 6, the Company will
promptly compute such adjustment or readjustment in accordance with the terms
hereof and cause a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based
to be delivered to Holder. The Company will, upon the written request at any
time of Holder, furnish or cause to be furnished to Holder a certificate setting
forth:
a Such adjustment and readjustments;
b The Exercise Price at the time in effect; and
c The number of Shares and the amount, if any, of other property
at the time receivable upon the exercise of the Warrant.
6.6 Notices of Record Date, etc. In the event of:
a Any taking by the Company of a record of the holders of any class
of securities of the Company for the purpose of determining the holders thereof
who are entitled to receive any dividends or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right; or
18
b Any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer of all or
substantially all of the assets of the Company to any other person or any
consolidation, share exchange or merger involving the Company; or
c Any voluntary or involuntary dissolution, liquidation or winding up
of the Company, the Company will mail to Holder at least 20 days prior to the
earliest date specified herein, a notice specifying:
i The date on which any such record is to be taken for the
purpose of such dividend, distribution or right, and the amount and
character of such dividend, distribution or right; and
ii The date on which any such reorganization, reclassification,
transfer, consolidation, share exchange, merger, dissolution, liquidation
or winding up is expected to become effective and the record date for
determining stockholders entitled to vote thereon.
7 Call of Warrant. 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 200% or more of the
Exercise Price for a period of 20 consecutive trading days (all as determined in
good faith by the Company's Board of Directors) at a price equal to $.01 per
share of Common Stock for which this Warrant shall be exercisable on the Call
Date (as defined below). The Company shall give the holder of this Warrant at
least 30 days prior written notice of any such call of this Warrant, which
notice shall certify the foregoing condition for such call and set forth the
date upon which the call shall occur (the "Call Date"). The holder of this
Warrant shall, however, be entitled to exercise this Warrant, in whole or in
part, prior to the Call Date and, in that event, the Company's right to call
this Warrant shall be limited to the extent to which the Warrant remains
unexercised on the Call Date.
8 Reservation of Common Stock. The Company shall at all times reserve and
keep available out of its authorized but unissued shares of Common Stock, solely
for the purpose of effecting the exercise of this Warrant, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
exercise of this Warrant, and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the exercise
of the entire Warrant, in addition to such other remedies as shall be available
to the holder of this Warrant, the Company will use commercially reasonable
efforts to take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purpose.
9 Split-Up, Combination, Exchange and Transfer of Warrants. Subject to
and limited by the provisions of Section 4(a) hereof, this Warrant may be split
up, combined or exchanged for another Warrant or Warrants containing the same
terms and entitling the Holder to purchase a like aggregate number of Shares.
If the Holder desires to split up, combine or exchange this Warrant, the Holder
shall make such request in writing delivered to the Company and shall surrender
to the Company this Warrant and any other Warrants to be so split up, combined
or exchanged. Upon any such surrender for a split-up, combination or exchange,
the Company shall execute and deliver to the person entitled thereto a Warrant
or Warrants, as the case may be, as so requested. The Company shall not be
required to effect any split-up, combination or exchange which will result in
the issuance of a Warrant entitled the Warrantholder to purchase upon exercise a
fraction of a share of Common Stock or a fractional Warrant.
19
The Company may require such Holder to pay a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any split-up,
combination or exchange of Warrants.
10 Successors and Assigns. All the covenants and provisions of this
Warrant shall bind and inure to the benefit of the Company's successors and
assigns, and the heirs, legatees, devisees, executors, administrators, personal
and legal representatives, and successors and permitted assigns of Holder.
11 Governing Law. This Warrant shall be governed by and construed in
accordance with the laws, and not the laws of conflicts, of the State of
Delaware. The Holder hereby consents and agrees to submit to the jurisdiction
in the United States of the District Court of the State of Texas located in
Xxxxxx County or of the United States District Court for the Southern District
of Texas for any action or proceeding brought by the Company arising under this
Warrant and to the venue of such action or proceeding in such courts.
CHENIERE ENERGY, INC.
By: ____________________________________________
Name: ____________________________________________
Title: _____________________________
20
EXHIBIT B
FORM OF SENIOR TERM NOTE
$________________ December ___, 1997
FOR VALUE RECEIVED, the undersigned ("MAKER") hereby promises to pay to the
order of ______________________ ("PAYEE"), at its offices at
____________________________, the principal sum of ___________________ DOLLARS,
together with interest, as hereinafter described.
This note is executed and delivered pursuant to the Agreement (as renewed,
extended, and amended from time to time, the "AGREEMENT") dated as of December
15, 1997, between Maker and Payee. Unless indicated otherwise, capitalized
terms in this note are used as defined in the Agreement. This note is one of the
Loan Papers referred to in the Agreement and is therefore subject to the
applicable provisions of the Agreement (including, without limitation, SECTION
13 thereof).
The principal of this note is due and payable on the Maturity Date.
Interest on this note shall be due and payable quarterly as it accrues and at
maturity.
The principal from day to day unpaid shall, except as stated below, bear
interest at a rate per annum which shall from day to day be equal to the lesser
of (a) the Maximum Rate (hereinafter defined) and (b) the sum of 4% plus LIBOR.
At the option of the holder of this note and to the extent permitted by
applicable law, all past-due principal of this note and accrued and past-due
interest on this note shall bear interest from the date due and payable (stated
or by acceleration) until paid at a rate per annum which shall from day to day
be equal to the lesser of (a) the Maximum Rate and (b) the sum of 4% plus LIBOR,
regardless of whether such payment is made before or after entry of a judgment.
Each change in the Maximum Rate will become effective, without notice to Maker
or any other person or entity, upon the effective date of such change.
If at any time the rate determined under either clause (b) in the foregoing
paragraph (the "CONTRACT RATE") exceeds the Maximum Rate, the rate of interest
on this note shall be limited to the Maximum Rate, but any subsequent reductions
in the Contract Rate shall not reduce the rate of interest below the Maximum
Rate until the total amount of interest accrued equals the amount of interest
which would have accrued if the Contract Rate applicable from time to time had
at all times been in effect. If at maturity (stated or by acceleration), or at
final payment of this note, the total amount of interest paid or accrued is less
than the amount of interest which would have accrued if the Contract Rate
applicable from time to time had at all times been in effect, then, at such time
and to the extent permitted by applicable law, Maker shall pay to the holder
hereof an amount equal to the sum of (a) the lesser of the
21
amount of interest which would have accrued if the Contract Rate applicable from
time to time had at all times been in effect and the amount of interest which
would have accrued if the Maximum Rate had at all times been in effect minus (b)
the amount of interest actually paid or accrued on this note.
Interest shall be calculated on the basis of actual days (including the
first day but excluding the last day) elapsed but computed as if each calendar
year consisted of 360 days (unless the result would exceed the Maximum Amount,
in which event such interest shall be calculated on the basis of a year of 365
or 366 days, as the case may be).
As used herein, the terms "MAXIMUM AMOUNT" and "MAXIMUM RATE" mean,
respectively, the maximum amount and the maximum rate of interest which, under
applicable law, the holder hereof is permitted to contract for, charge, take,
reserve or receive on this note. Regardless of any provision in the Loan
Papers, the holder hereof shall never be entitled to contract for, charge, take,
reserve, receive, or apply, as interest on this note any amount in excess of the
Maximum Amount, and, if the holder hereof ever contracts for, charges, takes,
reserves, receives or applies as interest any such excess, it shall be deemed a
partial prepayment of principal and treated hereunder as such and any remaining
excess shall be refunded to Maker. In determining whether or not the interest
paid or payable, under any specific contingency, exceeds the Maximum Amount,
Maker and the holder hereof shall, to the maximum extent permitted under
applicable law, (a) treat all advances as but a single extension of credit (and
the holder hereof and Maker agree that such is the case and that any provision
herein for multiple advances is for convenience only), (b) characterize any
nonprincipal payment as an expense, fee or premium rather than as interest, (c)
exclude voluntary prepayments and the effects thereof, and (d) "spread" the
total amount of interest throughout the entire contemplated term of this note;
provided that if this note is paid in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period of
existence hereof exceeds the Maximum Amount, the holder hereof shall refund such
excess, and, in such event, the holder hereof shall not to the extent permitted
by applicable law, be subject to any penalties provided by any laws for
contracting for, charging, taking, reserving or receiving interest in excess of
the Maximum Amount. To the extent the laws of the State of Texas are applicable
for purposes of determining the "Maximum Rate" or the "Maximum Amount," such
term shall mean the "indicated rate ceiling" from time to time in effect under
Article 1.04, Title 79, Revised Civil Statutes of Texas, as amended.
Maker and each surety, endorser, guarantor and other party ever liable for
payment of any part hereof jointly and severally waive presentment and demand
for payment, protest, notice of intention to accelerate, notice of acceleration
and notice of protest and nonpayment, and agree that their liability on this
note shall not be affected by, and hereby consent to, any renewal or extension
in the time of payment hereof, any indulgences, or any release or change in any
security for the payment of this note.
CHENIERE ENERGY, INC.
22
By:
Name:
Title:
23
