1.	Amendments to Credit Agreement.  Subject to the satisfaction of each of the conditions referred to in Section 4 hereof, the Credit Agreement is amended as follows:

 

1.1.	Amendment to Section 1.01 (Definitions).  Section 1.01 of the Credit Agreement is amended as follows:

 

1.1.1.

Section 1.01 of the Credit Agreement is amended by adding the following new definitions in proper alphabetical sequence:

 

 

 

 

1.1.2.

The definition of “Exchangeable Portion” in Section 1.01 of the Credit Agreement is amended and restated in its entirety to read as follows:

 

1.1.3.

The definition of “Investors’ Agreement” in Section 1.01 of the Credit Agreement is amended and restated in its entirety to read as follows

 

1.2.	Amendment to Section 2.08 (Voluntary Prepayments).  Section 2.08 of the Credit Agreement is amended as follows:

 

1.2.1.

Section 2.08(a) of the Credit Agreement is amended and restated in its entirety to read as follows:

 

 

1.2.2.

Section 2.08(b) is added to the Credit Agreement to read in its entirety as follows:

 

1.3.	Amendment to Section 2.09 (Mandatory Prepayments).  Section 2.09 of the Credit Agreement is amended as follows:

 

1.3.1.

Section 2.09(a) of the Credit Agreement is restated in its entirety to read “[RESERVED].”

 

1.3.2.

Section 2.09(d) is added to the Credit Agreement to read in its entirety as follows:

 

1.3.3.

Section 2.09(e) is added to the Credit Agreement to read in its entirety as follows:

 

 

1.4.	Amendment to Section 2.13 (Exchange of Loans).  Section 2.13 of the Credit Agreement is restated in its entirety to read as follows:

 

 

1.5.	Amendment to Section 2.14 (Mandatory Principal Payments).  The last sentence of Section 2.14 of the Credit Agreement is restated to read in its entirety as follows:

 

 

 

 

1.6.	Amendment to Preamble of Article 5 (Affirmative Covenants).  The opening paragraph of Article 5 of the Credit Agreement is restated to read in its entirety as follows:

 

1.7.	Amendment to Section 5.18 (Certain Post-Closing Matters).  Section 5.18 of the Credit Agreement is amended as follows:

 

1.7.1.

Section 5.18(a) of the Credit Agreement is restated in its entirety to read “[RESERVED]”.

 

1.7.2.

Section 5.18(f) is added to the Credit Agreement to read in its entirety as follows:

 

1.8.	Amendment to Preamble of Article 6 (Negative Covenants).  The opening paragraph of Article 6 of the Credit Agreement is restated to read in its entirety as follows:

 

 

1.9.	Amendment to Section 6.04 (Investments, Loans and Advances).  Section 6.04 of the Credit Agreement is amended as follows:

 

1.9.1.

Section 6.04(e) of the Credit Agreement is amended to delete the word “and” at the end thereof.

 

1.9.2.

Section 6.04(f) of the Credit Agreement is restated to read in its entirety as follows:

 

1.9.3.

Section 6.04(g) is added to the Credit Agreement to read in its entirety as follows:

 

1.10.

Amendment to Section 6.05 (Mergers, Consolidations, Sales of Assets and Acquisitions; Issuance of Equity).  Section 6.05 of the Credit Agreement is amended as follows:

 

1.10.1.

Section 6.05(a) of the Credit Agreement is amended to insert the phrase “except as permitted pursuant to Section 6.05(d), 6.05(e) or 6.05(f)” immediately following the phrase “any assets (whether now owned or hereafter acquired) of such Loan Party”.

 

1.10.2.

Section 6.05(d) of the Credit Agreement is amended to insert the phrase “Except as permitted by Section 6.05(e) or 6.05(f),” at the beginning of Section 6.05(d).

 

1.10.3.

Section 6.05(e) is added to the Credit Agreement to read in its entirety as follows:

 

 

1.10.4.

Section 6.05(f) is added to the Credit Agreement to read in its entirety as follows:

 

 

 

1.11.

Amendment to Section 6.16 (Modification of Other Indebtedness).  Section 6.16 of the Credit Agreement is amended as follows:

 

1.11.1.

Section 6.16(b) of the Credit Agreement is amended by adding the following phrase to the beginning thereof:  “Except as provided in Section 6.16(c) below,”.

 

1.11.2.

Section 6.16(c) is added to the Credit Agreement to read in its entirety as follows:

 

1.12.

Amendment to Section Article VII (Events of Default).  Article VII of the Credit Agreement is amended as follows:

 

1.12.1.

Paragraph (m) of Article VII is restated in its entirety to read “(m) [RESERVED];”

 

1.12.2.

Paragraph (n) of Article VII is deleted and restated in its entirety to read “(n) [RESERVED]; or”.

 

1.12.3.

Paragraph (p) is added to Article VII of the Credit Agreement to read in its entirety as follows:

 

1.13.

Amendment to Exhibit H (Form Unit Sale Price Approval Certificate).  Exhibit “H” is hereby added to the Credit Agreement to read in its entirety as shown in Schedule II to this Amendment.

 

2.

Amendment to Investors’ Agreement and Consent to Amendment to Certificate of Designations.  Subject to the satisfaction of each of the conditions referred to in Section 4 hereof, each of the Lenders (in its capacity as a Lender and as an Investor) hereby approves an amendment to the Certificate of Designations of Series B Convertible Preferred Stock of Cheniere Energy, Inc., which removes the voting rights of such Series B Preferred Stock, provided that such amendment shall not become effective until all of the conditions set forth

 

 

 

 

in Section 4 of this Amendment have been satisfied.  In addition, subject to the satisfaction of each of the conditions referred to in Section 4 hereof, the Investors’ Agreement is amended as follows:

 

 

3.

Representations and Warranties.  Each Loan Party hereby represents and warrants to the Administrative Agent, the Collateral Agent and the Lenders (in their capacity as Lenders and as Investors), which representations and warranties shall survive the execution and delivery of this Amendment, as follows:

 

 

 

 

3.1.	Absence of Defaults.  No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would constitute a Default or Event of Default after giving effect to this Amendment.

 

3.2.

Enforceability.  This Amendment has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

 

3.3.

Authorization, No Conflicts.  The execution, delivery and performance of this Amendment by each Loan Party (i) has been duly authorized by all requisite organizational action of such Person and (ii) will not (A) violate (1) any provision of law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents or by-laws of such Person, (2) any order of any Governmental Authority or arbitrator or (3) any provision of any indenture, agreement or other instrument to which such Person is a party or by which it or any of its property is or may be bound, (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under any such indenture, agreement or other instrument or (C) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by such Person (other than Liens created under the Security Documents).

 

3.4.

Incorporation of Representations and Warranties. The representations and warranties contained in Article III of the Credit Agreement are and will be true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of this date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date.

 

4.

Effectiveness.  The effectiveness of this Amendment and the amendments to the Credit Agreement set forth in Section 1 hereof, the amendments to the Investors’ Agreement set forth in Section 2 hereof and the amendment to the Certificate of Designations of Series B Convertible Preferred Stock of Cheniere Energy, Inc. permitted pursuant to Section 2 hereof are each subject to the satisfaction of all the following conditions precedent:

 

4.1.	Execution.  The Administrative Agent shall have received duly executed and delivered counterparts of this Amendment that, when taken together, bear the signatures of the Loan Parties, the Lenders (in their capacity as Lenders and as Investors), the Administrative Agent and the Collateral Agent.

 

4.2.

Issuance of the New CEI Shares.  The NYSE Amex shall have approved the issuance and listing by CEI of 10,125,000 shares of its common stock (the “New CEI Shares”) and CEI shall have issued and delivered such New CEI Shares to each Non-Convertible Lender in an amount for such Non-Convertible Lender set forth on Schedule I hereto.

 

 

 

 

The New CEI Shares shall be subject to the trading restrictions described in Section 5 hereof, and the Non-Convertible Lenders shall have the registration rights with respect to such New CEI Shares as described in Section 6 hereof.

 

4.3.	Representations and Warranties.  The representations and warranties contained herein shall be true and correct in all respects.

 

4.4.	Necessary Consents.  Each Loan Party shall have obtained all material consents necessary or advisable in connection with the transactions contemplated by this Amendment.

 

4.5.	Fees.  All fees and expense reimbursement payable by the Borrower to the Administrative Agent, the Collateral Agent and the Lenders for which invoices have been presented shall have been paid in full.

 

4.6.

Opinion of Counsel to CEI.  Each of the Non-Convertible Lenders shall have received an opinion of counsel to CEI in form and substance reasonably satisfactory to such Non-Convertible Lenders addressing the due issuance, authorization and delivery of the New CEI Shares by CEI and that such New CEI Shares, when issued, are fully paid and non-assessable.

 

 

5.

Trading Restrictions Applicable to the New CEI Shares.  Beginning on the Eighth Amendment Effective Date and ending on, and including, the date that is 270 days after the Eighth Amendment Effective Date, the Non-Convertible Lenders will not, without the prior written consent of CEI, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any of the New CEI Shares, (ii) enter into any swap or other arrangement that transfers to another Person, in whole or in part, any of the economic consequences of ownership of the New CEI Shares or (iii) publicly announce an intention to effect any transaction specified in (i) or (ii); provided, however, that the foregoing restrictions shall not apply to (A) one-fourth of the New CEI Shares issued to such Non-Convertible Lender effective upon the issuance thereof, (B) an additional one-fourth of the New CEI Shares issued to such Non-Convertible Lender effective following the date that is 90 days after the Eighth Amendment Effective Date and (C) an additional one-fourth of the New CEI Shares issued to such Non-Convertible Lender effective following the date that is 180 days after the

 

 

 

 

Eighth Amendment Effective Date; provided that notwithstanding the foregoing, transfers to or among Non-Convertible Lenders or Affiliates of Non-Convertible Lenders shall not be restricted or prohibited so long as such transferee shall be bound by the foregoing transfer restrictions.

 

6.	Registration Rights Applicable to the New CEI shares.

 

 

 

 

 

 

 

 

 

 

 

 

6.2	Legends; Securities Law Compliance

 

6.2.1

Each certificate representing Common Stock that is restricted stock as defined in Rule 144 under the Securities Act shall bear the following legend:

 

 

6.2.2

Certificates representing Common Stock shall bear any other legends required by applicable state law.  When any Common Stock has been registered under the Securities Act, and such Common Stock has been sold pursuant to such registration or pursuant to Rule 144 under the Securities Act or is eligible to be sold pursuant to such Rule without volume limitations or other restrictions, the holder of such Common Stock shall be entitled to exchange the certificate representing such Common Stock for a certificate not bearing the legend required by Section 6.2.1 of this Amendment.

 

6.3	Registration Rights

 

6.3.1

As provided in Section 6.3.5 of this Amendment, CEI shall file a registration statement on Form S-3 or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration Statement”), and such Short-Form Registration Statement will be a “shelf” registration statement providing for the registration, and the sale on a continuous or delayed basis, of the Registrable Securities pursuant to Rule 415 under the Securities Act from and after the Eighth Amendment Effective Date.  Upon filing a Short-Form Registration Statement, CEI will, if applicable, use its commercially reasonable efforts to (i) cause such Short-Form Registration Statement to be declared effective, and (ii) keep such Short-Form Registration Statement effective with the SEC at all times when any Registrable Securities are outstanding.  Any Short-Form Registration Statement shall be re-filed upon its expiration, and CEI shall cooperate in any shelf take-down by amending or supplementing the prospectus statement related to such Short-Form Registration Statement as may be reasonably requested by a Holder or as otherwise required; provided that, no Holder may be permitted to sell under such “shelf” registration statement during such times as the trading window is not open for CEI’s Board in accordance with CEI’s policies if such Holder has a representative on the Board.

 

6.3.2

If the filing, initial effectiveness or continued use of a Registration Statement would require CEI to make a public disclosure of material non-public

 

 

 

 

 

information, which disclosure in the good faith judgment of the Board (i) would be required to be made in any Registration Statement so that such Registration Statement would not be materially misleading, (ii) would not be required to be made at such time but for the filing, effectiveness or continued use of such Registration Statement, and (iii) could (A) reasonably be expected to adversely affect CEI or its business if made at such time, or (B) reasonably be excepted to interfere with CEI’s ability to effect a planned or proposed acquisition, disposition, financing, reorganization, recapitalization or similar transaction or (C) otherwise require premature disclosure of material information that CEI has a bona fide business purpose for preserving as confidential, then CEI may, upon giving prompt written notice of such determination of the Board to the participants in such registration (each of whom hereby agrees to maintain the confidentiality of all information disclosed to such participants, provided that, CEI shall not be required to disclose the nature of the delay or other confidential information), delay the filing or initial effectiveness of, or suspend use of, such Registration Statement; provided that, CEI shall not be permitted to do so (x) for more than sixty (60) days for a given occurrence of such a circumstance or (y) more than two (2) times during any twelve-month period.  In the event CEI exercises its rights under the preceding sentence, the Holders agree to suspend, promptly upon their receipt of the notice referred to above, their use of any prospectus or prospectus supplement relating to such registration in connection with any sale or offer to sell Registrable Securities.  CEI will pay all Registration Expenses incurred in connection with any such aborted registration or prospectus or prospectus supplement.

 

6.3.3

Intentionally omitted.

 

6.3.4

If any Holders intend that any Registrable Securities shall be distributed by means of an underwritten offering, such Holders will so advise CEI, and CEI will notify all of the Holders.  In such event, the lead underwriter to administer the offering will be promptly chosen by CEI, subject to the prior written consent of the Holders selling a majority of the securities to be sold in such offering, such consent not to be unreasonably withheld or delayed.  If CEI is unable to select an underwriter, the Holders may select an underwriter, subject to the prior written consent of CEI, not to be unreasonably withheld or delayed.  If neither CEI nor the Holders are able to select an underwriter, the proposed underwriting shall not proceed and CEI will not be in breach of this Amendment.  No Affiliate of GSO Capital Partners, LP shall be selected as an underwriter by either CEI or the Holders.  If the offering is underwritten, the right of any Holder to participate will be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting, and CEI and each such Holder will promptly enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.  If any Holder disapproves of the terms of the underwriting, such Holder may promptly elect to withdraw therefrom by written notice to CEI, the managing underwriter and the Holders.

 

 

 

 

6.3.5

Subject to Section 6.3.2 of this Amendment, CEI will use its commercially reasonable efforts to effect the registration of such Registrable Securities as soon as reasonably practicable.  CEI shall:

 

6.3.5.1

Prepare and file, within thirty (30) days of the Eighth Amendment Effective Date, with the SEC a Registration Statement with respect to such Registrable Securities, make all required filings with the Financial Industry Regulatory Authority and thereafter use its commercially reasonable efforts to cause such Registration Statement to become effective as soon as reasonably practicable and to remain effective as provided herein; provided that, before filing a Registration Statement or any amendments or supplements thereto, CEI will, at CEI’s expense, furnish or otherwise make available to the Holders’ Counsel copies of all such documents proposed to be filed and such other documents reasonably requested by such counsel, which documents will be subject to the review and reasonable comment of such counsel at CEI’s expense, including any comment letter from the SEC with respect to such filing or the documents incorporated by reference therein, and if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to CEI’s financial books and records, officers, accountants and other advisors;

 

6.3.5.2

Prepare and file with the SEC such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective for a period of either (i) not less than if such Registration Statement relates to an underwritten offering, such period as, based upon the opinion of counsel for the underwriters, a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer or such shorter period as will terminate when all of the securities covered by such Registration Statement have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statement (but in any event not before the expiration of any longer period required under the Securities Act) or (ii) continuously in the case of shelf registration statements and any shelf registration statement shall be re-filed upon its expiration (or in each case, such shorter period ending on the date that the securities covered by such shelf registration statement cease to constitute Registrable Securities), and cause the related prospectus to be supplemented by any prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;

 

 

 

 

6.3.5.3

Furnish to each participating Holder, and each managing underwriter, if any, such number of copies, without charge, of such Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, any other prospectus (including any prospectus filed under Rule 424, Rule 430A or Rule 430B of the Securities Act and any “issuer free writing prospectus” as such term is defined under Rule 433 promulgated under the Securities Act), all exhibits and other documents filed therewith and such other documents as such Holder or such managing underwriter may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by such Holder, and upon request a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Authority relating to such offer;

 

6.3.5.4

Use commercially reasonable efforts to register or qualify (or exempt from registration or qualification) such Registrable Securities, and keep such registration or qualification (or exemption therefrom) effective, under such other securities or blue sky laws of such United States jurisdictions as any participating Holder reasonably requests and do any and all other acts and things that may be reasonably necessary or reasonably advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder (provided that, CEI will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction);

 

6.3.5.5

Notify each participating Holder, the Holders’ Counsel and the managing underwriter(s), if any, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the happening of any event that makes any statement made in the Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, prospectus or documents and, as soon as reasonably practicable (but subject to the delay provisions of Section 6.3.2 of this Amendment), prepare and furnish to such Holder a reasonable number of copies of a supplement or amendment to such prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the

 

statement therein, in light of the circumstances in which they were made, not misleading;

 

6.3.5.6

Notify each participating Holder, the Holders’ Counsel and the managing underwriter(s), if any, (i) when such Registration Statement or the prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC for amendments or supplements to such Registration Statement or to amend or to supplement such prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for such purpose, to the extent that it is aware of such proceedings, (iv) if at any time the representations and warranties of CEI contained in any underwriting agreement contemplated by Section 6.3.5.12 below cease to be true and correct in any material respect, and (v) of the receipt by CEI of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose;

 

6.3.5.7

Upon the occurrence of an event contemplated in Section 6.3.5.5 of this Amendment or in Section 6.3.5.6(ii), 6.3.5.6(iii), 6.3.5.6(iv) or 6.3.5.6(v) of this Amendment (but subject to the delay provisions of Section 6.3.2 of this Amendment), prepare a supplement or amendment to the Registration Statement or supplement to the related prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that such prospectus as thereafter delivered to the participating Holders will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;

 

6.3.5.8

Use commercially reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange on which Common Stock issued by CEI is then listed or, if no similar securities issued by CEI are then listed on any securities exchange, use its commercially reasonable efforts to cause all such Registrable Securities to be listed on the AMEX or the NASDAQ stock market, as determined by CEI;

 

6.3.5.10

Provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;

 

6.3.5.11

Enter into such customary agreements (including underwriting agreements and, lock-up agreements in customary form (excluding any lock-up of Registrable Securities), and including provisions with

 

 

 

 

respect to indemnification and contribution in customary form) and take all such other customary actions as the participating Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, making members of management and executives of CEI available to participate in “road show,” similar sales events and other marketing activities;

 

6.3.5.12

In connection with any underwritten offering, make such representations and warranties to the participating Holders and the managing underwriter(s), if any, with respect to the business of CEI and CEI’s Subsidiaries, and the Registration Statement, prospectus, and documents incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by the issuer in underwritten offerings, and, if true, make customary confirmations of the same if and when requested;

 

6.3.5.13

If requested by any participating Holder, or the managing underwriter(s), if any, promptly include in a prospectus supplement or amendment such information as the Holder or managing underwriter(s), if any, may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such amendment as soon as reasonably practicable after CEI has received such request;

 

6.3.5.14

In the case of certificated Registrable Securities, cooperate with the participating Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder that that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the Holders or managing underwriters, if any, may request at least two business days prior to any sale of such Registrable Securities;

 

6.3.5.15

Make available for inspection by any participating Holders and the Holders’ Counsel, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such Holder or underwriter, to the extent reasonably requested and solely for conducting customary due diligence, all financial and other records, pertinent corporate documents and documents relating to the business of CEI, and cause CEI’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Holder, underwriter, attorney, accountant or agent in connection with such Registration Statement, provided that, it shall be a condition to such inspection and

 

 

 

 

receipt of such information that the inspecting person (i) enter into a confidentiality agreement in form and substance reasonably satisfactory to CEI and (ii) agree to minimize the disruption to CEI’s business in connection with the foregoing;

 

6.3.5.16

Otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and any applicable national securities exchange;

 

6.3.5.17

Timely provide to its security holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

 

6.3.5.18

In the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or ceasing trading of any securities included in such Registration Statement for sale in any jurisdiction, use every commercially reasonable effort to promptly obtain the withdrawal of such order;

 

6.3.5.19

In connection with any underwritten offering, obtain one or more comfort letters, addressed to the underwriters, if any, dated the effective date of such Registration Statement and the date of the closing under the underwriting agreement for such offering, signed by CEI’s independent registered public accountants (and if necessary, any other independent registered public accountants of any business acquired by CEI for which financial statements and financial data are, or are required to be, included in the Registration Statement) in customary form and covering such matters of the type customarily covered by comfort letters as such underwriters shall reasonably request;

 

6.3.5.20

In connection with any underwritten offering, provide legal opinions of CEI’s counsel, addressed to the underwriters, if any, dated the date of the closing under the underwriting agreement, with respect to the Registration Statement, each amendment and supplement thereto (including the preliminary prospectus) and such other documents relating thereto as the underwriter shall reasonably request in customary form and covering such matters of the type customarily covered by legal opinions of such nature; and

 

6.3.5.21

Obtain any required regulatory approval necessary for the Holders to sell their Registrable Securities in an offering, other than regulatory approvals required solely as a result of the nature of the Holder.

 

 

6.3.6

Except as otherwise provided in this Amendment, all expenses incidental to CEI’s performance of or compliance with this Amendment, including all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, word processing, duplicating and printing expenses, messenger, telephone and delivery expenses, expenses incurred in connection with any road show, and fees and disbursements of counsel for CEI and all independent certified public accountants and other persons retained by CEI (all such expenses, “Registration Expenses”), will be borne by CEI.  CEI will, in any event, pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit or quarterly review, the expenses of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which they are required to be listed hereunder.  The Holders of the securities so registered shall pay all underwriting discounts, selling commissions and transfer taxes applicable to the sale of Registrable Securities hereunder and any other Registration Expenses required by law to be paid by a selling holder pro rata on the basis of the amount of proceeds from the sale of their shares so registered and sold.

 

6.3.7

In connection with any registration, CEI will reimburse the Holders participating in such registration for their reasonable and customary expenses (other than underwriters’ discounts and commissions), including the reasonable fees and disbursements of one counsel to all the Holders (“Holders’ Counsel”).

 

6.3.8

No Holder may participate in any registration hereunder that is underwritten unless such Holder (i) agrees to sell its Registrable Securities on the basis provided in the underwriting arrangements in customary form entered into pursuant to this Amendment (including pursuant to the terms of any over-allotment or “green shoe” option requested by the managing underwriter(s), provided that, no such Holder will be required to sell more than the number of Registrable Securities that such Holder has requested CEI to include in any registration), (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, provided that, such Holder shall not be required to make any representations or warranties other than those related to title and ownership of shares and as to the accuracy and completeness of statements made in a Registration Statement, prospectus, offering circular, or other document in reliance upon and in conformity with written information furnished to CEI or the managing underwriter(s) by such Holder, and (iii) cooperates with CEI’s reasonable requests in connection with such registration or qualification (it being understood that CEI’s failure to perform its obligations hereunder, which failure is caused by such Holder’s failure to cooperate with such reasonable requests, will not constitute a breach by CEI of this Amendment).  Notwithstanding the foregoing, the liability of any Holder participating in such an underwritten

 

registration shall be limited to an amount equal to the amount of gross proceeds attributable to the sale of such Holder’s Registrable Securities.

 

6.3.9

Each Holder that is participating in any registration hereunder agrees that, upon receipt of any notice from CEI of the happening of any event of the kind described in Sections 6.3.2, 6.3.5.5, 6.3.5.6 and 6.3.5.7 of this Amendment, such Holder will forthwith discontinue the disposition of its Registrable Securities pursuant to the Registration Statement until such Holder receives copies of a supplemented or amended prospectus as contemplated by such Sections_6.3.5.5, 6.3.5.6 and 6.3.5.7 of this Amendment.

 

6.3.10

CEI will use its reasonable best efforts to timely file all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if CEI is not required to file such reports, it will, upon the request of a Holder, make publicly available such information as necessary to permit sales pursuant to Rule 144 or Regulation S under the Securities Act), and it will take such further action as any Holder may reasonably request, to the extent required from time to time to enable such Holder to sell shares of Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 or Regulation S under the Securities Act, as such rules may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC.  Upon the reasonable request of any Holder, CEI will deliver to such Holder a written statement as to whether it has complied with such information requirements, and, if not, the specifics thereof.

 

6.3.11

Subject to the delay provisions of Section 6.3.2 of this Amendment, in the event (i) CEI fails to file a Registration Statement on or prior to January 31, 2011, (ii) such Registration Statement is not declared or deemed effective on or prior to March 31, 2011 or (iii) a Registration Statement covering the Registrable Securities ceases to be effective at any time after its initial effectiveness, CEI will pay to the Holders on the next applicable interest payment date an amount equivalent to 2% per annum on the outstanding Borrowings and Permitted Accrued Interest owed under the Credit Agreement for each day that filing or effectiveness is late or ceases to be effective.

 

6.3.12 CEI shall have no further obligations under this Section 6 when there ceases to be any Registrable Securities outstanding.

 

7.	Reference to and Effect Upon the Loan Documents and the Investors’ Agreement.

 

7.1.

Except as specifically set forth above, the Credit Agreement, each other Loan Document and the Investors’ Agreement shall remain in full force and effect and is hereby ratified and confirmed.  Except to the extent expressly set forth herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Agents or any Lender under the Loan Documents, or any other document, instrument or agreement executed and/or delivered in connection therewith.

 

 

 

 

7.2.

Any reference in any Loan Document to the Credit Agreement and the Investors’ Agreement shall be a reference to the Credit Agreement and the Investors’ Agreement as modified by this Amendment, and any reference in any Loan Document to any other Loan Document shall be a reference to such referenced Loan Document as modified by this Amendment.

 

7.3.	This Amendment is a Loan Document.  The provisions of Section 9.15 of the Credit Agreement shall apply with like effect to this Amendment.

 

8.

Further Assurances.  Each Loan Party hereby agrees to authorize, execute and deliver all additional instruments, certificates, financing statements, agreements or documents, and take all such actions as the Administrative Agent, the Collateral Agent or the Lenders may reasonably request for the purposes of implementing or effectuating the provisions of this Amendment.

 

9.	Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.

 

10.	Headings.  Section headings in this Amendment are included herein for convenience of reference only and shall not constitute part of this Amendment for any other purposes.

 

11.	Counterparts.  This Amendment may be executed by all parties hereto in any number of separate counterparts each of which may be delivered in original, facsimile or other electronic (e.g., “.pdf”) form, and all of such counterparts taken together constitute one instrument.

 

12.

Severability.  In case any one or more of the provisions contained in this Amendment shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Amendment shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

 

13.	WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT, ANY OTHER LOAN DOCUMENTS OR THE INVESTORS’ AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.

 

14.

Final Agreement of the Parties.  THIS AMENDMENT, THE CREDIT AGREEMENT, THE INVESTORS’ AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

 

15.	Investors’ Agreement Signature by The Bank of New York Mellon. The parties hereto agree and acknowledge that The Bank of New York Mellon is not a party to the Investors’

 

 

 

 

Agreement and that its signature to this Amendment is being requested by the Lenders and the Loan Parties solely to in its capacity as Administrative Agent and Collateral Agent under the Credit Agreement and for the ease of the Lenders, Investors, Borrower, CEI and the other Loan Parties to avoid amending the Credit Agreement and Investors’ Agreement pursuant to separate documents.  The sole duties and obligations of The Bank of New York Mellon is as Administrative Agent and Collateral Agent under the Loan Documents and The Bank of New York Mellon has no duties or obligations express, implied or otherwise with respect to the Investors’ Agreement.

 

 

 

 

	CHENIERE CORPUS CHRISTI PIPELINE, L.P., as a Loan Party
	By:	/s/ Graham A. McArthur
		Name: Graham A. McArthur
		Title: Treasurer

	CHENIERE CREOLE TRAIL PIPELINE, L.P., as a Loan Party
	By:	/s/ Graham A. McArthur
		Name: Graham A. McArthur
		Title: Treasurer

	CHENIERE ENERGY OPERATING CO., INC., as a Loan Party
	By:	/s/ Graham A. McArthur
		Name: Graham A. McArthur
		Title: Treasurer

	CHENIERE MIDSTREAM HOLDINGS, INC., as a Loan Party
	By:	/s/ Graham A. McArthur
		Name: Graham A. McArthur
		Title: Treasurer

 

	CHENIERE ENERGY SHARED SERVICES, INC., as a Loan Party
	By:	/s/ Graham A. McArthur
		Name: Graham A. McArthur
		Title: Treasurer

 

 

 

	CHENIERE LNG, INC., as a Loan Party
	By:	/s/ Graham A. McArthur
		Name: Graham A. McArthur
		Title: Treasurer

 

 

 

	LENDERS AND INVESTORS

 

 

 

 

	BLACKSTONE DISTRESSED SECURITIES FUND L.P., as a Lender and an Investor
	By:	Blackstone Distressed Securities Associates L.P., its General Partner
	By:	Blackstone DD Associates L.L.C., its General Partner
	By:	/s/ Marisa J. Beeney
		Name: Marisa J. Beeney
		Title: Authorized Signatory

	INVESTMENT PARTNERS II (A), LLC, as a Lender and an Investor
	By:	Blackrock Financial Management, Inc., its investment manager
	By:	/s/ J. David Matter
		Name: J. David Matter
		Title: Managing Director
	By:	/s/ Marie M. Bender
		Name: Marie M. Bender
		Title: Managing Director

	SCORPION CAPITAL PARTNERS, LP, as a Lender and an Investor
	By:	Scorpion GP, LLC
	By:	/s/ Kevin R. McCarthy
		Name: Kevin R. McCarthy
		Title: Manager

 

	THE BANK OF NEW YORK MELLON, solely as Administrative Agent and Collateral Agent under the Credit Agreement and the other Loan Documents
	By:	/s/ Melinda Valentine
		Name: Melinda Valentine
		Title: Vice President

 

Non-Convertible Lender	Amount of New CEI Shares
GSO SPECIAL SITUATIONS FUND LP	2,716,119
GSO COF FACILITY LLC	4,402,174
GSO SPECIAL SITUATIONS OVERSEAS MASTER FUND LTD.	2,377,825
BLACKSTONE DISTRESSED SECURITIES FUND L.P.	115,295
INVESTMENT PARTNERS II (A), LLC	513,587