EX-10.9 10 dex109.htm NON-RECOURSE GUARANTY Execution Version NON-RECOURSE GUARANTY
Exhibit 10.9
Execution Version
This NON-RECOURSE GUARANTY AGREEMENT (as amended, supplemented, amended and restated or otherwise modified from time to time, this “Guaranty”), dated as of May 5, 2008, is made by CHENIERE ENERGY, INC., a Delaware corporation (the “Guarantor”), in favor of CREDIT SUISSE, as administrative agent (in such capacity and together with its successors, the “Administrative Agent”), for the benefit of (i) the banks and other financial institutions or entities (the “Lenders”) from time to time parties to the Credit Agreement, dated as of May 5, 2008 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Cheniere Common Units Holding, LLC, a Delaware limited liability company (the “Borrower”), the Loan Parties signatory thereto, the Lenders from time to time party thereto, Credit Suisse, as Administrative Agent, as collateral agent (in such capacity and together with its successors, the “Collateral Agent”), and as a Lender and (ii) the other Secured Parties (as defined herein).
ARTICLE I
“Administrative Agent” shall have the meaning assigned to such term in the preamble.
“Borrower” shall have the meaning assigned to such term in the preamble.
“Collateral Agent” shall have the meaning assigned to such term in the preamble.
“Credit Agreement” shall have the meaning assigned to such term in the preamble.
“Guarantor” shall have the meaning assigned to such term in the preamble.
“Guaranty” shall have the meaning assigned to such term in the preamble.
“Lenders” shall have the meaning assigned to such term in the preamble.
“Obligations” shall mean the collective reference to the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to any Agent or to any Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with the Credit Agreement, any other Loan Document, or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to any Agent or to any Lender that are required to be paid by the Borrower pursuant to the Credit Agreement or any other Loan Document) or otherwise.
“Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral Agent and the Lenders.
“Termination Date” shall mean the date on which the Loans have been indefeasibly repaid in full and all other Obligations under the Credit Agreement and the other Loan Documents have been completed and discharged.
ARTICLE II
(a) The Guarantor hereby absolutely, unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
(b) If and to the extent required in order for the Obligations of the Guarantor to be enforceable under applicable federal, state and other laws relating to the insolvency of debtors, the maximum liability of the Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by the Guarantor under such laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Section 2.5. The Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) the Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including the Guarantor in its capacity as debtor-in-possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Guaranty, (ii) the Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including the Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2.1(b) or to reduce, or request judicial relief reducing, the amount of its liability under this Guaranty, and (iii) the limitation set forth in this Section 2.1(b) may be enforced only to the extent required under such laws in order for the obligations of the Guarantor under this Guaranty to be enforceable under such laws and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of the Guarantor or other person entitled, under such laws, to enforce the provisions thereof.
(c) The Guarantor agrees that the Obligations may at any time and from time to time be incurred or permitted in an amount exceeding the maximum liability of the Guarantor under Section 2.1(b) without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of any Secured Party hereunder.
(d) The guarantee contained in this Section 2 shall remain in full force and effect until payment in full of the Obligations, notwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Obligations.
(e) No payment made by the Borrower, the Guarantor, any other guarantor or any other person or received or collected by any Secured Party from the Borrower, the Guarantor, any other guarantor or any other person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by the Guarantor in respect of the Obligations or any payment received or collected from the Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of the Guarantor hereunder until the Obligations are paid in full.
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or the Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or the Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
(a) any lack of validity, legality or enforceability of the Credit Agreement or any other Loan Document or other agreement relating to any Obligation;
(b) whether any other person or persons (an “Additional Guarantor”) shall become in any other way responsible to the Lenders for, or in respect of all or any part of the Obligations;
(c) whether any such Additional Guarantor shall cease to be so liable;
(d) the enforceability, validity, perfection or effect of perfection or non-perfection of any security interest securing the Obligations, or the validity or enforceability of any of the Obligations;
(e) whether any payment of any of the Obligations has been made and where such payment is rescinded or must otherwise be returned upon the occurrence of any action or event, including the insolvency or bankruptcy of the Borrower or any other Loan Party or otherwise, all as though such payment has not been made;
(f) the failure of any Secured Party
(i) to assert any claim or demand or to enforce any right or remedy against the Borrower, any other Loan Party or any other person (including any other guarantor) under the provisions of any Loan Document or other agreement relating to any Obligation or otherwise, or
(ii) to exercise any right or remedy against any other guarantor (including the Guarantor) of, or collateral securing, any Obligations;
(g) any change in the time, manner or place of payment of, or in any other term of, all or any part of the Obligations, or any other extension, compromise or renewal of any Obligation;
(h) any reduction, limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and the Guarantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, irregularity, compromise, unenforceability of, bankruptcy, insolvency, dissolution or liquidation of the Borrower or any other Loan Party, any change in the name, business, powers, capital structure, constitution, objects, organization, directors or management of the Borrower or any other Loan Party with respect to the transactions occurring either before or after such change; or any other event or occurrence affecting, any Obligations or otherwise;
(i) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Loan Document or other agreement relating to any Obligation;
(j) any addition, exchange or release of any collateral or of any person that is (or will become) a guarantor (including the Guarantor hereunder) of the Obligations, or any surrender or non-perfection of any collateral, or any amendment to or waiver or release or addition to, or consent to or departure from, any other guaranty held by any Secured Party securing any of the Obligations;
(k) any other defense based upon:
(i) the unenforceability or invalidity of all or any part of the Obligations, or any security or other guaranty for the Obligations or any failure of the Lender to take proper care or act in a commercially reasonable manner in respect of any security for the Obligations or any collateral subject to the security, including in respect of any disposition of the Collateral;
(ii) any act or omission of the Borrower or any other person, including the Lender, that directly or indirectly results in the discharge or release of the Borrower or any other Loan Party or any of the Obligations or any security for the Obligations; or
(iii) the Lender’s present or future method of dealing with the Borrower, any other Loan Party, any Additional Guarantor or any security (or any collateral subject to the security) or other guaranty for the Obligations;
(l) any right (whether now or hereafter existing) to require the Lender, as a condition to the enforcement of this Guaranty:
(i) to accelerate the Obligations or proceed and exhaust any recourse against the Borrower or any other person;
(ii) to realize on any security that it holds;
(iii) to marshal the assets of either the Borrower or any other Loan Party; or
(iv) to pursue any other remedy that the Guarantor may not be able to pursue itself and that might limit or reduce the Guarantor’s burden;
(m) presentment, demand, protest and notice of any kind including, without limitation, notices of default and notice of acceptance of this Guaranty;
(n) all suretyship defenses and rights of every nature otherwise available under New York law and the laws of any other jurisdiction;
(o) all other rights and defenses (legal or equitable) the assertion or exercise of which would in any way diminish the liability of the Guarantor under this Guaranty; or
(p) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Borrower, any other Loan Party, any surety or any other guarantor.
payment. In furtherance of the foregoing, at all times prior to the Termination Date the Guarantor shall refrain from taking any action or commencing any proceeding against the Borrower or any other Loan Party (or its successors or assigns, whether in connection with a bankruptcy proceeding or otherwise) to recover any amounts in respect of payments made under this Guaranty to any Secured Party.
(a) The Guarantor agrees that the entries made in the accounts maintained by the Administrative Agent and the Lenders pursuant to Section 2.04 of the Credit Agreement shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however, that (i) the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Guarantor hereunder and (ii) if there is any conflict between such accounts and the Register, the Register shall govern.
(b) All payments made hereunder shall be applied upon receipt (i) first, to pay any fees, indemnities, or expense reimbursements, then due to the Agents from the Borrower; (ii) second, to pay any fees or expense reimbursements then due to the Lenders from the Borrower; (iii) third, to pay interest due in respect of the Loans; (iv) fourth, to pay or prepay principal of the Loans; (v) fifth to the payment of any other Obligation due to an Agent or any Lender by the Borrower and (vi) sixth, after payment in full of the amounts specified in clauses (b)(i) through (b)(v), and following the Termination Date, to the Guarantor or any other person lawfully entitled to receive such surplus.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
(a) The representations and warranties contained in Article 3 of the Credit Agreement which are specifically stated to have been made by the Guarantor are hereby incorporated into this Guaranty.
(b) The Guarantor has knowledge of the Borrower’s and each other Loan Party’s financial condition and affairs and has adequate means to obtain from the Borrower and each other Loan Party on an ongoing basis information relating thereto and to the Borrower’s and such Loan Party’s ability to pay and perform the Obligations, and agrees to assume the responsibility for keeping, and to keep, so informed for so long as this Guaranty is in effect. The Guarantor acknowledges and agrees that the Secured Parties shall have no obligation to investigate the financial condition or affairs of any Loan Party for the benefit of the Guarantor nor to advise the Guarantor of any fact respecting, or any change in, the financial condition or affairs of the Borrower or any
other Loan Party that might become known to any Secured Party at any time, whether or not such Secured Party knows or believes or has reason to know or believe that any such fact or change is unknown to the Guarantor, or might (or does) materially increase the risk of the Guarantor as guarantor, or might (or would) affect the willingness of the Guarantor to continue as a guarantor of the Obligations.
(c) It is in the best interests of the Guarantor to execute this Guaranty inasmuch as the Guarantor will, as a result of being an indirect parent of the Borrower, derive substantial direct and indirect benefits from the Loans made from time to time to the Borrower by the Lenders pursuant to the Credit Agreement, and the Guarantor agrees that the Secured Parties are relying on this representation in agreeing to make Loans to the Borrower.
ARTICLE IV
As an original and independent obligation under this Guaranty, the Guarantor shall (i) indemnify the Administrative Agent acting on behalf of itself and the other Lenders against all out-of-pocket costs, losses, expenses and liabilities of whatever kind resulting from the failure by any other Loan Party to make due and punctual payment of any of the Obligations or resulting from any of the Obligations being or becoming void, voidable, unenforceable or ineffective against any other Loan Party (including, but without limitation, all out-of-pocket legal and other costs, charges and expenses incurred by the Administrative Agent on behalf of itself and the other Lenders, in connection with preserving or enforcing, or attempting to preserve or enforce, its rights under this Guaranty); and (ii) pay on demand the amount of such costs, losses, expenses and liabilities whether or not the Administrative Agent acting on behalf of itself and the other Lenders has attempted to enforce any rights against any other Loan Party or any other person or otherwise.
ARTICLE V
SECTION 5.8. Governing Law, Entire Agreement, etc. THIS GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). THIS GUARANTY AND THE OTHER LOAN DOCUMENTS AND OTHER AGREEMENTS RELATING TO ANY OBLIGATION CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 5.9. Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE GUARANTOR MAY BE BROUGHT AND MAINTAINED (TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE STATE OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY (TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
[signature page follows]
CHENIERE ENERGY, INC. | ||
By: | /s/ Xxxxxx X. XxXxxxxx | |
Name: | Xxxxxx X. XxXxxxxx | |
Title: | Treasurer |
ACCEPTED AND AGREED FOR ITSELF
AND ON BEHALF OF THE SECURED PARTIES:
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent | ||
By: | /s/ Xxxxxx Xxxxxxxx | |
Name: | Xxxxxx Xxxxxxxx | |
Title: | Managing Director | |
By: | /s/ Xxxxxx Xxxx | |
Name: | Xxxxxx Xxxx | |
Title: | Director |
Schedule 1
NOTICE ADDRESS OF THE GUARANTOR
Cheniere Energy, Inc.
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx XxXxxxxx, Treasurer
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
SCHEDULE 1-1