[ ]
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g)
OF THE SECURITIES EXCHANGE ACT OF 1934
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OR
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[X]
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the fiscal year ended
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December 31, 2018
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OR
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[ ]
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the transition period from
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to
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OR
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[ ]
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SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Date of event requiring this shell company report
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Commission file number
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000-50113
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Golar LNG Limited
|
(Exact name of Registrant as specified in its charter)
|
|
(Translation of Registrant's name into English)
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Bermuda
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(Jurisdiction of incorporation or organization)
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2nd Floor, S.E. Pearman Building, 9 Par-la-Ville Road, Hamilton HM 11, Bermuda
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(Address of principal executive offices)
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Michael Ashford, (1) 441 295 4705
2nd Floor, S.E. Pearman Building, 9 Par-la-Ville Road, Hamilton HM 11, Bermuda
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Title of each class
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Name of each exchange
on which registered
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Common Shares, par value, $1.00 per share
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Nasdaq Global Select Market
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None
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(Title of class)
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None
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(Title of class)
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101,302,404 Common Shares, par $1.00, per share
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Yes
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X
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No
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Yes
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No
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X
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Yes
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X
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No
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Yes
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X
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No
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Large accelerated filer
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X
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Accelerated filer
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Non-accelerated filer
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Emerging growth company
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U.S. GAAP
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X
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International Financial Reporting Standards as issued by the International Accounting
Standards Board
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Other
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Item 17
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Item 18
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Yes
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No
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X
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Yes
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No
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PART I
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PAGE
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ITEM 1.
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ITEM 2.
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ITEM 3.
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ITEM 4.
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ITEM 4A.
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ITEM 5.
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ITEM 6.
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ITEM 7.
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ITEM 8.
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ITEM 9.
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ITEM 10.
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ITEM 11.
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ITEM 12.
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PART II
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ITEM 13.
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ITEM 14.
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ITEM 15.
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ITEM 16A.
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ITEM 16B.
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ITEM 16C.
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ITEM 16D.
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ITEM 16E.
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ITEM 16F.
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ITEM 16G.
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ITEM 16H.
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PART III
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ITEM 17.
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ITEM 18.
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ITEM 19.
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•
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our inability and that of our counterparty to meet our respective obligations under the Lease and Operate Agreement entered into in connection with the BP Greater Tortue Ahmeyim project;
|
•
|
changes in liquefied natural gas, or LNG, carrier, floating storage and regasification unit, or FSRU, or floating liquefaction natural gas vessel, or FLNG, or small-scale LNG market trends, including charter rates, vessel values or technological advancements;
|
•
|
Golar Power Limited's ("Golar Power") ability to successfully complete and start up the Sergipe power station project and related FSRU contract;
|
•
|
changes in our ability to retrofit vessels as FSRUs or FLNGs and in our ability to obtain financing for such conversions on acceptable terms or at all;
|
•
|
our ability to close potential future sales of additional equity interests in
Golar Hilli LLC on a timely basis or at all;
|
•
|
changes in the supply of or demand for LNG carriers, FSRUs, FLNGs or small-scale LNG infrastructure;
|
•
|
a material decline or prolonged weakness in rates for LNG carriers, FSRUs, FLNGs or small-scale LNG infrastructure;
|
•
|
changes in the performance of the pool in which certain of our vessels operate and the performance of our joint ventures, including changes related to potential divestitures, spin-offs or new partnerships;
|
•
|
changes in trading patterns that affect the opportunities for the profitable operation of LNG carriers, FSRUs, FLNGs or small-scale LNG infrastructure;
|
•
|
changes in the supply of or demand for LNG or LNG carried by sea;
|
•
|
changes in commodity prices;
|
•
|
changes in the supply of or demand for natural gas generally or in particular regions;
|
•
|
failure of our contract counterparties, including our joint venture co-owners, to comply with their agreements with us;
|
•
|
changes in our relationships with our counterparties, including our major chartering parties;
|
•
|
challenges by authorities to the tax benefits we previously obtained under certain of our leasing agreements;
|
•
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a decline or continuing weakness in the global financial markets;
|
•
|
changes in general domestic and international political conditions, particularly where we operate;
|
•
|
changes in the availability of vessels to purchase and in the time it takes to construct new vessels;
|
•
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failures of shipyards to comply with delivery schedules or performance specifications on a timely basis or at all;
|
•
|
our ability to integrate and realize the benefits of our investments and acquisitions;
|
•
|
changes in our ability to sell vessels to Golar LNG Partners LP ("Golar Partners") or Golar Power;
|
•
|
changes in our relationship with Golar Partners, Golar Power or Avenir LNG Limited ("Avenir") and the sustainability of any distributions they may pay to us;
|
•
|
changes to rules and regulations applicable to LNG carriers, FSRUs, FLNGs or other parts of the LNG supply chain;
|
•
|
actions taken by regulatory authorities that may prohibit the access of LNG carriers, FSRUs, FLNGs or small-scale LNG vessels to various ports;
|
•
|
changes in our ability to obtain additional financing on acceptable terms or at all;
|
•
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increases in costs, including, among other things, crew wages, insurance, provisions, repairs and maintenance; and
|
•
|
other factors listed from time to time in registration statements, reports or other materials that we have filed with or furnished to the Securities and Exchange Commission, or the Commission.
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|
|||||||||||||||
|
Years Ended December 31,
|
||||||||||||||
|
2018
|
2017
|
2016
|
2015
|
2014
|
||||||||||
|
(in thousands of U.S. $, except number of shares, per common share data, fleet data and other financial data)
|
||||||||||||||
Statements of Income Data:
|
|
|
|
|
|
||||||||||
Total operating revenues
|
430,604
|
|
143,537
|
|
80,257
|
|
102,674
|
|
106,155
|
|
|||||
Vessel operating expenses
|
96,860
|
|
55,946
|
|
53,163
|
|
56,347
|
|
49,570
|
|
|||||
Voyage, charterhire and commission expenses (including collaborative arrangement)
|
105,826
|
|
61,292
|
|
47,563
|
|
69,042
|
|
27,340
|
|
|||||
Total operating expenses
|
369,607
|
|
244,094
|
|
221,364
|
|
234,604
|
|
146,488
|
|
|||||
Operating income (loss)
|
114,486
|
|
(85,457
|
)
|
(141,091
|
)
|
(36,380
|
)
|
(2,116
|
)
|
|||||
Net financial expense
|
(123,797
|
)
|
(32,788
|
)
|
(59,541
|
)
|
(174,619
|
)
|
(87,852
|
)
|
|||||
Equity in net (losses) earnings of affiliates
|
(157,636
|
)
|
(25,448
|
)
|
47,878
|
|
55,985
|
|
42,220
|
|
|||||
Net loss attributable to the stockholders of Golar LNG Limited
|
(231,428
|
)
|
(179,703
|
)
|
(186,531
|
)
|
(171,146
|
)
|
(48,017
|
)
|
|||||
Loss per common share
|
|
|
|
|
|
||||||||||
- basic
(1)
|
(2.30
|
)
|
(1.79
|
)
|
(1.99
|
)
|
(1.83
|
)
|
(0.55
|
)
|
|||||
- diluted
(1)
|
(2.30
|
)
|
(1.79
|
)
|
(1.99
|
)
|
(1.83
|
)
|
(0.55
|
)
|
|||||
Cash dividends declared and paid per common share
|
0.28
|
|
0.20
|
|
0.60
|
|
1.35
|
|
1.80
|
|
|||||
|
|
|
|
|
|
||||||||||
Balance Sheet Data (as of end of year):
|
|
|
|
|
|
||||||||||
Cash and cash equivalents
|
217,835
|
|
214,862
|
|
224,190
|
|
105,235
|
|
191,410
|
|
|||||
Restricted cash and short-term deposits
(2)
|
332,033
|
|
222,265
|
|
183,693
|
|
231,821
|
|
74,162
|
|
|||||
Non-current restricted cash
(2)
|
154,393
|
|
175,550
|
|
232,335
|
|
180,361
|
|
425
|
|
|||||
Investments in affiliates
|
571,782
|
|
703,225
|
|
648,780
|
|
541,565
|
|
746,263
|
|
|||||
Asset under development
|
20,000
|
|
1,177,489
|
|
731,993
|
|
501,022
|
|
345,205
|
|
|||||
Vessels and equipment, net
|
3,271,379
|
|
2,077,059
|
|
2,153,831
|
|
2,598,771
|
|
1,648,888
|
|
|||||
Total assets
|
4,806,595
|
|
4,764,287
|
|
4,256,911
|
|
4,269,198
|
|
3,899,742
|
|
|||||
Current portion of long-term debt and short-term debt
|
730,257
|
|
1,384,933
|
|
451,454
|
|
693,123
|
|
112,853
|
|
|||||
Long-term debt
|
1,835,102
|
|
1,025,914
|
|
1,525,744
|
|
1,342,084
|
|
1,241,133
|
|
|||||
Total equity
|
1,825,791
|
|
1,796,304
|
|
1,909,826
|
|
1,916,179
|
|
2,237,422
|
|
|||||
Common shares outstanding
(1)
(in thousands)
|
101,303
|
|
101,119
|
|
101,081
|
|
93,547
|
|
93,415
|
|
|||||
Cash Flow Data:
|
|
|
|
|
|
||||||||||
Net cash provided by (used in) operating activities
|
116,674
|
|
(35,089
|
)
|
(115,387
|
)
|
(92,458
|
)
|
4,922
|
|
|||||
Net cash (used in) provided by investing activities
|
(202,492
|
)
|
(419,895
|
)
|
3,852
|
|
(202,893
|
)
|
(1,361,275
|
)
|
|||||
Net cash provided by financing activities
|
177,402
|
|
427,443
|
|
234,336
|
|
546,770
|
|
1,470,460
|
|
|||||
Fleet Data:
|
|
|
|
|
|
||||||||||
Number of vessels at end of year
|
14
|
|
14
|
|
14
|
|
17
|
|
13
|
|
|||||
Total operating days for fleet
(3)
|
4,202
|
|
3,885
|
|
4,034
|
|
4,481
|
|
2,059
|
|
|||||
Other Financial Data:
|
|
|
|
|
|
||||||||||
Average daily time charter equivalent earnings, or TCE
(4)
(to the closest $100)
|
$
|
43,700
|
|
$
|
17,500
|
|
$
|
10,100
|
|
$
|
14,900
|
|
$
|
33,100
|
|
Average daily vessel operating costs
(5)
|
$
|
18,955
|
|
$
|
11,374
|
|
$
|
10,359
|
|
$
|
11,783
|
|
$
|
23,240
|
|
|
Years Ended December 31,
|
|
|||||||||
|
2018
|
|
2017
|
|
2016
|
|
2015
|
|
2014
|
|
|
|
(in thousands of U.S. $, except number of shares, per common share data, fleet and other financial data)
|
|
|||||||||
Total operating revenues
|
430,604
|
|
143,537
|
|
80,257
|
|
102,674
|
|
106,155
|
|
|
Less: Liquefaction services revenue
|
(127,625
|
)
|
—
|
|
—
|
|
—
|
|
—
|
|
|
Less: Vessel and other management fees
|
(24,209
|
)
|
(26,576
|
)
|
(14,225
|
)
|
(12,547
|
)
|
(10,756
|
)
|
|
Net time and voyage charter revenues
|
278,770
|
|
116,961
|
|
66,032
|
|
90,127
|
|
95,399
|
|
|
Voyage and commission expenses
(i)
|
(104,463
|
)
|
(48,933
|
)
|
(25,291
|
)
|
(23,434
|
)
|
(27,340
|
)
|
|
|
174,307
|
|
68,028
|
|
40,741
|
|
66,693
|
|
68,059
|
|
|
Calendar days less scheduled off-hire days
(ii)
|
3,987
|
|
3,885
|
|
4,034
|
|
4,481
|
|
2,059
|
|
|
Average daily TCE rate (to the closest $100)
|
43,700
|
|
17,500
|
|
10,100
|
|
14,900
|
|
33,100
|
|
|
•
|
We cannot guarantee that our agreement with BP will progress favorably.
|
•
|
If there is a delay or default by a shipyard or if a shipyard does not meet certain performance requirements, our earnings and financial condition could suffer.
|
•
|
Due to the new and sophisticated nature of FLNG conversions, we are reliant on a small number of contractors with relevant experience.
|
•
|
Due to the locations in which we operate, a number of our current and potential future projects are subject to higher political and security risks than operations in other areas of the world.
|
•
|
Golar Hilli LLC may not result in anticipated profitability or generate cash flow sufficient to justify our investment. In addition, our investment exposes us to risks that may harm our business, financial condition and operating results.
|
•
|
fail to obtain the benefits of the LTA if Perenco Cameroon S.A. ("Perenco") and Société Nationale de Hydrocarbures (‘‘SNH’’) (together the "Customer") exercises certain rights to terminate the charter upon the occurrence of specified events of default;
|
•
|
fail to obtain the benefits of the LTA if the Customer fails to make payments under the LTA because of its financial inability, disagreements with us or otherwise;
|
•
|
incur or assume unanticipated liabilities, losses or costs;
|
•
|
be required to pay damages to the Customer or suffer a reduction in the tolling fee in the event that the
Hilli Episeyo
fails to perform to certain specifications;
|
•
|
incur other significant charges, such as asset devaluation or restructuring charges; or
|
•
|
be unable to re-charter the FLNG on another long-term charter at the end of the LTA.
|
•
|
Utilization of the full capacity of Hilli Episeyo
|
•
|
Due to the new and sophisticated technology utilized by the Hilli Episeyo, the operations of the Hilli Episeyo are subject to risks that could negatively affect our business and financial condition.
|
•
|
If the letter of credit is not extended, the earnings and financial condition of Hilli Corp could suffer.
|
•
|
We cannot guarantee that the conversion of the Golar Viking and the accompanying agreement with LNG Hrvatska will progress favorably.
|
•
|
We have a substantial equity investment in our former subsidiary, Golar Partners, which since December 13, 2012, is no longer consolidated with our financial results, and our investment is subject to the risks related to Golar Partners’ business.
|
•
|
A decline in the market value of Golar Partners’ common unit price could result in breaches of our Margin Loan Facility.
|
•
|
We have a substantial equity investment in Golar Power that is subject to the risks related to Golar Power’s business.
|
•
|
We have an equity investment in Avenir that is subject to the risks related to Avenir’s business.
|
•
|
We may guarantee the indebtedness of our joint ventures and/or affiliates.
|
•
|
Golar Partners and its affiliates may compete with us.
|
•
|
We may not be able to obtain financing, to meet our obligations as they fall due or to fund our growth or our future capital expenditures, which could negatively impact our results of operations, financial condition and ability to pay dividends.
|
•
|
We are exposed to volatility in the London Interbank Offered Rate (“LIBOR”), and the derivative contracts we have entered into to hedge our exposure to fluctuations in interest rates could result in higher than market interest rates and charges against our income.
|
•
|
Reforms, including the potential phasing out of LIBOR after 2021, may adversely affect us.
|
•
|
Servicing our debt agreements substantially limits our funds available for other purposes and our operational flexibility.
|
•
|
Our ability to obtain additional financing, if necessary, for working capital, capital expenditures, acquisitions or other purposes may be impaired or such financing may not be available on favorable terms;
|
•
|
We will need a substantial portion of our cash flow to make principal and interest payments on our debt, reducing the funds that would otherwise be available for operations, future business opportunities and dividends to stockholders;
|
•
|
We may be more vulnerable to competitive pressures or a downturn in our industry or the economy in general as compared to our competitors with less debt; and;
|
•
|
Our flexibility in obtaining additional financing, pursuing other business opportunities and responding to changing business and economic conditions may be limited.
|
•
|
Our consolidated lessor variable interest entities (“VIEs”), may enter into different financing arrangements, which could affect our financial results.
|
•
|
Our financing agreements are secured by our vessels and contain operating and financial restrictions and other covenants that may restrict our business, financing activities and ability to make cash distributions to our shareholders. In addition, because of the presence of cross-default provisions in certain of our and Golar Partners’ financing agreements that cover both us and Golar Partners, a default by us or Golar Partners could lead to multiple defaults in our agreements.
|
•
|
merge into, or consolidate with, any other entity or sell, or otherwise dispose of, all or substantially all of our assets;
|
•
|
make or pay equity distributions;
|
•
|
incur additional indebtedness;
|
•
|
incur or make any capital expenditures;
|
•
|
materially amend, or terminate, any of our current charter contracts or management agreements; or
|
•
|
charter our vessels.
|
•
|
We previously entered into six UK tax leases, of which one lease for the Methane Princess remains. In the event of any adverse tax changes or a successful challenge by the UK Revenue authorities, or HMRC, with regard to the initial tax basis of these transactions or in relation to our 2010 lease restructurings, or in the event of an early termination of the Methane Princess lease, we may be required to make additional payments principally to the UK vessel lessor or Golar Partners, which could adversely affect our earnings and financial position.
|
•
|
Exposure to equity price risk in our shares could adversely affect our financial results.
|
•
|
The market for LNG transportation and regasification services is competitive and we, our Joint Ventures and our affiliates may not be able to compete successfully, which would adversely affect our earnings.
|
•
|
Our growth depends on our ability to expand relationships with existing customers and obtain new customers, for which we will face substantial competition.
|
•
|
LNG shipping and FSRU experience and quality of ship operations;
|
•
|
shipping industry relationships and reputation for customer service and safety;
|
•
|
technical ability and reputation for operation of highly specialized vessels, including FSRUs;
|
•
|
quality and experience of seafaring crew;
|
•
|
the ability to finance FSRUs and LNG carriers at competitive rates, and financial stability generally;
|
•
|
construction management experience, including, (i) relationships with shipyards and the ability to get suitable berths and (ii) the ability to obtain on-time delivery of new FSRUs and LNG carriers according to customer specifications;
|
•
|
willingness to accept operational risks pursuant to a charter, such as allowing termination of the charter for force majeure events; and
|
•
|
competitiveness of the bid in terms of overall price.
|
•
|
We operate the majority of our vessels, through the Cool Pool, in the spot/short-term charter market, which is subject to volatility. Failure by the Cool Pool to find profitable employment for these vessels could adversely affect our operations.
|
•
|
The operation of FSRUs, FLNGs and LNG carriers is inherently risky, and our vessels face a number of industry risks and events which could cause damage or loss of a vessel, loss of life or environmental consequences that could harm our reputation and ongoing business operations.
|
•
|
death or injury to persons, loss of property or environmental damage;
|
•
|
delays in the delivery of cargo;
|
•
|
loss of revenues from or termination of charter contracts;
|
•
|
governmental fines, penalties or restrictions on conducting business;
|
•
|
a government requisitioning for title or seizing our vessels (e.g. in a time of war or national emergency)
|
•
|
higher insurance rates; and
|
•
|
damage to our reputation and customer relationships generally.
|
•
|
Although we carry insurance, all risks may not be adequately insured against, and any particular claim may not be paid. Any claims covered by insurance would be subject to deductibles, and since it is possible that a large number of claims may be brought, the aggregate amount of these deductibles could be material.
|
•
|
If piracy attacks or military action results in regions in which our vessels are deployed being characterized as “war risk” zones by insurers or the Joint War Committee “war and strikes” listed areas, premiums payable for such coverage could increase significantly and such insurance coverage may be more difficult to obtain.
|
•
|
Certain of our insurance coverage is maintained through mutual protection and indemnity associations and, as a member of such associations, we may be required to make additional payments over and above budgeted premiums if member claims exceed association reserves.
|
•
|
If our vessels suffer damage, they may need to be repaired. The costs of vessel repairs are unpredictable and can be substantial. We may have to pay repair costs that our insurance policies do not cover. The loss of earnings while these vessels are being repaired, as well as the actual cost of these repairs, would decrease our results of operations.
|
•
|
If one of our vessels were involved in an accident with the potential risk of environmental contamination, the resulting media coverage could have a material adverse effect on our business, our results of operations and cash flows, weaken our financial condition and negatively affect our ability to pay distributions.
|
•
|
An increase in costs could materially and adversely affect our financial performance.
|
•
|
A shortage of qualified officers and crew could have an adverse effect on our business and financial condition.
|
•
|
We may be unable to attract and retain key management personnel in the LNG industry, which may negatively impact the effectiveness of our management and our results of operations.
|
•
|
Failure to comply with the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and other anti-bribery legislation in other jurisdictions could result in fines, criminal penalties, contract terminations and an adverse effect on our business.
|
•
|
A cyber-attack could materially disrupt our business.
|
•
|
Changing corporate laws and reporting requirements could have an adverse impact on our business.
|
•
|
We are subject to certain risks with respect to our contractual counterparties, and failure of such counterparties to meet their obligations could cause us to suffer losses or otherwise adversely affect our business.
|
•
|
We may be subject to litigation that, if not resolved in our favor and not sufficiently insured against, could have a material adverse effect on us.
|
•
|
We will have to make additional contributions to our pension schemes because it is underfunded.
|
•
|
Vessel values may fluctuate substantially and, if these values are lower at a time when we are attempting to dispose of vessels, we may incur a loss and, if these values are higher when we are attempting to acquire vessels, we may not be able to acquire vessels at attractive prices.
|
•
|
prevailing economic and market conditions in the natural gas and energy markets;
|
•
|
a substantial or extended decline in demand for LNG;
|
•
|
increases in the supply of vessel capacity;
|
•
|
the type, size and age of a vessel; and
|
•
|
the cost of newbuildings or retrofitting or modifying existing vessels, as a result of technological advances in vessel design or equipment, changes in applicable environmental or other regulations or standards, customer requirements or otherwise.
|
•
|
We are exposed to U.S. dollar and foreign currency fluctuations and devaluations that could harm our reported revenue and results of operations.
|
•
|
Further technological advancements and other innovations affecting LNG carriers could reduce the charter hire rates we are able to obtain when seeking new employment for our existing vessels, which could adversely impact the value of our assets and our results of operations and cash flows.
|
•
|
If we cannot meet our charterers' quality and compliance requirements, we may not be able to operate our vessels profitably, which could have an adverse effect on our future performance, results of operations, cash flows and financial position.
|
•
|
Our results of operations and financial condition depend on demand for LNG, LNG carriers, FSRUs and FLNGs.
|
•
|
price and availability of natural gas, crude oil and petroleum products;
|
•
|
increases in the cost of natural gas derived from LNG relative to the cost of natural gas;
|
•
|
decreases in the cost of, or increases in the demand for, conventional land-based regasification and liquefaction systems, which could occur if providers or users of regasification or liquefaction services seek greater economies of scale than FSRUs or FLNGs can provide, or if the economic, regulatory or political challenges associated with land-based activities improve;
|
•
|
further development of, or decreases in the cost of, alternative technologies for vessel-based LNG regasification or liquefaction;
|
•
|
increases in the production of natural gas in areas linked by pipelines to consuming areas, the extension of existing, or the development of new, pipeline systems in markets we may serve, or the conversion of existing non-natural gas pipelines to natural gas pipelines in those markets;
|
•
|
negative global or regional economic or political conditions, particularly in LNG-consuming regions, which could reduce energy consumption or its growth;
|
•
|
decreases in the consumption of natural gas due to increases in its price relative to other energy sources or other factors making consumption of natural gas less attractive;
|
•
|
any significant explosion, spill or other incident involving an LNG facility or carrier, conventional land-based regasification or liquefaction system, or FSRU or FLNG;
|
•
|
a significant increase in the number of LNG carriers, FSRUs or FLNGs available, whether by a reduction in the scrapping of existing vessels or the increase in construction of vessels; and
|
•
|
availability of new, alternative energy sources, including compressed natural gas.
|
•
|
Growth of the LNG market may be limited by many factors, including infrastructure constraints and community and political group resistance to new LNG infrastructure over concerns about environmental, safety and terrorism.
|
•
|
increases in interest rates or other events that may affect the availability of sufficient financing for LNG projects on commercially reasonable terms;
|
•
|
decreases in the price of LNG, which might decrease the expected returns relating to investments in LNG projects;
|
•
|
the inability of project owners or operators to obtain governmental approvals to construct or operate LNG facilities;
|
•
|
local community resistance to proposed or existing LNG facilities based on safety, environmental or security concerns;
|
•
|
any significant explosion, spill or similar incident involving an LNG production, liquefaction or regasification facility, FSRU or LNG carrier; and
|
•
|
labor or political unrest affecting existing or proposed areas of LNG production, liquefaction and regasification.
|
•
|
If the number of vessels available in the short-term or spot LNG carrier charter market continues to expand and results in reduced opportunities to secure multi-year charters for our vessels, our revenues and cash flows may become more volatile and may decline following expiration or early termination of our current charter arrangements.
|
•
|
Our vessels may call on ports located in countries that are subject to restrictions imposed by the U.S. or other governments, which could adversely affect our business. In addition, certain of our charterers may be subject to sanctions that could, if expanded, have a material adverse affect on our business.
|
•
|
Maritime claimants could arrest our vessels, which could interrupt our cash flow.
|
•
|
An economic slowdown or changes in the economic and political environment in the Asia Pacific region could have a material adverse effect on our business, financial condition and results of operations.
|
•
|
Political instability, terrorist attacks and international hostilities can affect the seaborne transportation industry, which could adversely affect our business.
|
•
|
The results of the U.K.’s referendum on withdrawal from the European Union may have a negative effect on global economic conditions, financial markets and our business.
|
•
|
Regulations relating to ballast water discharge coming into effect during September 2019 may adversely affect our revenues and profitability.
|
•
|
Our operations are subject to various international, federal, state and local environmental, climate change and greenhouse gas emissions laws and regulations. Compliance with these obligations, and any future changes to environmental legislation and regulation applicable to international and national maritime trade, may have an adverse effect on our business.
|
•
|
Climate change and greenhouse gas restrictions may adversely impact our operations and markets.
|
•
|
Compliance with safety and other vessel requirements imposed by classification societies may be very costly and may adversely affect our business.
|
•
|
We are a holding company, and our ability to pay dividends will be limited by the value of investments we currently hold and by the distribution of funds from our subsidiaries and affiliates.
|
•
|
If we fail to meet the expectations of analysts or investors, our stock price could decline substantially.
|
•
|
prevailing economic and market conditions in the natural gas and energy markets;
|
•
|
negative global or regional economic or political conditions, particularly in LNG-consuming regions, which could reduce energy consumption or its growth;
|
•
|
declines in demand for LNG or the services of LNG carriers, FSRUs or FLNGs;
|
•
|
increases in the supply of LNG carrier capacity operating in the spot market or the supply of FSRUs or FLNGs;
|
•
|
marine disasters; war, piracy or terrorism; environmental accidents; or inclement weather conditions;
|
•
|
mechanical failures or accidents involving any of our vessels; and
|
•
|
dry-dock scheduling and capital expenditures.
|
•
|
Our common share price may be highly volatile and future sales of our common shares could cause the market price of our common shares to decline.
|
•
|
We may issue additional common shares or other equity securities without our shareholders’ approval, which would dilute their ownership interests and may depress the market price of our common shares.
|
•
|
our existing shareholders’ proportionate ownership interest in us will decrease;
|
•
|
the amount of cash available for dividends payable on our common shares may decrease;
|
•
|
the relative voting strength of each previously outstanding common share may be diminished; and
|
•
|
the market price of our common shares may decline.
|
•
|
Because we are a Bermuda corporation, our shareholders may have less recourse against us or our directors than shareholders of a U.S. company have against the directors of that U.S. Company.
|
•
|
Because our offices and most of our assets are outside the United States, our shareholders may not be able to bring a suit against us, or enforce a judgment obtained against us in the United States.
|
•
|
A change in tax laws in any country in which we operate could adversely affect us
|
•
|
United States tax authorities could treat us as a “passive foreign investment company”, which could have adverse United States federal income tax consequences to U.S. shareholders.
|
•
|
We may have to pay tax on United States source income, which would reduce our earnings.
|
•
|
We may become subject to taxation in Bermuda which would negatively affect our results.
|
•
|
As a Bermuda exempted company incorporated under Bermuda law with subsidiaries in another offshore jurisdiction, our operations may be subject to economic substance requirements.
|
•
|
Bermuda’s continued presence on a list of non-cooperative jurisdictions by the European Union could harm our business.
|
a.
|
Golar Partners
|
b.
|
Golar Power
|
c.
|
Avenir LNG Limited (“Avenir”)
|
d.
|
OneLNG
|
•
|
In May 2016, we sold our equity interests in the company ("Golar LNG NB13 Corporation") that is the disponent owner of the
Golar Tundra
and the related time charter for $330 million less the net lease obligations under the related lease agreement with China Merchant Bank Financial Leasing, or CMBL, plus other purchase price adjustments. At the time of sale, the
Golar Tundra
was subject to a time charter with West Africa Gas Limited, or WAGL. Concurrent with the closing of the sale of Tundra Corp, we entered into an agreement with Golar Partners (as amended, the "Tundra Letter Agreement") which provided, among others, that in the event the
Golar Tundra
had not commenced service under the
|
•
|
On July 12, 2018 (the "Closing Date"), we and the affiliates of Keppel and Black & Veatch Corporation, completed the Hilli Disposal to Golar Partners of common units in our consolidated subsidiary Hilli LLC (the "Hilli Common Units"), which owns Hilli Corp, the disponent owner of
Hilli Episeyo
(the "
Hilli
"). The selling price for the Hilli Disposal was $658 million, less 50% of our net lease obligations under the Hilli Facility on the Closing Date and working capital adjustments. On August 15, 2017, concurrently with our entry into the purchase and sale agreement for the Hilli Disposal (the "Hilli Sale Agreement"), we received a deposit from Golar Partners, which, together with accrued interest, equaled $71.9 million on the Closing Date (the "Hilli deposit"), combined with Golar Partners’ payment for its exercise of the Tundra Put Right, which, together with accrued interest, equaled $110.1 million on the Closing Date (the "Deferred Purchase Price"). We applied the Hilli Deposit, the Deferred Purchase Price and interest accrued thereon as payment for the Hilli Disposal. Please see note 6 "Disposal of Long Lived Assets" of our consolidated financial statements included herein.
|
•
|
In connection with the formation of the Golar Power joint venture, we contributed to it our former subsidiaries that: (i) owned the
Golar Penguin
and the
Golar Celsius;
(ii) held the FSRU newbuilding contract with Samsung, which was subsequently delivered and named
Golar Nanook
; and (iii) held the rights to participate in the Sergipe Project. Subsequently in July 2016, we received net proceeds of $113 million from our sale to Stonepeak of 50% of the ordinary share capital of Golar Power. Accordingly, effective from the date of the sale to Stonepeak, we deconsolidated the results and net assets of Golar Power.
|
•
|
Operate a high-quality, first class LNG carrier fleet:
We own and operate a fleet of high quality LNG carriers with an average age of 6.4 years. Seven of our ten carriers were delivered within the last five years and utilize fuel efficient propulsion and low boil-off technology. Our vessels are compatible with most LNG loading and receiving terminals worldwide. We also manage carriers on behalf of our affiliate companies, Golar Partners and Golar Power. A potential separation or spin-off of our LNG shipping fleet is under consideration. This may reduce volatility in our future cash flows and better position our long-term contracting business for infrastructure investors.
|
•
|
Maintain leadership in FSRUs and embed this into future power projects through our affiliate, Golar Power:
We are one of the industry leaders in the development, delivery and operation of both newbuild and converted FSRUs based on a strong record of successful project delivery and highly reliable vessel operation. Our joint venture, Golar Power, is
|
•
|
Capture new FLNG opportunities using our unique skills as a developer, owner and operator of FLNG vessels:
Our FLNG investment proposition is built on a sound technical and commercial offering, derived from structurally lower unit capital costs and short lead times. FLNG allows smaller resource holders to enter the LNG business and occupy a legitimate space alongside the largest resource holders, major oil companies and world-scale LNG buyers. For established LNG industry participants, the prospect of our low-cost, low-risk, fast-track FLNG solution provides a compelling alternative to traditional land-based projects.
|
•
|
Leverage our affiliation with Golar Partners to monetize long-term midstream contracts:
We believe our affiliation with Golar Partners positions us to pursue a broader array of opportunities. Since the Partnership’s IPO in April 2011, we have sold six vessels to Golar Partners in exchange for consideration of $1.9 billion. In addition to this, we closed the sale of an interest in the
Hilli Episeyo
.
We invested a substantial portion of the sale proceeds in newbuild and asset conversion projects that we expect will generate attractive returns over the coming years. As of
March 15, 2019
, we have a 32.0% interest (including our 2% general partner interest) in Golar Partners and hold 100% of its IDRs.
|
•
|
Vessel operations
- We operate and subsequently charter out vessels on fixed terms to customers. We also provide technical vessel management services for our fleet as well as the fleets of Golar Partners and Golar Power.
|
•
|
FLNG
- In 2014, we ordered our first FLNG based on the conversion of our existing LNG carrier, the
Hilli.
The
Hilli
FLNG conversion was completed and the vessel was accepted by the customer under the LTA. In February 2019 we entered into an agreement with BP for the charter of a FLNG, which will be converted from our existing LNG carrier, the
Gimi
, for a 20-year period expected to commence production in 2022. The
Gimi
was relocated from layup to Keppel Shipyard to proceed with the conversion.
|
•
|
Power
- In July 2016, we entered into certain agreements forming a 50/50 joint venture, Golar Power, with private equity firm Stonepeak. Golar Power offers integrated LNG based downstream solutions, through the ownership and operation of a FSRU and associated terminal and power generation infrastructure.
|
Vessel Name
|
|
Year of
Delivery
|
|
Capacity Cubic Meters
|
|
Flag
|
|
Type
|
|
Charterer/ Pool Arrangement
|
|
Current Charter Expiration
|
|
Charter Extension Options
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gimi
(1) (5)
|
|
1976
|
|
125,000
|
|
Marshall Islands
|
|
Moss
|
|
n/a
|
|
n/a
|
|
n/a
|
Gandria
(1)
|
|
1977
|
|
126,000
|
|
Marshall Islands
|
|
Moss
|
|
n/a
|
|
n/a
|
|
n/a
|
Golar Arctic
(2)
|
|
2003
|
|
140,000
|
|
Marshall Islands
|
|
Membrane
|
|
n/a
|
|
n/a
|
|
n/a
|
Golar Viking
(4)
|
|
2005
|
|
140,000
|
|
Marshall Islands
|
|
Membrane
|
|
A major oil and gas company
|
|
2019
|
|
n/a
|
Golar Seal
(3)
|
|
2013
|
|
160,000
|
|
Marshall Islands
|
|
Membrane
|
|
Cool Pool
|
|
n/a
|
|
n/a
|
Golar Crystal
(3)
|
|
2014
|
|
160,000
|
|
Marshall Islands
|
|
Membrane
|
|
Cool Pool
|
|
n/a
|
|
n/a
|
Golar Bear
(3)
|
|
2014
|
|
160,000
|
|
Marshall Islands
|
|
Membrane
|
|
Cool Pool
|
|
n/a
|
|
n/a
|
Golar Glacier
|
|
2014
|
|
162,000
|
|
Marshall Islands
|
|
Membrane
|
|
A major Japanese trading company
|
|
2019
|
|
n/a
|
Golar Frost
(3)
|
|
2014
|
|
160,000
|
|
Marshall Islands
|
|
Membrane
|
|
Cool Pool
|
|
n/a
|
|
n/a
|
Golar Snow
(3)
|
|
2015
|
|
160,000
|
|
Marshall Islands
|
|
Membrane
|
|
Cool Pool
|
|
n/a
|
|
n/a
|
Golar Ice
(3)
|
|
2015
|
|
160,000
|
|
Marshall Islands
|
|
Membrane
|
|
Cool Pool
|
|
n/a
|
|
n/a
|
Golar Kelvin
(3)
|
|
2015
|
|
162,000
|
|
Marshall Islands
|
|
Membrane
|
|
Cool Pool
|
|
n/a
|
|
n/a
|
Golar Tundra
(3)
|
|
2015
|
|
170,000
|
|
Marshall Islands
|
|
FSRU Membrane
|
|
Cool Pool
|
|
n/a
|
|
n/a
|
(1)
|
The
Gandria
is currently in lay-up and earmarked for conversion into a FLNG vessel.
The
Gimi
entered Keppel's shipyard in Singapore in early 2019 to commence her conversion into a FLNG. The conversion agreements for the
Gimi
and the
Gandria
are both subject to certain payments and lodging of a full Notice to Proceed.
|
(2)
|
Golar Arctic
is currently not assigned to a charter.
|
(3)
|
As of
March 15, 2019
, we have eight vessels operating in the Cool Pool. See "Cool Pool" below.
|
(4)
|
Golar Viking
is currently serving a short-term contract, due to expire in December 2019. Golar has also entered into binding agreements with a Croatian project developer, LNG Hrvatska d.o.o., to convert the 2005 built
Golar Viking
into a FSRU, sell the converted vessel, and then operate and maintain the FSRU for a minimum of 10 years. Conversion capital expenditure will be predominantly funded by stage payments under the agreements. Commencement of this project is subject to certain conditions precedent, including confirmation of project funding and receipt of a Notice to Proceed from LNG Hrvatska d.o.o.
|
(5)
|
In February 2019, we entered into a 20 year Lease and Operate Agreement with BP for the charter of a FLNG unit, the
Gimi
, to service the Greater Tortue Ahmeyim project. These and other agreements are subject to certain conditions precedent which if not satisfied, or waived by the customer, may result in termination prior to or after employment commences.
|
Vessel Name
|
|
Year of
Delivery
|
|
Capacity
|
|
Flag
|
|
Type
|
|
Charterer/ Pool Arrangement
|
|
Current Charter Expiration
|
|
Charter Extension Options
|
Hilli Episeyo
(1)
|
|
2017
|
|
2.4 mtpa
|
|
Marshall Islands
|
|
FLNG Moss
|
|
Perenco/SNH
|
|
2026
|
|
n/a
|
(1)
|
The
Hilli Episeyo
was converted into a FLNG from a LNG carrier which was originally constructed in 1975. She commenced her operations under the LTA with the Customer in May 2018. The existing LTA is for two of the four liquefaction trains and provides the Customer the option to increase liquefaction production.
|
•
|
injury to, destruction or loss of, or loss of use of, natural resource and the costs of assessment thereof;
|
•
|
injury to, or economic losses resulting from, the destruction of real and personal property;
|
•
|
net loss of taxes, royalties, rents, fees or net profit revenues resulting from injury, destruction or loss of real or personal property, or natural resources;
|
•
|
loss of subsistence use of natural resources that are injured, destroyed or lost;
|
•
|
lost profits or impairment of earning capacity due to injury, destruction or loss of real or personal property or natural resources; and
|
•
|
net cost of increased or additional public services necessitated by removal activities following a discharge of oil, such as protection from fire, safety or health hazards.
|
•
|
Conversion of our vessels to FLNG.
The
Gimi
was delivered to Keppel's shipyard in early 2019 to commence her conversion into a FLNG. FLNG conversions require highly specialized contractors and are subject to risk of delay or default by shipyards. In the event the shipyards do not perform under these agreements and we are unable to enforce certain refund guarantees with third party banks, we may lose part or all of our investment.
|
•
|
Utilization of the Hilli's full capacity.
The
Hilli Episeyo
is the world’s first converted FLNG vessel. FLNG vessels are complex and their operations are technically challenging and subject to mechanical risks. Accordingly, delays in contracting Train 3 and Train 4 capacity could adversely affect our financial performance.
|
•
|
We, or our consolidated entities, may enter into different financing arrangements.
Our current financing arrangements may not be representative of the arrangements we will enter into in the future. For example, we may amend our existing credit facilities or enter into other financing arrangements, which may be more expensive. In addition, by virtue of the sale and leaseback transactions we have entered into with certain lessor VIEs, where we are deemed to be the primary beneficiary of the VIEs, we are required by US GAAP to consolidate these VIEs into our results. Although consolidated into our results, we have no control over the funding arrangements negotiated by these lessor VIEs such as interest rates, maturity and repayment profiles. As of December 31, 2018, we consolidated lessor VIEs in connection with the lease financing transactions for eight of our vessels. Refer to note 5 "Variable Interest Entities" and note 22 "Debt" of our consolidated financial statements included herein.
|
•
|
Our results are affected by fluctuations in the fair value of our derivative instruments
. The change in fair value of our derivative instruments is included in our net income. These changes may fluctuate significantly as interest rates, the price of our common shares or the price of commodities fluctuate. This includes changes in the fair value of the oil derivative instrument. Our Total Return Swap has a credit arrangement, whereby we are required to provide cash collateral on the initial acquisition price and to subsequently post additional cash collateral that corresponds to any further unrealized loss. Refer to note 27 “Financial Instruments” in our Consolidated Financial Statements.
|
•
|
Our results will be dependent in part on the performance of the Cool Pool.
We, along with GasLog and Golar Power, are in a Cool Pool arrangement to market our vessels which are currently operating in the LNG shipping spot market. As of
March 15, 2019
, we had contributed eight (2017: eight) of the 16 vessels to the pool. Each of the vessel owners continues to be responsible for the manning and the technical management of its respective vessels. Our share of the net pool revenues will be dependent upon the performance of the Pool Manager in securing employment and negotiating rates for all of the pool vessels.
|
•
|
Our investment in joint ventures and affiliates may not result in anticipated profitability or generate cash flow sufficient to justify our investment
.
In November 2018, Golar Partners announced a distribution cut which failed to translate into an improved share price. Given the failure of the share price to recover and the sustained period of the suppressed share price, we recorded an other than temporary impairment charge of
$149.4 million
.
|
•
|
Interest costs of $43.9 million, $72.4 million and $50.3 million were capitalized in
2018
,
2017
and
2016
, respectively, in relation to the FLNG conversion of the
Hilli,
the investment in our affiliate, Golar Power and our newbuilding under construction;
|
•
|
The realized and unrealized gains and losses on mark-to-market adjustments for our derivative instruments, excluding the
Hilli
embedded derivative, of $30.5 million loss, $20.7 million gain and $16.5 million gain in
2018
,
2017
and
2016
, respectively;
|
•
|
Mark-to-market loss of $16.8 million and gain of $15.1 million in
2018
and
2017
, respectively, on the embedded derivative in relation to the
Hilli
LTA.
|
•
|
In September 2014, the
Hilli
was delivered to Keppel, in Singapore for commencement of her FLNG conversion. The
Hilli
completed her conversion in October 2017 and subsequently underwent commissioning. In 2018, she completed commissioning and was accepted under the LTA with the Customer and is now in full commercial operation.
|
•
|
Other operating income for the year ended December 31,
2018
includes $50.7 million recovered from West Africa Gas Limited in relation to amounts due under the charter agreement. In addition, subsequent to the decision to wind down OneLNG, we have written off $12.7 million of the trading balance with OneLNG as we deem it to be no longer recoverable.
|
•
|
Other-than-temporary impairment on our investment in Golar Partners amounting to $149.4 million was recognized for the year ended December 31, 2018 in the line item Equity in net (losses) earnings of affiliates;
|
•
|
Charterhire expenses of $
nil
,
$17.4 million
and
$28.4 million
for the year ended December 31,
2018
,
2017
and
2016
, respectively, arising from the charter-back of the
Golar Grand
from Golar Partners, under an agreement executed at the time of the disposal to Golar Partners. On November 1, 2017, the
Golar Grand
arrangement concluded;
|
•
|
Our vessels were affected by commercial waiting time;
|
•
|
Share options expense on options granted during
2018
,
2017
and
2016
;
|
•
|
Project expenses such as those relating to FLNG project development;
|
•
|
Deconsolidation of Golar Power in July 2016, which resulted in the recognition of a loss of $8.5 million on loss of control; and
|
•
|
Impairment loss arising on the loan and associated interest receivables from the Douglas Channel Project consortium. Given the announcement of a negative Final Investment Decision, we reassessed the recoverability of the loan and accrued interest receivables from the Douglas Channel LNG Assets Partnership, or DCLAP, and concluded that DCLAP would not have the means to satisfy its obligations under the loan. Accordingly, we recognized an impairment charge of $7.6 million in 2016.
|
|
December 31,
|
|
|
|||||
(in thousands of $, except average daily TCE)
|
2018
|
2017
|
Change
|
% Change
|
||||
|
|
|
|
|
||||
Total operating revenues
|
302,979
|
|
143,537
|
|
159,442
|
|
111
|
%
|
Vessel operating expenses
|
(70,543
|
)
|
(55,944
|
)
|
(14,599
|
)
|
26
|
%
|
Voyage, charterhire and commission expenses (including expenses from collaborative arrangement)
|
(104,463
|
)
|
(61,171
|
)
|
(43,292
|
)
|
71
|
%
|
Administrative expenses
(2)
|
(51,716
|
)
|
(36,296
|
)
|
(15,420
|
)
|
42
|
%
|
Project development expenses
(2)
|
(5,165
|
)
|
(9,796
|
)
|
4,631
|
|
(47
|
)%
|
Depreciation and amortization
|
(65,496
|
)
|
(76,522
|
)
|
11,026
|
|
(14
|
)%
|
Other operating gains
|
50,740
|
|
—
|
|
50,740
|
|
100
|
%
|
Operating income (loss)
|
56,336
|
|
(96,192
|
)
|
152,528
|
|
(159
|
)%
|
|
|
|
|
|
||||
Equity in net (losses) earnings of affiliates
|
(138,677
|
)
|
1,503
|
|
(140,180
|
)
|
(9,327
|
)%
|
|
|
|
|
|
||||
Other Financial Data:
|
|
|
|
|
||||
|
|
|
|
|
||||
Average Daily TCE
(1)
(to the closest $100)
|
43,700
|
|
17,500
|
|
26,200
|
|
150
|
%
|
Calendar days less scheduled off-hire days
|
3,987
|
|
3,885
|
|
102
|
|
3
|
%
|
•
|
$144.8 million as a result of improved utilization and daily hire rates, including repositioning fees, from our vessels operating within the Cool Pool during the year ended December 31, 2018 compared to the same period in 2017; and
|
•
|
$16.0 million as a result of the
Golar Glacier
commencing her new 12 month charter in February 2018.
|
•
|
$6.2 million in operating costs in relation to our vessels operating within the Cool Pool; and
|
•
|
$7.8 million of reactivation and operating costs of the
Golar Viking
as she was taken out of lay-up in January 2018.
|
•
|
$52.2 million of voyage expenses that arose from the increased utilization of our vessels participating within the Cool Pool, for which we receive credit under the Cool Pool arrangement (further described in note 28(d) "Related Parties" of our consolidated financial statements included herein); and
|
•
|
$3.2 million due to the
Golar Viking
being taken out of lay-up.
|
•
|
$7.8 million in
Golar Tundra
depreciation as a result of a $9.7 million catch-up charge recognized upon the vessel ceasing to be classified as held-for-sale in March 2017; and
|
•
|
$3.3 million in the
Gandria
depreciation as she reached the end of her useful economic life at
December 31, 2017
, and accordingly, no further depreciation expense was recognized in 2018.
|
|
December 31,
|
|
|
|||||
(in thousands of $)
|
2018
|
2017
|
Change
|
% Change
|
||||
Total operating revenues
|
127,625
|
|
—
|
|
127,625
|
|
100
|
%
|
|
|
|
|
|
||||
Vessel operating expenses
|
(26,317
|
)
|
(2
|
)
|
(26,315
|
)
|
1,315,750
|
%
|
Voyage expenses
|
(1,363
|
)
|
(121
|
)
|
(1,242
|
)
|
1,026
|
%
|
Administrative expenses
(1)
|
175
|
|
(1,736
|
)
|
1,911
|
|
(110
|
)%
|
Project development expenses
(1)
|
(16,526
|
)
|
(2,506
|
)
|
(14,020
|
)
|
559
|
%
|
Depreciation and amortization
|
(28,193
|
)
|
—
|
|
(28,193
|
)
|
100
|
%
|
Other operating gains
|
2,749
|
|
15,100
|
|
(12,351
|
)
|
(82
|
)%
|
Operating gain
|
58,150
|
|
10,735
|
|
47,415
|
|
442
|
%
|
|
|
|
|
|
||||
Equity in net losses of affiliates
|
(2,047
|
)
|
(8,153
|
)
|
6,106
|
|
(75
|
)%
|
|
December 31,
|
|
|
|||||
(in thousands of $)
|
2018
|
2017
|
Change
|
% Change
|
||||
|
|
|
|
|
||||
Equity in net (losses) of Golar Power
|
(16,913
|
)
|
(18,798
|
)
|
1,885
|
|
(10
|
)%
|
|
December 31,
|
|
|
|||||
(in thousands of $)
|
2018
|
2017
|
Change
|
% Change
|
||||
|
|
|
|
|
||||
Total other non-operating expense
|
—
|
|
(81
|
)
|
81
|
|
(100
|
)%
|
Interest income
|
10,133
|
|
5,890
|
|
4,243
|
|
72
|
%
|
Interest expense
|
(101,908
|
)
|
(59,305
|
)
|
(42,603
|
)
|
72
|
%
|
(Losses) gains on derivative instruments
|
(30,541
|
)
|
20,696
|
|
(51,237
|
)
|
(248
|
)%
|
Other financial items, net
|
(1,481
|
)
|
(69
|
)
|
(1,412
|
)
|
2,046
|
%
|
Income taxes
|
(1,267
|
)
|
(1,505
|
)
|
238
|
|
(16
|
)%
|
Net income attributable to non-controlling interests
|
(63,214
|
)
|
(34,424
|
)
|
(28,790
|
)
|
84
|
%
|
•
|
$22.7 million increase in interest expense arising on the loan facilities of our consolidated lessor VIEs (refer to note 5 "Variable Interest Entities ("VIE")" of our consolidated financial statements included herein), in particular on the
Hilli
post-delivery sale and leaseback arrangement entered into during June 2018;
|
•
|
$21.7 million lower capitalized interest on borrowing costs in relation to our investment in the
Hilli
FLNG conversion prior to acceptance of the vessel;
|
•
|
$7.0 million increase in amortization of deferred financing costs in relation to the
Hilli
facility; and
|
•
|
$1.4 million increase in interest expense in relation to the $402.5 million convertible bond issued in February 2017, resulting in a full year of interest incurred in 2018.
|
•
|
$5.9 million in interest expense relating to the
Hilli
disposal;
|
•
|
$5.0 million higher capitalized interest on borrowing costs in relation to our investment in Golar Power.
|
|
December 31,
|
|
|
|||||
(in thousands of $, except average daily TCE)
|
2017
|
2016
|
Change
|
% Change
|
||||
|
|
|
|
|
||||
Total operating revenues
|
143,537
|
|
80,257
|
|
63,280
|
|
79
|
%
|
Vessel operating expenses
|
(55,944
|
)
|
(53,163
|
)
|
(2,781
|
)
|
5
|
%
|
Voyage, charterhire and commission expenses (including expenses from collaborative arrangement)
|
(61,171
|
)
|
(47,563
|
)
|
(13,608
|
)
|
29
|
%
|
Administrative expenses
(2)
|
(36,296
|
)
|
(37,302
|
)
|
1,006
|
|
(3
|
)%
|
Project development expenses
(2)
|
(9,796
|
)
|
(5,082
|
)
|
(4,714
|
)
|
93
|
%
|
Depreciation and amortization
|
(76,522
|
)
|
(72,972
|
)
|
(3,550
|
)
|
5
|
%
|
Impairment of non-current assets
|
—
|
|
(1,706
|
)
|
1,706
|
|
(100
|
)%
|
Other operating gains - LNG trading
|
—
|
|
16
|
|
(16
|
)
|
(100
|
)%
|
Operating loss
|
(96,192
|
)
|
(137,515
|
)
|
41,323
|
|
(30
|
)%
|
|
|
|
|
|
||||
Equity in net earnings of affiliates
|
1,503
|
|
37,344
|
|
(35,841
|
)
|
(96
|
)%
|
|
|
|
|
|
||||
Other Financial Data:
|
|
|
|
|
||||
Average Daily TCE
(1)
(to the closest $100)
|
17,500
|
|
10,100
|
|
7,400
|
|
73
|
%
|
Calendar days less scheduled off-hire days
|
3,885
|
|
4,034
|
|
(149
|
)
|
(4
|
)%
|
•
|
$54.7 million as a result of improved utilization and daily hire rates, including repositioning fees, from our vessels participating in the Cool Pool for the year ended December 31, 2017 compared to the same period in 2016;
|
•
|
$1.3 million in revenue from the
Golar Arctic
which was fully utilized for the year ended December 31, 2017 compared to the same period in 2016 when she was mostly off-hire during the first quarter in preparation for her charter on March 23, 2016 with an energy and logistics company; and
|
•
|
$12.4 million in management fee income, from $14.2 million in 2016 to $26.6 million in 2017, from the provision of services to Golar Partners, Golar Power and OneLNG under our management and administrative services and ship management agreements. The increase is primarily a result of the services provided to Golar Power and OneLNG throughout the year ended December 31, 2017, whereas, services were only provided to Golar Power and OneLNG for a portion of 2016, subsequent to their formation in July 2016.
|
•
|
$2.3 million in relation to the
Gandria
, mainly due to the settlement of its lay-up fees;
|
•
|
$1.8 million in operating costs in relation to our vessels operating in the Cool Pool; and
|
•
|
$3.0 million related to bringing in-house our technical operations and the related change in classification of fleet management related administrative costs from administrative expenses to vessel operating costs.
|
•
|
a decrease of $9.6 million in charterhire expense relating to the charter back of the
Golar Grand
from Golar Partners. The decrease is due to: (i)
Golar Grand’s
drydocking from February to April 2017, which resulted in no charterhire payable to Golar Partners and (ii) on November 1, 2017, the
Golar Grand
arrangement concluded;
|
•
|
a decrease of $2.0 million from the
Golar Penguin
and the
Golar Celsius
following the deconsolidation of Golar Power, and thus its fleet, from July 2016; and
|
•
|
a decrease of $0.6 million from
Golar Arctic
as she incurred significant voyage costs prior to commencement of her charter in 2016 with an energy and logistics company.
|
•
|
$5.7 million from the
Golar Penguin
and the
Golar Celsius
following the deconsolidation of Golar Power, and thus its fleet, from July 2016; and
|
•
|
$5.2 million from the
Gimi
as she reached the end of her useful life at December 31, 2016.
|
|
December 31,
|
|
|
|||||
(in thousands of $)
|
2017
|
2016
|
Change
|
% Change
|
||||
Share of net earnings in Golar Partners
|
17,702
|
|
37,716
|
|
(20,014
|
)
|
(53
|
)%
|
Loss on disposal of investments in Golar Partners
|
(16,992
|
)
|
—
|
|
(16,992
|
)
|
100
|
%
|
Share of net earnings (loss) in other affiliates
|
793
|
|
(372
|
)
|
1,165
|
|
(313
|
)%
|
|
1,503
|
|
37,344
|
|
(35,841
|
)
|
(96
|
)%
|
|
December 31,
|
|
|
|||||
(in thousands of $)
|
2017
|
2016
|
Change
|
% Change
|
||||
Total operating expenses
|
(4,365
|
)
|
(3,576
|
)
|
(789
|
)
|
22
|
%
|
Unrealized gain on oil derivative instrument
|
15,100
|
|
—
|
|
15,100
|
|
100
|
%
|
Operating gain (loss)
|
10,735
|
|
(3,576
|
)
|
14,311
|
|
(400
|
)%
|
|
|
|
|
|
||||
Equity in net loss of affiliates
|
(8,153
|
)
|
—
|
|
(8,153
|
)
|
100
|
%
|
|
December 31,
|
|
|
|||||
(in thousands of $)
|
2017
|
2016
|
Change
|
% Change
|
||||
|
|
|
|
|
||||
Equity in net (losses) earnings of affiliates
|
(18,798
|
)
|
10,534
|
|
(29,332
|
)
|
(278
|
)%
|
|
December 31,
|
|
|
|||||
(in thousands of $)
|
2017
|
2016
|
Change
|
% Change
|
||||
|
|
|
|
|
||||
Total other non-operating expense
|
(81
|
)
|
(8,615
|
)
|
8,534
|
|
(99
|
)%
|
Interest income
|
5,890
|
|
2,969
|
|
2,921
|
|
98
|
%
|
Interest expense
|
(59,305
|
)
|
(71,201
|
)
|
11,896
|
|
(17
|
)%
|
Gains on derivative instruments
|
20,696
|
|
16,491
|
|
4,205
|
|
25
|
%
|
Other financial items, net
|
(69
|
)
|
(7,800
|
)
|
7,731
|
|
(99
|
)%
|
Income taxes
|
(1,505
|
)
|
589
|
|
(2,094
|
)
|
(356
|
)%
|
Net income attributable to non-controlling interests
|
(34,424
|
)
|
(25,751
|
)
|
(8,673
|
)
|
34
|
%
|
•
|
$8.2 million in interest expense in relation to the $402.5 million convertible bonds issued in February 2017, which replaced the old $250 million convertible bonds that were repaid in early March 2017;
|
•
|
$6.0 million in interest expense from the $150.0 million margin loan that we entered into in March 2017; and
|
•
|
$13.1 million in interest expense from the additional $275 million drawn down on the
Hilli
pre-delivery facility during 2017.
|
•
|
receipt of $
9.2 million
in February 2019, in respect of cash distributions for the quarter ended
December 31, 2018
, from Golar Partners in relation to our interests in its common and general partner units held at the relevant record date, albeit $1.7 million was used to satisfy interest payments on the Margin Loan Facility as a result of 21,226,586 of Golar Partners common units held by us being pledged as security for the obligations under the facility.
|
•
|
payments of $15.1 million, in cash distributions to our shareholders in January 2019 in respect of the quarter ended September 30, 2018;
|
•
|
payment of $5.0 million in March 2019 to the non-controlling shareholders in Hilli LLC in relation to the Hilli Disposal, representing a working capital adjustment to the net purchase price received from Golar Partners;
|
•
|
payment of $13.0 million to an entity of CCBFL, in January 2019, for the extension of the put-option under the finance lease for the
Golar Seal
; and
|
•
|
payment of $19.3 million of scheduled loan and interest repayments.
|
|
Year ended December 31,
|
|||||||
|
2018
|
|
2017
|
|
2016
|
|||
(in millions of $)
|
|
|
|
|
|
|||
Net cash provided by (used in) operating activities
|
116.7
|
|
|
(35.1
|
)
|
|
(115.4
|
)
|
Net cash (used in) provided by investing activities
|
(202.5
|
)
|
|
(419.9
|
)
|
|
3.9
|
|
Net cash provided by financing activities
|
177.4
|
|
|
427.4
|
|
|
234.3
|
|
Net increase (decrease) in cash, cash equivalents and restricted cash
|
91.6
|
|
|
(27.5
|
)
|
|
122.8
|
|
Cash, cash equivalents and restricted cash at beginning of year
|
612.7
|
|
|
640.2
|
|
|
517.4
|
|
Cash, cash equivalents and restricted cash at end of year
|
704.3
|
|
|
612.7
|
|
|
640.2
|
|
•
|
higher contributions recognized from our participation in the Cool Pool as a result of improved utilization and daily hire rates from the Cool Pool vessels;
|
•
|
lower charterhire payments as a result of the expiry of the charter-back arrangement of the
Golar Grand
from Golar Partners in November 2017;
|
•
|
$50.7 million
in cash receipts in connection with arbitration proceedings with a former charterer of the
Golar Tundra
; and
|
•
|
the improvement on the general timing of working capital in 2018 compared to the same period in 2017.
|
•
|
the continued tightening of the LNG shipping market, which resulted in an overall increase in charter rates and higher utilization levels of our vessels trading in the Cool Pool;
|
•
|
lower charterhire payments relating to the charter-back of the
Golar Grand
from Golar Partners as a result of her drydocking in 2017 in addition to the charter-back arrangement ending on November 1, 2017; and
|
•
|
the improvement on the general timing of working capital in 2017 compared to the same period in 2016.
|
•
|
the addition of
$116.7 million
to asset under development relating to payments made in respect of the conversion of the
Hilli
into a FLNG;
|
•
|
additions of
$95.5 million
to investments in affiliates, which relates principally to capital contributions made to Golar Power of $55.0 million and our investment in Avenir of $24.8 million; and
|
•
|
additions to vessels and equipment of
$33.1 million
.
|
•
|
receipt of
$9.7 million
from Golar Partners in relation to the Hilli Disposal; and
|
•
|
dividends received from Golar Partners. Following the adoption of amendments in ASC 230, we have adopted the cumulative earnings approach in relation to the classification of dividends received from our equity method investees in our statements of cash flows. Accordingly, although $49.0 million in dividends was received from Golar Partners in 2018, of this,
$33.2 million
has been classified in investing activities with the balance in operating activities.
|
•
|
the addition of
$390.6 million
to asset under development relating to payments made in respect of the conversion of the
Hilli
into a FLNG; and
|
•
|
additional capital contributions of $111.0 million in respect of our investment in Golar Power.
|
•
|
a deposit received of
$70.0 million
from Golar Partners in respect of the Hilli Sale Agreement in August 2017; and
|
•
|
dividends received from Golar Partners. Following the adoption of amendments in ASC 230, we have adopted the cumulative earnings approach in relation to the classification of dividends received from our equity method investees in our statements of cash flows. Accordingly, although $52.7 million in dividends was received from Golar Partners in 2017, which is comparable to that which was received in the same period in 2016, of this,
$25.1 million
has been classified in investing activities with the balance in operating activities.
|
•
|
$115.0 million further drawdown on the pre-delivery financing in relation to the conversion of the
Hilli
into a FLNG;
|
•
|
$960.0 million drawdown on the post-acceptance
Hilli
sale and leaseback financing in relation to the Hilli Facility; and
|
•
|
$101.0 million of debt proceeds drawn down by the lessor VIE, which owns the
Golar Crystal
, upon refinancing of its debt into a long-term loan facility. See note 8 "Variable Interest Entities" of our consolidated financial statements included herein.
|
•
|
loan repayments of
$994.9 million
, which includes (i) the repayment of $640.0 million on the pre-delivery financing in relation to the conversion of the
Hilli
into a FLNG, (ii) payment of $105.0 million in connection with the refinancing of the
Golar Crystal
facility mentioned above, (iii) payments of $76.9 million in connection with the
Golar Tundra
financing arrangement and (iv) scheduled repayments on our remaining debt facilities; and
|
•
|
payment of dividends of
$42.9 million
.
|
•
|
$275.0 million drawn down on the FLNG Hilli facility in relation to the conversion of the
Hilli
to a FLNG;
|
•
|
$112.0 million of debt proceeds in connection with our refinancing of the
Golar Crystal
debt facility (see note 5 "Variable Interest Entities" of our consolidated financial statements included herein);
|
•
|
$150.0 million of debt proceeds from the Margin Loan Facility entered into in March 2017; and
|
•
|
$391.4 million of debt proceeds from the new convertible bond which closed in February 2017.
|
•
|
loan repayments of
$446.6 million
, which includes the settlement of the balance outstanding on the refinanced
Golar Crystal
facility of $101.3 million in March 2017 as well as the buyback of the old convertible bond, which matured in March 2017, amounting to $219.7 million;
|
•
|
payment of
$31.2 million
for capped call transactions entered into in conjunction with the issuance of the new convertible bond mentioned above; and
|
•
|
payment of dividends of
$20.4 million
.
|
(in millions of $)
|
Total
Obligation
|
|
|
Due in 2019
|
|
|
Due in 2020 – 2021
|
|
|
Due in 2022 – 2023
|
|
|
Due Thereafter
|
|
Long-term and short-term debt (1)
|
2,582.2
|
|
|
732.2
|
|
|
349.6
|
|
|
561.6
|
|
|
938.8
|
|
Interest commitments on long-term debt and other interest rate swaps (2)
|
451.7
|
|
|
84.9
|
|
|
142.5
|
|
|
103.6
|
|
|
120.7
|
|
Operating lease obligations (3)
|
20.4
|
|
|
5.4
|
|
|
6.4
|
|
|
4.5
|
|
|
4.1
|
|
Purchase obligations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Egyptian Venture (4)
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
FLNG conversion (5)
|
21.5
|
|
|
21.5
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Other non-current liabilities (6)
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Total
|
3,075.8
|
|
|
844.0
|
|
|
498.5
|
|
|
669.7
|
|
|
1,063.6
|
|
(1)
|
The obligations under long-term and short-term debt above are presented gross of deferred finance charges and exclude interest. Included in these amounts are balances relating to certain lessor entities (for which legal ownership resides with financial institutions) that we are required to consolidate under U.S. GAAP into our financial statements as variable interest entities (see note 5 "Variable Interest Entities ("VIE")" and note 20 "Debt" of our consolidated financial statements included herein).
|
(2)
|
Our interest commitment on our long-term debt is calculated based on assumed LIBOR rates of between 2.41% to 2.95% and take into account our various margin rates and interest rate swaps associated with each financing arrangement.
|
(3)
|
We are committed to making rental payments under operating leases for leased offices, equipment and other assets.
|
(4)
|
As at December 31, 2018, we had a commitment to pay $1.0 million to an unrelated third party, contingent upon the conclusion of a material commercial business transaction by the Egyptian Natural Gas Holding Company, or ECGS, as consideration for work performed in connection with the setting up and incorporation of ECGS. This liability has been excluded from the above table, as the timing of any cash payment is uncertain.
|
(5)
|
We have a contract with Keppel and Black & Veatch for the conversion of our LNG carrier, the
Gimi
into a FLNG. The
Gimi
has recently entered the Keppel shipyard to commence its conversion to a FLNG. The conversion agreement for the
Gimi
is subject to certain payments and lodging of a full Notice to Proceed.
|
(6)
|
Our consolidated balance sheet as of December 31, 2018, includes
$145.6 million
classified as "Other non-current liabilities" of which
$63.8 million
represents the FLNG deferred revenue, being the corresponding liability upon initial recognition of the LTA derivative asset,
$33.0 million
represents liabilities under our pension plans,
$14.8 million
represents other guarantees provided to Golar Partners and Golar Power and
$27.1 million
represents estimated costs to decommission the mooring to which the
Hilli
will be attached for the duration of the LTA. These liabilities have been excluded from the above table as the timing and/or the amount of any cash payment is uncertain or in the case of the derivative, this represents deferred revenue. See note 23 ''Other Non-current Liabilities'' of our consolidated financial statements included herein for additional information regarding our other non-current liabilities.
|
(7)
|
We have excluded any capital commitments in relation to the conversion of the
Golar
Viking
into a FSRU as commencement of this project is subject to certain conditions precedent.
|
Name
|
|
Age
|
|
Position
|
Tor Olav Trøim
|
|
56
|
|
Chairman of our Board of Directors and Director
|
Daniel Rabun
|
|
64
|
|
Director, Audit Committee member and Nomination Committee member
|
Thorleif Egeli
|
|
55
|
|
Director
|
Carl Steen
|
|
68
|
|
Director, Audit Committee member, Compensation Committee member and Nomination Committee member
|
Niels Stolt-Nielsen
|
|
54
|
|
Director and Compensation Committee member
|
Lori Wheeler Naess
|
|
48
|
|
Director and Audit Committee Chairperson
|
Michael Ashford
|
|
72
|
|
Director and Company Secretary
|
Name
|
|
Age
|
|
Position
|
Iain Ross
|
|
57
|
|
Chief Executive Officer – Golar Management
|
Graham Robjohns
|
|
54
|
|
Chief Financial Officer and Deputy Chief Executive Officer – Golar Management
|
Øistein Dahl
|
|
58
|
|
Chief Operating Officer – Golar Management Norway
|
Morten Daviknes
|
|
53
|
|
Chief Technical Officer – Golar Management Norway
|
Director or Officer
|
Beneficial Ownership in
Common Shares
|
|
Interest in Options
|
|
|
|||||||||
|
Number of shares
|
|
%
|
|
|
Total
number of
options
|
|
Exercise price
|
|
Expiry date
|
||||
Tor Olav Trøim
|
5,233,953
(1)
|
|
|
5.18
|
%
|
|
150,000
|
|
|
$
|
55.48
|
|
|
2019
|
|
|
|
|
|
5,310
|
|
|
$
|
21.03
|
|
|
2021
|
||
|
|
|
|
|
103,970
|
|
|
$
|
26.74
|
|
|
2022
|
||
|
|
|
|
|
11,840
|
|
|
$
|
27.20
|
|
|
2023
|
||
Daniel Rabun
|
*
|
|
|
*
|
|
|
75,000
|
|
|
$
|
21.03
|
|
|
2021
|
|
|
|
|
|
11,905
|
|
|
$
|
26.74
|
|
|
2022
|
||
|
|
|
|
|
3,950
|
|
|
$
|
27.20
|
|
|
2023
|
||
Carl Steen
|
—
|
|
|
—
|
|
|
5,310
|
|
|
$
|
21.03
|
|
|
2021
|
|
|
|
|
|
3,970
|
|
|
$
|
26.74
|
|
|
2022
|
||
|
|
|
|
|
3,950
|
|
|
$
|
27.20
|
|
|
2023
|
||
Niels Stolt-Nielsen
|
2,421,313
(2)
|
|
|
2.39
|
%
|
|
5,310
|
|
|
$
|
21.03
|
|
|
2021
|
|
|
|
|
|
3,970
|
|
|
$
|
26.74
|
|
|
2022
|
||
|
|
|
|
|
3,950
|
|
|
$
|
27.20
|
|
|
2023
|
||
Lori Wheeler Naess
|
—
|
|
|
—
|
|
|
5,310
|
|
|
$
|
21.03
|
|
|
2021
|
|
|
|
|
|
3,970
|
|
|
$
|
26.74
|
|
|
2022
|
||
|
|
|
|
|
3,950
|
|
|
$
|
27.20
|
|
|
2023
|
||
Michael Ashford
|
—
|
|
|
—
|
|
|
3,950
|
|
|
$
|
27.20
|
|
|
2023
|
Iain Ross
|
—
|
|
|
—
|
|
|
300,000
|
|
|
$
|
20.81
|
|
|
2022
|
Graham Robjohns
|
—
|
|
|
—
|
|
|
45,000
|
|
|
$
|
55.48
|
|
|
2019
|
|
|
|
|
|
4,600
|
|
|
$
|
55.48
|
|
|
2020
|
||
|
|
|
|
|
29,250
|
|
|
$
|
22.88
|
|
|
2021
|
||
|
|
|
|
|
11,200
|
|
|
$
|
27.20
|
|
|
2023
|
||
Øistein Dahl
|
*
|
|
|
*
|
|
|
75,000
|
|
|
$
|
55.48
|
|
|
2019
|
|
|
|
|
|
6,100
|
|
|
$
|
55.48
|
|
|
2020
|
||
|
|
|
|
|
50,000
|
|
|
$
|
22.88
|
|
|
2021
|
||
|
|
|
|
|
8,400
|
|
|
$
|
27.20
|
|
|
2023
|
||
Thorleif Egeli
|
*
|
|
|
*
|
|
|
—
|
|
|
N/A
|
|
|
N/A
|
|
Morten Daviknes
|
*
|
|
|
*
|
|
|
50,000
|
|
|
$
|
55.48
|
|
|
2019
|
|
|
|
|
|
4,400
|
|
|
$
|
55.48
|
|
|
2020
|
||
|
|
|
|
|
33,000
|
|
|
$
|
22.88
|
|
|
2021
|
||
|
|
|
|
|
4,500
|
|
|
$
|
27.20
|
|
|
2023
|
|
|
|
|
||
|
|
Common Shares
|
|||
Owner
|
|
Number
|
Percent
|
||
Orbis Investment Management Ltd
(1)
|
|
8,924,611
|
|
8.81
|
%
|
FMR LLC
(2)
|
|
7,405,457
|
|
7.31
|
%
|
Barrow, Hanley, Mewhinney and Strauss, LLC
(3)
|
|
5,760,565
|
|
5.69
|
%
|
•
|
If he becomes of unsound mind or a patient for any purpose of any statute or applicable law relating to mental health and the Board resolves that he shall be removed from office;
|
•
|
If he becomes bankrupt or compounds with his creditors;
|
•
|
If he is prohibited by law from being a Director; or
|
•
|
If he ceases to be a Director by virtue of the Companies Act.
|
•
|
we will not be able to pay our liabilities as they fall due; or
|
•
|
the realizable value of our assets is less than our liabilities.
|
1.
|
Rules of Golar LNG Limited Bermuda Employee Share Option Scheme.
|
2.
|
Omnibus Agreement dated April 13, 2011, by and among Golar LNG Limited, Golar LNG Partners LP, Golar GP LLC and Golar Energy Limited.
|
3.
|
Amendment No. 1 to Omnibus Agreement, dated October 5, 2011 by and among Golar LNG Limited, Golar LNG Partners LP, Golar GP LLC and Golar Energy Limited.
|
4.
|
Bermuda Tax Assurance, dated May 23, 2011.
|
5.
|
Engineering, Procurement and Construction Contract, dated July 21, 2015 by and between Golar Gandria N.V. and Keppel Shipyard Limited.
|
6.
|
Memorandum of Agreement, dated September 9, 2015, by and between Golar Hilli Corporation and Fortune Lianjiang Shipping S.A.
|
7.
|
Bareboat charter by and between Golar Hilli Corp. and Fortune Lianjiang Shipping S.A., dated September 9, 2015.
|
8.
|
Additional Clauses to the Bareboat Charter Party dated September 9, 2015 between Golar Hilli Corp. and Fortune Lianjiang Shipping S.A.
|
9.
|
Common Terms Agreements, by and between Golar Hilli Corp. and Fortune Lianjiang Shipping S.A., dated September 9, 2015.
|
10.
|
Management and Administrative Services Agreement, effective as of April 1, 2016, between Golar LNG Partners LP and Golar Management Limited.
|
11.
|
Share Purchase Agreement, dated June 17, 2016, by and between Golar LNG and Stonepeak Infrastructure Fund II Cayman (G) Ltd.
|
12.
|
Investment and Shareholders Agreement, dated July 5, 2016, by and among Golar LNG Limited, Stonepeak Infrastructure Fund II Cayman (G) Ltd and Golar Power Limited.
|
13.
|
Second Amended and Restated Agreement of Limited Partnership of Golar LNG Partners LP dated October 19, 2016.
|
14.
|
Exchange Agreement, dated October 13, 2016, by and among Golar LNG Partners LP, Golar LNG Limited and Golar GP LLC.
|
15.
|
Indenture, dated February 17, 2017, between Golar LNG Limited and Deutsche Bank Trust Company Americas as a Bond Trustee.
|
16.
|
Loan Agreement, dated March 3, 2017, by and between Golar ML LLC and Citibank N.A.
|
17.
|
General Management Agreement, dated April 4, 2017, by and between Golar Management Ltd and Golar Power Limited.
|
18.
|
Purchase and Sale Agreement, dated August 15, 2017, by and among Golar LNG Limited, KS Investments Pte. Ltd., Black & Veatch International Company and Golar Partners Operating LLC.
|
19.
|
2017 Long-Term Incentive Plan.
|
20.
|
Liquefaction Tolling Agreement, dated November 29, 2017, between Societe Nationale de Hydrocarbures, Perenco Cameroon SA, Golar Hilli Corporation and Golar Cameroon SASU.
|
21.
|
Amendment Agreement, dated March 23 2018, relating to the Purchase and Sale Agreement by and between Golar LNG Partners LP, Golar LNG Limited, KS Investments Pte. Ltd. and Black & Veatch International Company.
|
22.
|
Amended and Restated Limited Liability Company Agreement of Golar Hilli LLC, dated July 12, 2018.
|
23.
|
Golar LNG Partners LP Guarantee Agreement, dated as of July 12, 2018.
|
24.
|
Amended and Restated Loan Agreement, dated July 20, 2018, by and between Golar ML LLC and Citibank N.A.
|
25.
|
Guarantee by and among Golar Power Limited, Golar LNG Limited and Compass Shipping 23 Corporation Limited dated September 25, 2018.
|
26.
|
Amended and Restated Engineering, Procurement and Construction Contract, dated December 13, 2018, by and between Golar Gimi Corporation and Keppel Shipyard Limited.
|
27.
|
Lease and Operate Agreement, dated February 26, 2019, by and between Gimi MS Corporation and BP Mauritania Investments Limited.
|
•
|
we and each subsidiary are organized in a jurisdiction outside the United States that grants an equivalent exemption from tax to corporations organized in the United States with respect to the types of U.S. source international transportation income that we earn (or an equivalent exemption);
|
•
|
we satisfy the publicly traded test or the qualified shareholder stock ownership test as described in the Section 883 Regulations; and
|
•
|
we meet certain substantiation, reporting and other requirements.
|
•
|
at least 75% of our gross income in a taxable year is "passive income"; or
|
•
|
at least 50% of our assets in a taxable year (averaged over the year and generally determined based upon value) are held for the production of, or produce, "passive income."
|
•
|
fails to provide an accurate taxpayer identification number;
|
•
|
provides us with an incorrect taxpayer identification number;
|
•
|
is notified by the IRS that it has failed to report all interest or dividends required to be shown on its U.S. federal income tax returns; or
|
•
|
in certain circumstances, fails to comply with applicable certification requirements.
|
•
|
pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;
|
•
|
provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and
|
•
|
provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements.
|
Fiscal year ended December 31, 2018
|
$
|
1,558,539
|
|
Fiscal year ended December 31, 2017
|
$
|
1,479,984
|
|
Fiscal year ended December 31, 2018
|
$
|
106,491
|
|
Fiscal year ended December 31, 2017
|
$
|
608,312
|
|
Fiscal year ended December 31, 2018
|
$
|
91,913
|
|
Fiscal year ended December 31, 2017
|
$
|
145,010
|
|
Fiscal year ended December 31, 2018
|
$
|
30,629
|
|
Fiscal year ended December 31, 2017
|
$
|
223,752
|
|
|
Total number of shares purchased
|
|
|
Average price paid per share
|
|
|
Total number of shares purchased as part of publicly announced plans or programme
|
|
|
Maximum number of shares that may be purchased under the plans or programme
(1)
|
|
|
October 2015
|
300,000
|
|
|
$
|
40.90
|
|
|
300,000
|
|
|
4,400,000
|
|
January 2016
|
200,000
|
|
|
$
|
41.07
|
|
|
200,000
|
|
|
4,200,000
|
|
As of November 30, 2016
(1)
|
500,000
|
|
|
$
|
40.97
|
|
|
500,000
|
|
|
—
|
|
Number
|
Description of Exhibit
|
1.1**
|
|
1.2**
|
|
1.3**
|
|
1.4**
|
|
1.5**
|
|
2.1**
|
|
2.2**
|
|
4.1**
|
|
4.2**
|
|
4.3**
|
|
4.4**
|
|
4.5**
|
|
4.6**
|
|
4.7**
|
|
4.8**
|
|
4.9**
|
|
4.10**
|
|
4.11**
|
|
4.12**
|
|
Golar LNG Limited
|
||
|
(Registrant)
|
||
|
|
||
Date
|
March 29, 2019
|
By
|
/s/ Graham Robjohns
|
|
|
Graham Robjohns
|
|
|
|
Chief Financial Officer and Deputy Chief Executive Officer
|
|
Page
|
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
|
|
CONSOLIDATED STATEMENTS OF INCOME (LOSS) FOR THE YEARS ENDED DECEMBER 31, 2018, 2017 AND 2016
|
|
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS FOR THE YEARS ENDED DECEMBER 31, 2018, 2017 AND 2016
|
|
CONSOLIDATED BALANCE SHEETS AS OF DECEMBER 31, 2018 AND 2017
|
|
CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED DECEMBER 31, 2018, 2017 AND 2016
|
|
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY FOR THE YEARS ENDED DECEMBER 31, 2018, 2017 AND 2016
|
|
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS
|
/s/ Ernst & Young LLP
|
|
We have served as the Company’s auditor since 2014.
|
|
London, United Kingdom
|
|
March 29, 2019
|
|
/s/ Ernst & Young LLP
|
|
London, United Kingdom
|
|
March 29, 2019
|
|
(in thousands of $, except per share amounts)
|
Notes
|
|
2018
|
|
|
2017
|
|
|
2016
|
|
|||
Time and voyage charter revenues
|
|
|
204,839
|
|
|
88,634
|
|
|
52,302
|
|
|||
Time charter revenues - collaborative arrangement
|
|
|
73,931
|
|
|
28,327
|
|
|
13,730
|
|
|||
Liquefaction services revenue
|
|
|
127,625
|
|
|
—
|
|
|
—
|
|
|||
Vessel and other management fees
|
|
|
24,209
|
|
|
26,576
|
|
|
14,225
|
|
|||
Total operating revenues
|
7, 28
|
|
430,604
|
|
|
143,537
|
|
|
80,257
|
|
|||
|
|
|
|
|
|
|
|
|
|
||||
Vessel operating expenses
|
|
|
96,860
|
|
|
55,946
|
|
|
53,163
|
|
|||
Voyage, charterhire and commission expenses
|
28
|
|
22,625
|
|
|
22,511
|
|
|
36,423
|
|
|||
Voyage, charterhire and commission expenses - collaborative arrangement
|
28
|
|
83,201
|
|
|
38,781
|
|
|
11,140
|
|
|||
Administrative expenses
|
2
|
|
51,542
|
|
|
38,031
|
|
|
37,302
|
|
|||
Project development expenses
|
2
|
|
21,690
|
|
|
12,303
|
|
|
8,658
|
|
|||
Depreciation and amortization
|
18
|
|
93,689
|
|
|
76,522
|
|
|
72,972
|
|
|||
Impairment of non-current assets
|
9
|
|
—
|
|
|
—
|
|
|
1,706
|
|
|||
Total operating expenses
|
|
|
369,607
|
|
|
244,094
|
|
|
221,364
|
|
|||
|
|
|
|
|
|
|
|
||||||
Other operating income
|
|
|
|
|
|
|
|
||||||
Other operating income
|
28, 30
|
|
36,722
|
|
|
—
|
|
|
—
|
|
|||
Realized and unrealized gain on oil derivative instrument
|
2
|
|
16,767
|
|
|
15,100
|
|
|
—
|
|
|||
Other operating gains - LNG trading
|
|
|
—
|
|
|
—
|
|
|
16
|
|
|||
Operating income (loss)
|
|
|
114,486
|
|
|
(85,457
|
)
|
|
(141,091
|
)
|
|||
|
|
|
|
|
|
|
|
||||||
Other non-operating expense
|
|
|
|
|
|
|
|
|
|
|
|||
Net loss on loss of control of Golar Power
|
6
|
|
—
|
|
|
—
|
|
|
(8,483
|
)
|
|||
Other non-operating expense
|
|
|
—
|
|
|
(81
|
)
|
|
(132
|
)
|
|||
Total other non-operating expense
|
|
|
—
|
|
|
(81
|
)
|
|
(8,615
|
)
|
|||
|
|
|
|
|
|
|
|
||||||
Financial income (expense)
|
|
|
|
|
|
|
|
|
|
||||
Interest income
|
28
|
|
10,133
|
|
|
5,890
|
|
|
2,969
|
|
|||
Interest expense
|
28
|
|
(101,908
|
)
|
|
(59,305
|
)
|
|
(71,201
|
)
|
|||
(Losses) gains on derivative instruments
|
10
|
|
(30,541
|
)
|
|
20,696
|
|
|
16,491
|
|
|||
Other financial items, net
|
10
|
|
(1,481
|
)
|
|
(69
|
)
|
|
(7,800
|
)
|
|||
Net financial expense
|
|
|
(123,797
|
)
|
|
(32,788
|
)
|
|
(59,541
|
)
|
|||
|
|
|
|
|
|
|
|
||||||
Loss before equity in net (losses) earnings of affiliates, income taxes and non-controlling interests
|
|
|
(9,311
|
)
|
|
(118,326
|
)
|
|
(209,247
|
)
|
|||
Income taxes
|
11
|
|
(1,267
|
)
|
|
(1,505
|
)
|
|
589
|
|
|||
Equity in net (losses) earnings of affiliates
|
16
|
|
(157,636
|
)
|
|
(25,448
|
)
|
|
47,878
|
|
|||
Net loss
|
|
|
(168,214
|
)
|
|
(145,279
|
)
|
|
(160,780
|
)
|
|||
Net income attributable to non-controlling interests
|
|
|
(63,214
|
)
|
|
(34,424
|
)
|
|
(25,751
|
)
|
|||
Net loss attributable to stockholders of Golar LNG Limited
|
|
|
(231,428
|
)
|
|
(179,703
|
)
|
|
(186,531
|
)
|
|||
Loss per share attributable to Golar LNG Ltd stockholders
Per common share amounts:
|
|
|
|
|
|
|
|
|
|
||||
Loss per share – basic and diluted
|
12
|
|
$
|
(2.30
|
)
|
|
$
|
(1.79
|
)
|
|
$
|
(1.99
|
)
|
Cash dividends paid
|
|
$
|
0.28
|
|
|
$
|
0.20
|
|
|
$
|
0.60
|
|
|
Notes
|
|
2018
|
|
|
2017
|
|
|
2016
|
|
COMPREHENSIVE LOSS
|
|
|
|
|
|
|
|
|||
Net loss
|
|
|
(168,214
|
)
|
|
(145,279
|
)
|
|
(160,780
|
)
|
Other comprehensive income (loss):
|
|
|
|
|
|
|
|
|
|
|
Gain (loss) associated with pensions, net of tax
|
24, 26
|
|
3,581
|
|
|
157
|
|
|
(556
|
)
|
Share of affiliates comprehensive (loss) income
|
26
|
|
(24,324
|
)
|
|
1,616
|
|
|
3,606
|
|
|
|
|
(20,743
|
)
|
|
1,773
|
|
|
3,050
|
|
Comprehensive loss
|
|
|
(188,957
|
)
|
|
(143,506
|
)
|
|
(157,730
|
)
|
|
|
|
|
|
|
|
|
|||
Comprehensive loss attributable to:
|
|
|
|
|
|
|
|
|||
Stockholders of Golar LNG Limited
|
|
|
(252,171
|
)
|
|
(177,930
|
)
|
|
(183,481
|
)
|
Non-controlling interests
|
|
|
63,214
|
|
|
34,424
|
|
|
25,751
|
|
Comprehensive loss
|
|
|
(188,957
|
)
|
|
(143,506
|
)
|
|
(157,730
|
)
|
|
Notes
|
|
2018
|
|
|
2017
|
|
ASSETS
|
|
|
|
|
|
||
Current assets
|
|
|
|
|
|
||
Cash and cash equivalents
|
|
|
217,835
|
|
|
214,862
|
|
Restricted cash and short-term deposits
|
14
|
|
332,033
|
|
|
222,265
|
|
Trade accounts receivable
*
|
|
|
64,918
|
|
|
14,980
|
|
Amounts due from related parties
|
28
|
|
9,425
|
|
|
7,898
|
|
Inventories
|
|
|
7,006
|
|
|
7,408
|
|
Other current assets
|
15
|
|
18,720
|
|
|
6,047
|
|
Total current assets
|
|
|
649,937
|
|
|
473,460
|
|
Non-current assets
|
|
|
|
|
|
||
Restricted cash
|
14
|
|
154,393
|
|
|
175,550
|
|
Investments in affiliates
|
16
|
|
571,782
|
|
|
703,225
|
|
Asset under development
|
17
|
|
20,000
|
|
|
1,177,489
|
|
Vessels and equipment, net
|
18
|
|
3,271,379
|
|
|
2,077,059
|
|
Other non-current assets
|
19
|
|
139,104
|
|
|
157,504
|
|
Total assets
|
|
|
4,806,595
|
|
|
4,764,287
|
|
LIABILITIES AND EQUITY
|
|
|
|
|
|
|
|
Current liabilities
|
|
|
|
|
|
|
|
Current portion of long-term debt and short-term debt
|
20
|
|
730,257
|
|
|
1,384,933
|
|
Trade accounts payable
*
|
|
|
9,701
|
|
|
70,430
|
|
Accrued expenses
*
|
21
|
|
133,234
|
|
|
105,895
|
|
Amounts due to related parties
|
28
|
|
5,417
|
|
|
8,734
|
|
Other current liabilities
|
22
|
|
121,529
|
|
|
62,282
|
|
Total current liabilities
|
|
|
1,000,138
|
|
|
1,632,274
|
|
Non-current liabilities
|
|
|
|
|
|
||
Long-term debt
|
20
|
|
1,835,102
|
|
|
1,025,914
|
|
Amounts due to related parties
|
28
|
|
—
|
|
|
177,247
|
|
Other non-current liabilities
|
23
|
|
145,564
|
|
|
132,548
|
|
Total liabilities
|
|
|
2,980,804
|
|
|
2,967,983
|
|
Commitments and contingencies
EQUITY
|
29, 30
|
|
|
|
|
|
|
Share capital 101,302,404 common shares of $1.00 each issued and outstanding (2017: 101,118,289)
|
25
|
|
101,303
|
|
|
101,119
|
|
Treasury shares
|
|
|
(20,483
|
)
|
|
(20,483
|
)
|
Additional paid-in capital
|
|
|
1,857,196
|
|
|
1,538,191
|
|
Contributed surplus
|
|
|
200,000
|
|
|
200,000
|
|
Accumulated other comprehensive loss
|
|
|
(28,512
|
)
|
|
(7,769
|
)
|
Retained losses
|
|
|
(364,379
|
)
|
|
(95,742
|
)
|
Total stockholders' equity
|
|
|
1,745,125
|
|
|
1,715,316
|
|
Non-controlling interests
|
5
|
|
80,666
|
|
|
80,988
|
|
Total equity
|
|
|
1,825,791
|
|
|
1,796,304
|
|
Total liabilities and equity
|
|
|
4,806,595
|
|
|
4,764,287
|
|
|
Notes
|
|
2018
|
|
|
2017
|
|
|
2016
|
|
Operating activities
|
|
|
|
|
|
|
|
|||
Net loss
|
|
|
(168,214
|
)
|
|
(145,279
|
)
|
|
(160,780
|
)
|
Adjustments to reconcile net loss to net cash provided by (used in) operating activities:
|
|
|
|
|
|
|
|
|
||
Depreciation and amortization
|
18
|
|
93,689
|
|
|
76,522
|
|
|
72,972
|
|
Amortization of deferred charges and debt guarantees
|
|
|
7,734
|
|
|
(900
|
)
|
|
13,732
|
|
Equity in net losses (earnings) of affiliates
|
|
|
157,636
|
|
|
25,448
|
|
|
(47,878
|
)
|
Net loss on loss of control of Golar Power
|
6
|
|
—
|
|
|
—
|
|
|
8,483
|
|
Dividends received
|
|
|
15,837
|
|
|
27,553
|
|
|
26,515
|
|
Compensation cost related to stock options
|
|
|
11,481
|
|
|
8,991
|
|
|
5,816
|
|
Net foreign exchange losses
|
|
|
1,997
|
|
|
1,620
|
|
|
1,429
|
|
Change in fair value of derivative instruments
|
2
|
|
38,610
|
|
|
(24,498
|
)
|
|
(26,644
|
)
|
Change in fair value of oil derivative instrument
|
2
|
|
9,970
|
|
|
(15,100
|
)
|
|
—
|
|
Amortization of deferred tax benefits on intra-group transfers
|
|
|
—
|
|
|
—
|
|
|
(1,715
|
)
|
Impairment of non-current assets
|
9
|
|
—
|
|
|
—
|
|
|
1,706
|
|
Impairment of loan receivable
|
|
|
—
|
|
|
—
|
|
|
7,627
|
|
Change in assets and liabilities:
|
|
|
|
|
|
|
|
|||
Trade accounts receivable
|
|
|
(49,938
|
)
|
|
(11,413
|
)
|
|
(567
|
)
|
Inventories
|
|
|
402
|
|
|
(151
|
)
|
|
987
|
|
Other current and non-current assets
|
2
|
|
(13,532
|
)
|
|
(80,897
|
)
|
|
14,615
|
|
Amounts due to related companies
|
|
|
(16,540
|
)
|
|
(27,130
|
)
|
|
(9,444
|
)
|
Trade accounts payable
|
|
|
(24,813
|
)
|
|
1,593
|
|
|
(28,511
|
)
|
Accrued expenses
|
|
|
12,191
|
|
|
28,666
|
|
|
(3,410
|
)
|
Other current and non-current liabilities
(1)
|
2
|
|
40,164
|
|
|
99,886
|
|
|
9,680
|
|
Net cash provided by (used in) operating activities
|
|
|
116,674
|
|
|
(35,089
|
)
|
|
(115,387
|
)
|
Investing activities
|
|
|
|
|
|
|
|
|||
Additions to vessels and equipment
|
|
|
(33,111
|
)
|
|
(1,349
|
)
|
|
(14,477
|
)
|
Additions to newbuildings
|
|
|
—
|
|
|
—
|
|
|
(19,220
|
)
|
Additions to asset under development
|
|
|
(116,715
|
)
|
|
(390,552
|
)
|
|
(200,821
|
)
|
Additions to investments in affiliates
|
|
|
(95,503
|
)
|
|
(123,107
|
)
|
|
(10,200
|
)
|
Dividends received
|
|
|
33,185
|
|
|
25,113
|
|
|
29,002
|
|
Short-term loan granted
|
|
|
—
|
|
|
—
|
|
|
(1,000
|
)
|
Proceeds from disposals to Golar Partners, net of cash disposed
|
6
|
|
9,652
|
|
|
70,000
|
|
|
107,247
|
|
Proceeds from loss of control of Golar Power, net of cash disposed
|
6
|
|
—
|
|
|
—
|
|
|
113,321
|
|
Net cash (used in) provided by investing activities
|
|
|
(202,492
|
)
|
|
(419,895
|
)
|
|
3,852
|
|
Financing activities
|
|
|
|
|
|
|
|
|||
Proceeds from short-term and long-term debt (including related parties)
|
|
|
1,177,748
|
|
|
928,432
|
|
|
405,817
|
|
Payment for capped call in connection with bond issuance
|
|
|
—
|
|
|
(31,194
|
)
|
|
—
|
|
Repayments of short-term and long-term debt (including related parties)
|
|
|
(994,874
|
)
|
|
(446,626
|
)
|
|
(271,858
|
)
|
Financing costs paid
|
|
|
(1,817
|
)
|
|
(1,564
|
)
|
|
(8,372
|
)
|
Cash dividends paid
|
|
|
(42,873
|
)
|
|
(20,438
|
)
|
|
(54,348
|
)
|
Proceeds from exercise of share options
|
|
|
2,686
|
|
|
(1,167
|
)
|
|
1,435
|
|
Purchase of treasury shares
|
|
|
—
|
|
|
—
|
|
|
(8,214
|
)
|
Proceeds from issuance of equity
|
|
|
—
|
|
|
—
|
|
|
169,876
|
|
Acquisition of non-controlling interests
|
|
|
36,532
|
|
|
—
|
|
|
—
|
|
Net cash provided by financing activities
|
|
|
177,402
|
|
|
427,443
|
|
|
234,336
|
|
Net increase (decrease) in cash, cash equivalents and restricted cash
|
|
|
91,584
|
|
|
(27,541
|
)
|
|
122,801
|
|
Cash, cash equivalents and restricted cash at beginning of period
|
|
|
612,677
|
|
|
640,218
|
|
|
517,417
|
|
Cash, cash equivalents and restricted cash at end of period
|
|
|
704,261
|
|
|
612,677
|
|
|
640,218
|
|
|
|
|
|
|
|
|
|
|||
Supplemental disclosure of cash flow information:
|
|
|
|
|
|
|
|
|
|
|
Cash paid during the year for:
|
|
|
|
|
|
|
|
|
|
|
Interest paid, net of capitalized interest
|
|
|
29,832
|
|
|
34,479
|
|
|
24,828
|
|
Income taxes paid
|
|
|
1,469
|
|
|
1,240
|
|
|
555
|
|
(in thousands of $)
|
2018
|
|
2017
|
|
2016
|
|
2015
|
|
Cash and cash equivalents
|
217,835
|
|
214,862
|
|
224,190
|
|
105,235
|
|
Restricted cash and short-term deposits (current portion)
|
332,033
|
|
222,265
|
|
183,693
|
|
231,821
|
|
Restricted cash (non-current portion)
|
154,393
|
|
175,550
|
|
232,335
|
|
180,361
|
|
|
704,261
|
|
612,677
|
|
640,218
|
|
517,417
|
|
|
Notes
|
|
Share Capital
|
|
Treasury Shares
|
|
Additional Paid-in Capital
|
|
Contributed Surplus
|
|
Accumulated Other Comprehensive Loss
|
|
Retained Earnings (Losses)
|
|
Non-controlling Interests
|
|
Total
Equity
|
||||||||
Balance at December 31, 2015
|
|
|
93,547
|
|
|
(12,269
|
)
|
|
1,317,806
|
|
|
200,000
|
|
|
(12,592
|
)
|
|
308,874
|
|
|
20,813
|
|
|
1,916,179
|
|
Net loss
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(186,531
|
)
|
|
25,751
|
|
|
(160,780
|
)
|
Dividends
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(18,693
|
)
|
|
—
|
|
|
(18,693
|
)
|
Exercise of share options
|
|
|
59
|
|
|
—
|
|
|
1,376
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,435
|
|
Employee stock compensation
|
|
|
—
|
|
|
—
|
|
|
7,865
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
7,865
|
|
Forfeiture of share options
|
|
|
—
|
|
|
—
|
|
|
(892
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(892
|
)
|
Net proceeds from issuance of shares
|
25
|
|
7,475
|
|
|
—
|
|
|
162,401
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
169,876
|
|
Other comprehensive income
|
26
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
3,050
|
|
|
—
|
|
|
—
|
|
|
3,050
|
|
Treasury shares
|
25
|
|
—
|
|
|
(8,214
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(8,214
|
)
|
Balance at December 31, 2016
|
|
|
101,081
|
|
|
(20,483
|
)
|
|
1,488,556
|
|
|
200,000
|
|
|
(9,542
|
)
|
|
103,650
|
|
|
46,564
|
|
|
1,909,826
|
|
Net loss
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(179,703
|
)
|
|
34,424
|
|
|
(145,279
|
)
|
Dividends
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(19,689
|
)
|
|
—
|
|
|
(19,689
|
)
|
Exercise of share options
|
|
|
38
|
|
|
—
|
|
|
(1,204
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,166
|
)
|
Employee stock compensation
|
|
|
—
|
|
|
—
|
|
|
11,098
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
11,098
|
|
Forfeiture of share options
|
|
|
—
|
|
|
—
|
|
|
(120
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(120
|
)
|
Other comprehensive income
|
26
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,773
|
|
|
—
|
|
|
—
|
|
|
1,773
|
|
Issuance of convertible bonds
|
20
|
|
—
|
|
|
—
|
|
|
39,861
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
39,861
|
|
Balance at December 31, 2017
|
|
|
101,119
|
|
|
(20,483
|
)
|
|
1,538,191
|
|
|
200,000
|
|
|
(7,769
|
)
|
|
(95,742
|
)
|
|
80,988
|
|
|
1,796,304
|
|
Net loss
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(231,428
|
)
|
|
63,214
|
|
|
(168,214
|
)
|
Dividends
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(37,076
|
)
|
|
(20,882
|
)
|
|
(57,958
|
)
|
Exercise of share options
|
|
|
184
|
|
|
—
|
|
|
2,502
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,686
|
|
Employee stock compensation
|
|
|
—
|
|
|
—
|
|
|
14,125
|
|
|
—
|
|
|
—
|
|
|
(133
|
)
|
|
—
|
|
|
13,992
|
|
Forfeiture of share options
|
|
|
—
|
|
|
—
|
|
|
(2,090
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(2,090
|
)
|
Effect of consolidating Hilli Lessor VIE
|
5
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
28,703
|
|
|
28,703
|
|
Sale of equity interest in common units
|
6
|
|
—
|
|
|
—
|
|
|
304,468
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(126,491
|
)
|
|
177,977
|
|
Conversion of debt to equity (see note 20)
|
20
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
55,134
|
|
|
55,134
|
|
Other comprehensive income
|
26
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(20,743
|
)
|
|
—
|
|
|
—
|
|
|
(20,743
|
)
|
Balance at December 31, 2018
|
|
|
101,303
|
|
|
(20,483
|
)
|
|
1,857,196
|
|
|
200,000
|
|
|
(28,512
|
)
|
|
(364,379
|
)
|
|
80,666
|
|
|
1,825,791
|
|
1.
|
GENERAL
|
2.
|
BASIS OF PREPARATION AND SIGNIFICANT ACCOUNTING POLICIES
|
(in thousands of $)
|
Year Ended
December 31, |
|||
|
2018
|
|
2017
|
|
Realized gain on oil derivative instrument
|
26,737
|
|
—
|
|
Unrealized (loss) gain on oil derivative instrument
|
(9,970
|
)
|
15,100
|
|
|
16,767
|
|
15,100
|
|
(in thousands of $)
|
As previously reported
|
Adjustments (decrease) increase
|
As adjusted
|
|||
December 31, 2016
|
|
|
|
|||
Administrative expenses
|
45,960
|
|
(8,658
|
)
|
37,302
|
|
Project development expenses
|
—
|
|
8,658
|
|
8,658
|
|
|
|
|
|
|||
December 31, 2017
|
|
|
|
|||
Administrative expenses
|
50,334
|
|
(12,303
|
)
|
38,031
|
|
Project development expenses
|
—
|
|
12,303
|
|
12,303
|
|
•
|
Management, having the authority to approve the action, commits to a plan to sell the assets or subsidiaries;
|
•
|
The asset or subsidiaries are available for immediate sale in its present condition subject only to terms that are usual and customary for such sales;
|
•
|
An active program to locate a buyer and other actions required to complete the plan to sell have been initiated;
|
•
|
The sale is probable; and
|
•
|
The transfer is expected to qualify for recognition as a completed sale, within one year.
|
(in thousands of $)
|
As previously reported
|
Adjustments (decrease) increase
|
As adjusted
|
|||
December 31, 2016
|
|
|
|
|||
Change in fair value of derivative instruments
|
—
|
|
(26,644
|
)
|
(26,644
|
)
|
Change in assets and liabilities:
|
|
|
|
|||
Other current and non-current assets
|
14,924
|
|
(309
|
)
|
14,615
|
|
Other current and non-current liabilities
|
(17,273
|
)
|
26,953
|
|
9,680
|
|
|
|
|
|
|||
December 31, 2017
|
|
|
|
|||
Change in fair value of derivative instruments
|
—
|
|
(24,498
|
)
|
(24,498
|
)
|
Change in assets and liabilities:
|
|
|
|
|||
Other current and non-current assets
|
(102,453
|
)
|
21,556
|
|
(80,897
|
)
|
Change in fair value of oil derivative instrument
|
—
|
|
(15,100
|
)
|
(15,100
|
)
|
Other current and non-current liabilities
|
81,844
|
|
18,042
|
|
99,886
|
|
(in thousands of $)
|
As previously reported
|
Adjustments decrease
|
As adjusted
|
|||
December 31, 2016
|
|
|
|
|||
Gains (losses) on derivative instruments
|
—
|
|
16,491
|
|
16,491
|
|
Other financial items, net
|
8,691
|
|
(16,491
|
)
|
(7,800
|
)
|
|
|
|
|
|||
December 31, 2017
|
|
|
|
|||
Gains (losses) on derivative instruments
|
—
|
|
20,696
|
|
20,696
|
|
Other financial items, net
|
20,627
|
|
(20,696
|
)
|
(69
|
)
|
3.
|
RECENTLY ISSUED ACCOUNTING STANDARDS
|
4.
|
SUBSIDIARIES
|
Name
|
Jurisdiction of Incorporation
|
Purpose
|
Golar LNG 2216 Corporation
|
Marshall Islands
|
Owns and operates
Golar Arctic
|
Golar Management Limited
|
United Kingdom
|
Management company
|
Golar Management Malaysia SDN. BDH.
|
Malaysia
|
Vessel management company
|
Golar Management Norway AS
|
Norway
|
Vessel management company
|
Golar Management D.O.O
|
Croatia
|
Vessel management company
|
Golar GP LLC – Limited Liability Company
|
Marshall Islands
|
Holding company
|
Golar LNG Energy Limited
|
Bermuda
|
Holding company
|
Golar Gimi Corporation
|
Marshall Islands
|
Owns
Gimi
|
Golar Hilli Corp. *
|
Marshall Islands
|
Owns
Hilli Episeyo
("
Hilli
")
|
Golar Gandria N.V.
|
Curaçao
|
Owns and operates
Golar Gandria
|
Golar Hull M2021 Corporation
|
Marshall Islands
|
Leases
Golar Seal**
|
Golar Hull M2022 Corporation
|
Marshall Islands
|
Leases
Golar Crystal**
|
Golar Hull M2027 Corporation
|
Marshall Islands
|
Owns and operates
Golar Bear
|
Golar Hull M2047 Corporation
|
Marshall Islands
|
Leases
Golar Snow**
|
Golar Hull M2048 Corporation
|
Marshall Islands
|
Leases
Golar Ice**
|
Golar LNG NB10 Corporation
|
Marshall Islands
|
Leases
Golar Glacier**
|
Golar LNG NB11 Corporation
|
Marshall Islands
|
Leases
Golar Kelvin**
|
Golar LNG NB12 Corporation
|
Marshall Islands
|
Owns and operates
Golar Frost
|
Golar LNG NB13 Corporation
|
Marshall Islands
|
Leases
Golar Tundra**
|
GVS Corporation
|
Marshall Islands
|
Owns and operates
Golar Viking
|
Golar Shoreline LNG Limited
|
Bermuda
|
Holding company
|
Golar Hilli LLC *
|
Marshall Islands
|
Holding company
|
5.
|
VARIABLE INTEREST ENTITIES ("VIEs")
|
Vessel
|
Effective from
|
Sales value (in $ millions)
|
First repurchase option (in $ millions)
|
Date of first repurchase option
|
Repurchase obligation at end of lease term
(in $ millions)
|
End of lease term
|
Golar Glacier
|
October 2014
|
204.0
|
173.8
|
October 2019
|
135.1
|
October 2024
|
Golar Kelvin
|
January 2015
|
204.0
|
173.8
|
January 2020
|
135.1
|
January 2025
|
Golar Snow
|
January 2015
|
204.0
|
173.8
|
January 2020
|
135.1
|
January 2025
|
Golar Ice
|
February 2015
|
204.0
|
173.8
|
February 2020
|
135.1
|
February 2025
|
Golar Tundra
|
November 2015
|
254.6
|
168.7
|
November 2018
(1)
|
76.4
|
November 2025
|
Golar Seal
|
March 2016
|
203.0
|
132.8
|
March 2021
|
87.4
|
March 2026
|
Golar Crystal
|
March 2017
|
187.0
|
97.3
|
March 2020
|
50.6
|
March 2027
|
Hilli
|
June 2018
|
1,200.0
|
633.2
|
June 2023
|
300.0
|
June 2028
|
(in thousands of $)
|
2019
|
2020
|
2021
|
2022
|
2023
|
2024+
|
Golar Glacier
|
17,100
|
17,147
|
17,100
|
17,100
|
17,100
|
12,884
|
Golar Kelvin
|
17,100
|
17,147
|
17,100
|
17,100
|
17,100
|
15,695
|
Golar Snow
|
17,100
|
17,147
|
17,100
|
17,100
|
17,100
|
15,695
|
Golar Ice
|
17,100
|
17,147
|
17,100
|
17,100
|
17,100
|
18,599
|
Golar Tundra
(1)(2)
|
22,437
|
21,548
|
20,610
|
19,697
|
18,784
|
32,079
|
Golar Seal
(2)
|
13,754
|
13,717
|
13,717
|
13,717
|
13,754
|
27,433
|
Golar Crystal
(1)
|
12,441
|
12,335
|
12,175
|
12,050
|
11,907
|
37,601
|
Hilli
(1)
|
128,418
|
123,526
|
118,800
|
114,075
|
109,463
|
412,055
|
(in thousands of $)
|
Golar Glacier
|
Golar Kelvin
|
Golar Snow
|
Golar Ice
|
Golar Tundra
|
Golar Seal
|
Golar Crystal
|
Hilli
|
2018
|
2017
|
||||||||||
Assets
|
|
|
|
|
|
|
|
|
Total
|
Total
|
||||||||||
Restricted cash and short-term deposits (see note 14)
|
21,170
|
|
71,924
|
|
19,294
|
|
8
|
|
—
|
|
3,405
|
|
3,186
|
|
57,441
|
|
176,428
|
|
130,063
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Liabilities
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Debt:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Current portion of long-term debt and short-term debt
(1)
|
39,319
|
|
182,540
|
|
30,404
|
|
117,888
|
|
121,741
|
|
—
|
|
5,741
|
|
148,880
|
|
646,513
|
|
833,664
|
|
Long-term interest bearing debt - non-current portion
(1)
|
114,093
|
|
—
|
|
123,267
|
|
—
|
|
—
|
|
123,524
|
|
90,790
|
|
749,100
|
|
1,200,774
|
|
252,691
|
|
|
153,412
|
|
182,540
|
|
153,671
|
|
117,888
|
|
121,741
|
|
123,524
|
|
96,531
|
|
897,980
|
|
1,847,287
|
|
1,086,355
|
|
(in thousands of $)
|
Hilli LLC
(2)
|
|
Assets
|
|
|
Cash and short-term deposits
|
85,238
|
|
Restricted cash and short-term deposits
|
57,441
|
|
Vessels and equipment, net
|
1,301,279
|
|
Other non-current assets
|
91,431
|
|
|
1,535,389
|
|
|
|
|
Liabilities
|
|
|
Current portion of long-term debt and short-term debt
(1)
|
148,880
|
|
Long-term interest bearing debt - non-current portion
(1)
|
749,100
|
|
|
897,980
|
|
6.
|
DISPOSAL OF LONG-LIVED ASSETS
|
(in thousands of $)
|
December 31, 2018
|
|
Net loss attributable to stockholders of Golar LNG Limited
|
(231,428
|
)
|
Transfer to the non-controlling interests: increase in Golar LNG Limited’s paid-in capital for sale of 1,096 Hilli Common Units in July 2018
|
304,468
|
|
Changes from net income attributable to stockholders of Golar LNG Limited and transfers to non-controlling interests
|
73,040
|
|
•
|
44.6%
of the Hilli Common Units, with the remaining Hilli Common Units owned by Golar Partners, Keppel and B&V (
50.0%
,
5.0%
and
0.4%
, respectively);
|
•
|
89.1%
of the Series A Special Units, with the remaining Series A Special Units owned by Keppel and B&V (
10.0%
and
0.9%
, respectively); and
|
•
|
89.1%
of the Series B Special Units, with the remaining Series B Special Units owned by Keppel and B&V (
10.0%
and
0.9%
, respectively).
|
•
|
holders of Series B Special Units are entitled to
95%
of these distributions, and
|
•
|
holders of Hilli Common Units are entitled to
5%
of these distributions.
|
(in thousands of $)
|
As of July 6, 2016
|
|
Net proceeds (a)
|
113,000
|
|
Fair value of 50% retained investment in Golar Power (b)
|
116,000
|
|
Fair value of counter guarantees from Golar Power (c)
|
3,701
|
|
Total fair value of Golar Power
|
232,701
|
|
|
|
|
Less:
|
|
|
Carrying value of Golar Power’s net assets (d)
|
236,713
|
|
Guarantees issued by Golar to Golar Power (e)
|
4,471
|
|
|
|
|
Loss on loss of control of Golar Power
|
(8,483
|
)
|
(in thousands of $)
|
As of July 6, 2016
|
|
Consideration received from Stonepeak
|
116,000
|
|
Less: Fee paid in relation to the transaction
|
(3,000
|
)
|
Net proceeds
|
113,000
|
|
(in thousands of $)
|
As at July 6, 2016
|
|
ASSETS
|
|
|
Current
|
|
|
Cash and cash equivalents
|
10,992
|
|
Restricted cash
|
15,463
|
|
Trade accounts receivable
|
1,474
|
|
Other receivables, prepaid expenses and accrued income
|
178
|
|
Short term amounts due from related parties
|
3,000
|
|
Inventory
|
952
|
|
Total current assets
|
32,059
|
|
Non-current
|
|
|
Newbuildings
|
50,436
|
|
Vessels, net
|
387,261
|
|
Total assets
|
469,756
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS' EQUITY
|
|
|
Current
|
|
|
Current portion of long-term debt
|
20,032
|
|
Trade accounts payable
|
969
|
|
Accrued expenses
|
21,357
|
|
Total current liabilities
|
42,358
|
|
Non-current
|
|
|
Long-term debt
|
190,685
|
|
Total liabilities
|
233,043
|
|
|
|
|
Equity
|
|
|
Stockholders’ equity
|
236,713
|
|
|
|
|
Total liabilities and stockholders' equity
|
469,756
|
|
(in thousands of $)
|
|
As of July 6, 2016
|
|
Debt guarantees
|
|
3,283
|
|
Shipyard guarantee
|
|
1,188
|
|
Total guarantees
|
|
4,471
|
|
7.
|
SEGMENT INFORMATION
|
•
|
Vessel operations
– We operate and subsequently charter out vessels on fixed terms to customers. We also provide technical vessel management services for our fleet as well as the fleets of Golar Partners and Golar Power.
|
•
|
FLNG
– In 2014, we ordered our first FLNG based on the conversion of our existing LNG carrier, the
Hilli.
The
Hilli
FLNG conversion was completed and the vessel was accepted by the customer under the LTA. In February 2019 Golar entered into an agreement with BP for the charter of a FLNG, which will be converted from our existing LNG carrier, the
Gimi
, for a 20-year period expected to commence in 2022. The
Gimi
was relocated from layup to Keppel Shipyard in early 2019 to proceed with the conversion.
|
•
|
Power
– In July 2016, we entered into certain agreements forming a 50/50 joint venture, Golar Power, with private equity firm Stonepeak. Golar Power offers integrated LNG based downstream solutions, through the ownership and operation of FSRUs and associated terminal and power generation infrastructure.
|
|
|
December 31, 2018
|
|
December 31, 2017
|
|
December 31, 2016
(3)
|
|
|||||||||||||||||||||||||||
(in thousands of $)
|
|
Vessel Operations
|
FLNG
|
Power
|
Other
(1)
|
Total
|
|
Vessel operations
|
FLNG
|
Power
|
Other
(1)
|
Total
|
|
Vessel operations
|
FLNG
|
Power
|
Other
(1)
|
Total
|
|
|||||||||||||||
Statement of Operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total operating revenues
|
|
302,979
|
|
127,625
|
|
—
|
|
—
|
|
430,604
|
|
|
143,537
|
|
—
|
|
—
|
|
—
|
|
143,537
|
|
|
80,257
|
|
—
|
|
—
|
|
—
|
|
80,257
|
|
|
Depreciation and amortization
|
|
(65,496
|
)
|
(28,193
|
)
|
—
|
|
—
|
|
(93,689
|
)
|
|
(76,522
|
)
|
—
|
|
—
|
|
—
|
|
(76,522
|
)
|
|
(72,972
|
)
|
—
|
|
—
|
|
—
|
|
(72,972
|
)
|
|
Other operating expenses
|
|
(231,887
|
)
|
(44,031
|
)
|
—
|
|
—
|
|
(275,918
|
)
|
|
(163,207
|
)
|
(4,365
|
)
|
—
|
|
—
|
|
(167,572
|
)
|
|
(144,816
|
)
|
(3,576
|
)
|
—
|
|
—
|
|
(148,392
|
)
|
|
Other operating gains and losses
|
|
50,740
|
|
2,749
|
|
—
|
|
—
|
|
53,489
|
|
|
—
|
|
15,100
|
|
—
|
|
—
|
|
15,100
|
|
|
16
|
|
—
|
|
—
|
|
—
|
|
16
|
|
|
Operating income (loss)
|
|
56,336
|
|
58,150
|
|
—
|
|
—
|
|
114,486
|
|
|
(96,192
|
)
|
10,735
|
|
—
|
|
—
|
|
(85,457
|
)
|
|
(137,515
|
)
|
(3,576
|
)
|
—
|
|
—
|
|
(141,091
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Inter segment operating income
(loss)
(2)
|
|
335
|
|
—
|
|
—
|
|
(335
|
)
|
—
|
|
|
4,568
|
|
—
|
|
—
|
|
(4,568
|
)
|
—
|
|
|
275
|
|
—
|
|
—
|
|
(275
|
)
|
—
|
|
|
Segment operating (loss) income
|
|
56,671
|
|
58,150
|
|
—
|
|
(335
|
)
|
114,486
|
|
|
(91,624
|
)
|
10,735
|
|
—
|
|
(4,568
|
)
|
(85,457
|
)
|
|
(137,240
|
)
|
(3,576
|
)
|
—
|
|
(275
|
)
|
(141,091
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Equity in net (losses) earnings of affiliates
|
|
(138,676
|
)
|
(2,047
|
)
|
(16,913
|
)
|
—
|
|
(157,636
|
)
|
|
1,503
|
|
(8,153
|
)
|
(18,798
|
)
|
—
|
|
(25,448
|
)
|
|
37,344
|
|
—
|
|
10,534
|
|
—
|
|
47,878
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Balance sheet:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total assets
|
|
2,990,506
|
|
1,555,389
|
|
266,151
|
|
(5,451
|
)
|
4,806,595
|
|
|
3,025,244
|
|
1,515,463
|
|
228,696
|
|
(5,116
|
)
|
4,764,287
|
|
|
3,152,311
|
|
978,614
|
|
126,534
|
|
(548
|
)
|
4,256,911
|
|
|
Investment in affiliates
|
|
305,631
|
|
—
|
|
266,151
|
|
—
|
|
571,782
|
|
|
472,482
|
|
2,047
|
|
228,696
|
|
—
|
|
703,225
|
|
|
512,046
|
|
10,200
|
|
126,534
|
|
—
|
|
648,780
|
|
|
Capital expenditures
|
|
22,978
|
|
116,715
|
|
—
|
|
—
|
|
139,693
|
|
|
1,349
|
|
390,552
|
|
—
|
|
—
|
|
391,901
|
|
|
33,698
|
|
200,820
|
|
—
|
|
—
|
|
234,518
|
|
|
(in thousands of $)
|
2018
|
|
2017
|
|
2016
|
||||||||||||
The Cool Pool
(1)
|
251,070
|
|
|
62
|
%
|
|
106,302
|
|
|
91
|
%
|
|
51,075
|
|
|
77
|
%
|
Perenco and SNH (note 8)
|
127,625
|
|
|
31
|
%
|
|
—
|
|
|
—
|
%
|
|
—
|
|
|
—
|
%
|
An energy and logistics company
|
9,235
|
|
|
2
|
%
|
|
9,235
|
|
|
8
|
%
|
|
7,975
|
|
|
12
|
%
|
8.
|
REVENUE
|
(in thousands of $)
|
Contract assets
(1)
|
Contract liabilities
(2)
|
||
Opening balance on January 1, 2018
|
17,245
|
|
—
|
|
Payments received for services billed
|
(14,558
|
)
|
—
|
|
Services provided and billed in current period
|
143,670
|
|
33,763
|
|
Payments received for services billed in current period
|
(120,975
|
)
|
—
|
|
Impairment
|
(1,006
|
)
|
—
|
|
Deferred commissioning period revenue
|
—
|
|
(2,467
|
)
|
Closing balance on December 31, 2018
|
24,376
|
|
31,296
|
|
•
|
$3.1 million
is included in balance sheet line item "Amounts due from related parties" under current assets (
$7.2 million
at
December 31, 2017), and
|
•
|
$4.3 million
is included in "Amounts due to related parties" under current liabilities (
$10.0 million
at December 31, 2017).
|
|
Year Ended
December 31, |
|||
(in thousands of $)
|
2018
|
|
2017
|
|
Base tolling fee
(1)
|
119,677
|
|
—
|
|
Amortization of deferred commissioning period revenue
(2)
|
2,467
|
|
—
|
|
Amortization of Day 1 gain
(3)
|
5,817
|
|
—
|
|
Other
|
(336
|
)
|
—
|
|
Total
|
127,625
|
|
—
|
|
9.
|
IMPAIRMENT OF NON-CURRENT ASSETS
|
Vessel
|
2018 Market value
(1)
|
2018 Carrying value
|
Deficit
|
Golar Arctic
|
76,750
|
134,400
|
57,650
|
Golar Seal
|
178,750
|
179,000
|
250
|
Golar Bear
|
182,000
|
183,900
|
1,900
|
Golar Frost
|
182,000
|
187,700
|
5,700
|
Golar Viking
|
78,250
|
112,300
|
34,050
|
Golar Glacier
|
182,500
|
183,500
|
1,000
|
Golar Snow
|
184,500
|
191,800
|
7,300
|
Golar Ice
|
184,000
|
192,000
|
8,000
|
Golar Kelvin
|
183,500
|
185,600
|
2,100
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
|
2016
|
|
Impairment charge
|
—
|
|
|
—
|
|
|
1,706
|
|
10.
|
(LOSSES) GAINS ON DERIVATIVE INSTRUMENTS AND OTHER FINANCIAL ITEMS, NET
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
|
2016
|
|
Mark-to-market adjustment for interest rate swap derivatives (see note 27)
|
604
|
|
|
6,614
|
|
|
2,818
|
|
Mark-to-market adjustment for equity derivatives (see note 27)
|
(30,663
|
)
|
|
16,622
|
|
|
24,819
|
|
Mark-to-market adjustment for foreign exchange swap derivatives
|
(1,151
|
)
|
|
821
|
|
|
(993
|
)
|
Unrealized mark-to-market (losses) gains on Earn-Out Units (see note 19)
|
(7,400
|
)
|
|
441
|
|
|
—
|
|
Interest income (expense) on undesignated interest rate swaps (see note 27)
|
8,069
|
|
|
(3,802
|
)
|
|
(10,153
|
)
|
|
(30,541
|
)
|
|
20,696
|
|
|
16,491
|
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
|
2016
|
|
Impairment of loan
(1)
|
—
|
|
|
—
|
|
|
(7,627
|
)
|
Financing arrangement fees and other costs
|
(244
|
)
|
|
(677
|
)
|
|
(404
|
)
|
Amortization of debt guarantee
|
861
|
|
|
1,548
|
|
|
1,563
|
|
Foreign exchange loss on operations
|
(1,997
|
)
|
|
(888
|
)
|
|
(1,909
|
)
|
Other
|
(101
|
)
|
|
(52
|
)
|
|
577
|
|
|
(1,481
|
)
|
|
(69
|
)
|
|
(7,800
|
)
|
11.
|
INCOME TAXES
|
|
Year ended December 31
|
|||||||
(in thousands of $)
|
2018
|
|
|
2017
|
|
|
2016
|
|
Current tax expense
|
836
|
|
|
1,478
|
|
|
1,035
|
|
Deferred tax expense
|
431
|
|
|
27
|
|
|
90
|
|
Amortization of tax benefit arising on intra-group transfers of non-current assets
|
—
|
|
|
—
|
|
|
(1,714
|
)
|
Total income tax expense (benefit)
|
1,267
|
|
|
1,505
|
|
|
(589
|
)
|
|
Year ended December 31
|
|||||||
(in thousands of $)
|
2018
|
|
|
2017
|
|
|
2016
|
|
Income taxes at statutory rate
|
—
|
|
|
—
|
|
|
—
|
|
Effect of deferred tax benefit on intra-group transfers of non-current assets
|
—
|
|
|
—
|
|
|
(1,714
|
)
|
Effect of movement in deferred tax balances
|
431
|
|
|
27
|
|
|
90
|
|
Effect of adjustments in respect of current tax in prior periods
|
(369
|
)
|
|
(5
|
)
|
|
(334
|
)
|
Effect of taxable income in various countries
|
1,205
|
|
|
1,483
|
|
|
1,369
|
|
Total tax expense (benefit)
|
1,267
|
|
|
1,505
|
|
|
(589
|
)
|
12.
|
LOSS PER SHARE
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
|
2016
|
|
Net loss attributable to Golar LNG Ltd stockholders - basic and diluted
|
(231,428
|
)
|
|
(179,703
|
)
|
|
(186,531
|
)
|
(in thousands)
|
2018
|
|
|
2017
|
|
|
2016
|
|
Basic and diluted loss per share:
|
|
|
|
|
|
|||
Weighted average number of common shares outstanding
|
100,684
|
|
|
100,597
|
|
|
93,933
|
|
|
2018
|
|
|
2017
|
|
|
2016
|
|
|||
Basic and diluted
|
$
|
(2.30
|
)
|
|
$
|
(1.79
|
)
|
|
$
|
(1.99
|
)
|
13.
|
OPERATING LEASES
|
Year ending December 31
|
|
|
(in thousands of $)
|
|
|
2019
|
25,851
|
|
Total
|
25,851
|
|
14.
|
RESTRICTED CASH AND SHORT-TERM DEPOSITS
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Restricted cash relating to the total return equity swap
(1)
|
82,863
|
|
|
58,351
|
|
Restricted cash in relation to the
Hilli
(2)
|
174,597
|
|
|
174,737
|
|
Restricted cash and short-term deposits held by lessor VIEs
(3)
|
176,428
|
|
|
130,063
|
|
Restricted cash relating to the $1.125 billion debt facility
(4)
|
17,657
|
|
|
33,752
|
|
Collateral on the Margin Loan Facility
(5)
|
33,413
|
|
|
—
|
|
Restricted cash relating to office lease
|
777
|
|
|
813
|
|
Bank guarantee
|
691
|
|
|
99
|
|
Total restricted cash and short-term deposits
|
486,426
|
|
|
397,815
|
|
Less: Amounts included in current restricted cash and short-term deposits
|
(332,033
|
)
|
|
(222,265
|
)
|
Long-term restricted cash
|
154,393
|
|
|
175,550
|
|
15.
|
OTHER CURRENT ASSETS
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Prepaid expenses
|
4,285
|
|
|
3,045
|
|
Other receivables
|
14,435
|
|
|
3,002
|
|
|
18,720
|
|
|
6,047
|
|
16.
|
INVESTMENTS IN AFFILIATES
|
|
2018
|
|
|
2017
|
|
Golar Partners
(1)
|
32.0
|
%
|
|
31.8
|
%
|
Egyptian Company for Gas Services S.A.E ("ECGS")
|
50
|
%
|
|
50
|
%
|
Golar Power
|
50
|
%
|
|
50
|
%
|
OneLNG
|
51
|
%
|
|
51
|
%
|
The Cool Pool Limited ("Pool Manager")
(2)
|
50
|
%
|
|
33
|
%
|
Avenir LNG Limited ("Avenir")
|
22.5
|
%
|
|
—
|
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Cost
|
981,196
|
|
|
877,810
|
|
Dividends
|
(336,286
|
)
|
|
(287,263
|
)
|
Equity in net earnings of affiliates
|
95,458
|
|
|
107,553
|
|
Impairment of investment in affiliate
|
(149,389
|
)
|
|
—
|
|
Share of other comprehensive income of affiliates
|
(19,197
|
)
|
|
5,125
|
|
Equity in net assets of affiliates
|
571,782
|
|
|
703,225
|
|
(in thousands of $)
|
December 31, 2018
|
|
|
December 31, 2017
|
|||||||||||||||||||
|
ECGS
|
Golar Partners
|
Pool Manager
|
Golar Power
|
OneLNG
|
Avenir
|
|
ECGS
|
Golar Partners
|
Pool Manager
|
Golar Power
|
OneLNG
|
|||||||||||
Balance Sheet
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
Current assets
|
22,955
|
|
164,529
|
|
98,448
|
|
79,029
|
|
4,884
|
|
78,591
|
|
|
37,476
|
|
311,496
|
|
40,661
|
|
61,374
|
|
14,955
|
|
Non-current assets
|
244
|
|
2,076,288
|
|
—
|
|
955,100
|
|
—
|
|
20,840
|
|
|
333
|
|
2,115,875
|
|
—
|
|
713,646
|
|
—
|
|
Current liabilities
|
11,510
|
|
323,508
|
|
98,448
|
|
285,447
|
|
8,741
|
|
1,760
|
|
|
25,836
|
|
180,087
|
|
40,661
|
|
60,033
|
|
10,941
|
|
Non-current liabilities
|
1,203
|
|
1,157,792
|
|
—
|
|
149,114
|
|
—
|
|
—
|
|
|
1,203
|
|
1,399,683
|
|
—
|
|
174,656
|
|
—
|
|
Non-controlling interests
|
—
|
|
79,902
|
|
—
|
|
1,541
|
|
—
|
|
—
|
|
|
—
|
|
76,544
|
|
—
|
|
—
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
Statement of Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
Revenue
|
30,596
|
|
346,650
|
|
346,170
|
|
78,732
|
|
7
|
|
487
|
|
|
44,052
|
|
433,102
|
|
159,460
|
|
7,354
|
|
—
|
|
Net income (loss)
|
207
|
|
76,548
|
|
—
|
|
(10,202
|
)
|
(6,646
|
)
|
(975
|
)
|
|
1,047
|
|
144,848
|
|
—
|
|
(7,899
|
)
|
(14,883
|
)
|
17.
|
ASSET UNDER DEVELOPMENT
|
(in thousands of $)
|
2018
|
|
2017
|
|
Purchase price installments
|
—
|
|
962,709
|
|
Interest costs capitalized
|
—
|
|
116,416
|
|
Other costs capitalized
(1)
|
20,000
|
|
98,364
|
|
|
20,000
|
|
1,177,489
|
|
18.
|
VESSELS AND EQUIPMENT, NET
|
(in thousands of $)
|
2018
|
|
2017
|
|
Cost
|
|
|
||
As of January 1
|
2,431,136
|
|
2,438,720
|
|
Additions
|
11,304
|
|
1,349
|
|
Transfer from asset under development
(1)
|
1,296,431
|
|
—
|
|
Transfer to asset under development
|
(90,828
|
)
|
—
|
|
Write-offs
|
(9,995
|
)
|
(8,933
|
)
|
As of December 31
|
3,638,048
|
|
2,431,136
|
|
|
|
|
||
Depreciation, amortization and impairment
|
|
|
||
As of January 1
|
(354,077
|
)
|
(284,889
|
)
|
Charge for the year
(2)
|
(93,415
|
)
|
(76,522
|
)
|
Transfer to asset under development
|
70,828
|
|
—
|
|
Write-offs
|
9,995
|
|
7,334
|
|
As of December 31
|
(366,669
|
)
|
(354,077
|
)
|
|
|
—
|
|
|
Net book value as at December 31
|
3,271,379
|
|
2,077,059
|
|
19.
|
OTHER NON-CURRENT ASSETS
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Oil derivative instrument (see note 27)
|
84,730
|
|
|
94,700
|
|
Other non-current assets
(1)
|
40,729
|
|
|
37,891
|
|
Mark-to-market interest rate swaps valuation (see note 27)
|
6,298
|
|
|
10,166
|
|
OLT Offshore LNG Toscana S.p.A ("OLT–O")
(2)
|
7,347
|
|
|
7,347
|
|
Derivatives - other (see note 16)
|
—
|
|
|
7,400
|
|
|
139,104
|
|
|
157,504
|
|
20.
|
DEBT
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
|
|
|
|
||
Total long-term and short-term debt
|
2,565,359
|
|
|
2,410,847
|
|
Less: current portion of long-term debt and short-term debt
|
(730,257
|
)
|
|
(1,384,933
|
)
|
Long-term debt
|
1,835,102
|
|
|
1,025,914
|
|
Year ending December 31
|
Golar debt
|
|
|
VIE debt
(1)
|
|
|
Total debt
|
|
(in thousands of $)
|
|
|
|
|
|
|||
2019
|
85,225
|
|
|
646,959
|
|
|
732,184
|
|
2020
|
163,383
|
|
|
82,260
|
|
|
245,643
|
|
2021
|
21,716
|
|
|
82,260
|
|
|
103,976
|
|
2022
|
375,377
|
|
|
82,260
|
|
|
457,637
|
|
2023
|
21,716
|
|
|
82,260
|
|
|
103,976
|
|
2024 and thereafter
|
65,151
|
|
|
873,629
|
|
|
938,780
|
|
Total
|
732,568
|
|
|
1,849,628
|
|
|
2,582,196
|
|
Deferred finance charges
|
(14,494
|
)
|
|
(2,343
|
)
|
|
(16,837
|
)
|
Total
|
718,074
|
|
|
1,847,285
|
|
|
2,565,359
|
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
|
Maturity date
|
Golar Arctic facility
|
58,300
|
|
|
65,600
|
|
|
2019
|
Golar Viking facility
|
46,875
|
|
|
52,083
|
|
|
2020
|
2017 Convertible bonds
|
353,661
|
|
|
340,173
|
|
|
2022
|
Margin Loan
|
100,000
|
|
|
119,125
|
|
|
2020
|
FLNG Hilli facility
|
—
|
|
|
525,000
|
|
|
2018
|
Hilli shareholder loans:
|
|
|
|
|
|
||
- Keppel loan
|
—
|
|
|
44,066
|
|
|
2027
|
- B&V loan
|
—
|
|
|
5,000
|
|
|
2027
|
$1.125 billion facility:
|
|
|
|
|
|
||
- Golar Bear facility
|
86,200
|
|
|
96,975
|
|
|
2024/2026*
|
- Golar Frost facility
|
87,532
|
|
|
98,474
|
|
|
2024/2026*
|
Subtotal (excluding lessor VIE loans)
|
732,568
|
|
|
1,346,496
|
|
|
|
ICBCL VIE loans:
|
|
|
|
|
|
||
- Golar Glacier facility
|
154,226
|
|
|
161,876
|
|
|
2018/2024**
|
- Golar Snow facility
|
154,566
|
|
|
162,566
|
|
|
2018/2025**
|
- Golar Kelvin facility
|
182,540
|
|
|
182,540
|
|
|
**
|
- Golar Ice facility
|
117,888
|
|
|
134,954
|
|
|
**
|
CMBL VIE loan:
|
|
|
|
|
|
||
- Golar Tundra facility
|
121,741
|
|
|
198,613
|
|
|
2026**
|
CCBFL VIE loan:
|
|
|
|
|
|
||
- Golar Seal facility
|
123,524
|
|
|
143,849
|
|
|
2026**
|
COSCO VIE loan:
|
|
|
|
|
|
||
- Golar Crystal facility
|
97,163
|
|
|
104,006
|
|
|
2027**
|
CSSC VIE loan:
|
|
|
|
|
|
||
- Hilli facility
|
897,980
|
|
|
—
|
|
|
2028**
|
Total debt (gross)
|
2,582,196
|
|
|
2,434,900
|
|
|
|
Deferred finance charges
|
(16,837
|
)
|
|
(24,053
|
)
|
|
|
Total debt
|
2,565,359
|
|
|
2,410,847
|
|
|
|
Tranche
|
Proportion of facility
|
Term of loan from date of drawdown
|
Repayment terms
|
K-Sure
|
40%
|
12 years
|
Six-monthly installments
|
KEXIM
|
40%
|
12 years
|
Six-monthly installments
|
Commercial
|
20%
|
5 years
|
Six-monthly installments, unpaid balance to be refinanced after 5 years
|
21.
|
ACCRUED EXPENSES
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Vessel operating and drydocking expenses
|
24,041
|
|
|
10,978
|
|
Administrative expenses
|
11,042
|
|
|
9,572
|
|
Interest expense
|
97,688
|
|
|
84,249
|
|
Current tax payable
|
463
|
|
|
1,096
|
|
|
133,234
|
|
|
105,895
|
|
22.
|
OTHER CURRENT LIABILITIES
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Deferred operating cost and charterhire revenue
|
8,206
|
|
|
1,044
|
|
Mark-to-market foreign exchange swaps valuation (see note 27)
|
1,322
|
|
|
223
|
|
Mark-to-market equity swaps valuation (see note 27)
|
70,804
|
|
|
40,141
|
|
Day 1 gain deferred revenue - current portion (see note 23)
|
9,950
|
|
|
7,463
|
|
Dividends payable
|
16,762
|
|
|
5,032
|
|
Other
(1)
|
14,485
|
|
|
8,379
|
|
|
121,529
|
|
|
62,282
|
|
23.
|
OTHER NON-CURRENT LIABILITIES
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Day 1 gain deferred revenue
(1)
|
63,834
|
|
|
72,138
|
|
Deferred commissioning period revenue
(2)
|
27,076
|
|
|
—
|
|
Pension obligations (see note 24)
|
32,972
|
|
|
37,537
|
|
Guarantees issued to Golar Partners and Golar Power (see note 28)
|
14,770
|
|
|
11,429
|
|
Other
(3)
|
6,912
|
|
|
11,444
|
|
|
145,564
|
|
|
132,548
|
|
24.
|
PENSIONS
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
|
2016
|
|
Service cost
|
250
|
|
|
313
|
|
|
302
|
|
Interest cost
|
1,687
|
|
|
1,901
|
|
|
2,051
|
|
Expected return on plan assets
|
(926
|
)
|
|
(843
|
)
|
|
(806
|
)
|
Recognized actuarial loss
|
1,392
|
|
|
1,182
|
|
|
1,060
|
|
Net periodic benefit cost
|
2,403
|
|
|
2,553
|
|
|
2,607
|
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Reconciliation of benefit obligation:
|
|
|
|
||
Benefit obligation at January 1
|
51,171
|
|
|
50,376
|
|
Service cost
|
250
|
|
|
313
|
|
Interest cost
|
1,687
|
|
|
1,901
|
|
Actuarial (gain)/ loss
|
(3,265
|
)
|
|
873
|
|
Foreign currency exchange rate changes
|
(599
|
)
|
|
1,008
|
|
Benefit payments
|
(3,151
|
)
|
|
(3,300
|
)
|
Benefit obligation at December 31
|
46,093
|
|
|
51,171
|
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Reconciliation of fair value of plan assets:
|
|
|
|
||
Fair value of plan assets at January 1
|
13,634
|
|
|
12,503
|
|
Actual (loss)/ return on plan assets
|
(249
|
)
|
|
1,039
|
|
Employer contributions
|
3,617
|
|
|
2,316
|
|
Foreign currency exchange rate changes
|
(730
|
)
|
|
1,076
|
|
Benefit payments
|
(3,151
|
)
|
|
(3,300
|
)
|
Fair value of plan assets at December 31
|
13,121
|
|
|
13,634
|
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Projected benefit obligation
|
(46,093
|
)
|
|
(51,171
|
)
|
Fair value of plan assets
|
13,121
|
|
|
13,634
|
|
Unfunded status
(1)
|
(32,972
|
)
|
|
(37,537
|
)
|
|
December 31, 2018
|
|
December 31, 2017
|
||||||||||||||
(in thousands of $)
|
UK Scheme
|
|
|
Marine Scheme
|
|
|
Total
|
|
|
UK Scheme
|
|
|
Marine Scheme
|
|
|
Total
|
|
Projected benefit obligation
|
(9,818
|
)
|
|
(36,275
|
)
|
|
(46,093
|
)
|
|
(11,654
|
)
|
|
(39,517
|
)
|
|
(51,171
|
)
|
Fair value of plan assets
|
12,291
|
|
|
830
|
|
|
13,121
|
|
|
12,968
|
|
|
666
|
|
|
13,634
|
|
Funded (unfunded) status at end of year
|
2,473
|
|
|
(35,445
|
)
|
|
(32,972
|
)
|
|
1,314
|
|
|
(38,851
|
)
|
|
(37,537
|
)
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Equity securities
|
12,291
|
|
|
9,921
|
|
Debt securities
|
—
|
|
|
3,047
|
|
Cash
|
830
|
|
|
666
|
|
|
13,121
|
|
|
13,634
|
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Net actuarial loss (see note 26)
|
9,218
|
|
|
12,799
|
|
Marine scheme
|
|
|
2018 (%)
|
|
2017 (%)
|
Cash
|
|
|
100
|
|
10,000
|
Total
|
|
|
100
|
|
100
|
UK scheme
|
|
|
2018 (%)
|
|
2017 (%)
|
Equity
|
|
|
100
|
|
76.5
|
Bonds
|
|
|
—
|
|
23.5
|
Total
|
|
|
100
|
|
100
|
(in thousands of $)
|
UK scheme
|
|
Marine scheme
|
|
|
Employer contributions
|
510
|
|
|
2,900
|
|
|
2018
|
|
|
2017
|
|
Discount rate
|
3.90
|
%
|
|
3.40
|
%
|
Rate of compensation increase
|
2.20
|
%
|
|
2.32
|
%
|
|
2018
|
|
|
2017
|
|
Discount rate
|
3.40
|
%
|
|
3.87
|
%
|
Expected return on plan assets
|
6.75
|
%
|
|
6.75
|
%
|
Rate of compensation increase
|
2.32
|
%
|
|
2.38
|
%
|
25.
|
SHARE CAPITAL AND SHARE OPTIONS
|
(in thousands of $, except per share data)
|
2018
|
|
|
2017
|
|
150,000,000 (2017: 150,000,000) common shares of $1.00 each
|
150,000
|
|
|
150,000
|
|
(in thousands of $, except per share data)
|
2018
|
|
|
2017
|
|
101,302,404 (2017: 101,118,289) outstanding issued common shares of $1.00 each
|
101,303
|
|
|
101,119
|
|
(in thousands of $, except per share data)
|
Shares
(in '000s)
|
|
|
Weighted average exercise price
|
|
|
Weighted average remaining contractual term
(years)
|
|
Options outstanding at December 31, 2017
|
4,017
|
|
|
$
|
37.92
|
|
|
3.0
|
Exercised during the year
|
(184
|
)
|
|
$
|
14.60
|
|
|
|
Forfeited during the year
|
(521
|
)
|
|
$
|
45.06
|
|
|
|
Lapsed during the year
|
(15
|
)
|
|
$
|
31.46
|
|
|
|
Granted during the year
|
508
|
|
|
$
|
27.20
|
|
|
|
Options outstanding at December 31, 2018
|
3,805
|
|
|
$
|
36.16
|
|
|
2.4
|
|
Year ended December 31
|
|||||||
In $'000
|
2018
|
|
|
2017
|
|
|
2016
|
|
Intrinsic value of share options exercised
|
2,621
|
|
|
286
|
|
|
1,326
|
|
Total fair value of share options fully vested in the year
|
16,623
|
|
|
13,601
|
|
|
113
|
|
|
|
|
|
|
|
|||
Compensation cost recognized in the consolidated statement of operations
|
11,748
|
|
|
8,777
|
|
|
5,830
|
|
Share options cost capitalized*
|
421
|
|
|
1,823
|
|
|
822
|
|
26.
|
ACCUMULATED OTHER COMPREHENSIVE LOSS
|
|
Pension and post retirement benefit plan adjustments
|
Share of affiliates comprehensive (loss) income
|
Total accumulated comprehensive (loss) income
|
|||
Balance at December 31, 2015
|
(12,400
|
)
|
(192
|
)
|
(12,592
|
)
|
Other comprehensive (loss) income
|
(556
|
)
|
3,606
|
|
3,050
|
|
Balance at December 31, 2016
|
(12,956
|
)
|
3,414
|
|
(9,542
|
)
|
Other comprehensive income
|
157
|
|
1,616
|
|
1,773
|
|
Balance at December 31, 2017
|
(12,799
|
)
|
5,030
|
|
(7,769
|
)
|
Other comprehensive income (loss)
|
3,581
|
|
(24,324
|
)
|
(20,743
|
)
|
Balance at December 31, 2018
|
(9,218
|
)
|
(19,294
|
)
|
(28,512
|
)
|
27.
|
FINANCIAL INSTRUMENTS
|
Instrument
(in thousands of $)
|
|
Year end
|
|
Notional value
|
|
|
Maturity dates
|
|
Fixed interest rates
|
Interest rate swaps
*
:
|
|
|
|
|
|
|
|
|
|
Receiving floating, pay fixed
|
|
2018
|
|
950,000
|
|
|
2019/ 2021
|
|
1.23% to 1.94%
|
Receiving floating, pay fixed
|
|
2017
|
|
1,250,000
|
|
|
2018/ 2021
|
|
1.13% to 1.94%
|
|
|
2018
|
|
2018
|
|
2017
|
|
2017
|
|
(in thousands of $)
|
Fair value hierarchy
|
Carrying value
|
|
Fair value
|
|
Carrying value
|
|
Fair value
|
|
|
|
|
|
|
|
||||
Non-derivatives:
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
Level 1
|
217,835
|
|
217,835
|
|
214,862
|
|
214,862
|
|
Restricted cash and short-term deposits
|
Level 1
|
486,426
|
|
486,426
|
|
397,815
|
|
397,815
|
|
Current portion of long-term debt and short-term debt
(1)(2)
|
Level 2
|
(732,184
|
)
|
(732,184
|
)
|
(1,393,229
|
)
|
(1,393,229
|
)
|
Long-term debt – convertible bonds
(2)
|
Level 2
|
(353,661
|
)
|
(373,029
|
)
|
(340,173
|
)
|
(430,361
|
)
|
Long-term debt
(2)
|
Level 2
|
(1,496,351
|
)
|
(1,496,351
|
)
|
(701,498
|
)
|
(701,498
|
)
|
Derivatives:
|
|
|
|
|
|
||||
Oil derivative instrument
(6)
|
Level 2
|
84,730
|
|
84,730
|
|
94,700
|
|
94,700
|
|
Interest rate swaps asset
(3)
|
Level 2
|
10,770
|
|
10,770
|
|
10,166
|
|
10,166
|
|
Foreign exchange swaps asset
(3)
|
Level 2
|
—
|
|
—
|
|
51
|
|
51
|
|
Foreign exchange swaps liability
(3)
|
Level 2
|
(1,322
|
)
|
(1,322
|
)
|
(223
|
)
|
(223
|
)
|
Total return equity swap liability
(3)(4)
|
Level 2
|
(70,804
|
)
|
(70,804
|
)
|
(40,141
|
)
|
(40,141
|
)
|
Earn-Out Units asset
(5)
|
Level 2
|
—
|
|
—
|
|
7,400
|
|
7,400
|
|
(1)
|
The carrying amounts of our short-term debts and loans receivable approximate their fair values because of the near term maturity of these instruments.
|
(2)
|
Our debt obligations are recorded at amortized cost in the consolidated balance sheets. The amounts presented in the table, are gross of the deferred charges amounting to $
16.8 million
and $
24.1 million
at
December 31, 2018
and
December 31, 2017
, respectively.
|
(3)
|
The fair value of certain derivative instruments is the estimated amount that we would receive or pay to terminate the agreements at the reporting date, taking into account current interest rates, foreign exchange rates, closing quoted market prices and our creditworthiness and that of our counterparties.
|
(4)
|
The fair value of total return equity swaps is calculated using the closing prices of the underlying listed shares, dividends paid since inception and the interest rate charged by the counterparty.
|
(5)
|
The Earn-Out Units were issued to Golar in connection with the IDR Reset transaction between Golar and Golar Partners in October 2016. In October 2018, Golar Partners reduced their quarterly distribution and, as such, the fair value of the Earn-Out Units was written down to $
nil
. See note 16.
|
(6)
|
The fair value of the oil derivative instrument was determined using the estimated discounted cash flows of the additional payments due to us as a result of oil prices moving above a contractual oil price floor over the term of the LTA. Significant inputs used in the valuation of the oil derivative include management’s estimate of an appropriate discount rate and the length of time to blend the long-term and the short-term oil prices obtained from quoted prices in active markets.
|
•
|
The carrying values of trade accounts receivable, trade accounts payable, accrued liabilities and working capital facilities approximate fair values because of the near term maturity of these instruments.
|
•
|
The carrying value of cash and cash equivalents, which are highly liquid, is a reasonable estimate of fair value.
|
•
|
The carrying value of restricted cash and short-term deposits is considered to be equal to the estimated fair value because of their near term maturity.
|
•
|
The estimated fair value for the liability component of the unsecured convertible bonds is based on the quoted market price as at the balance sheet date.
|
•
|
The estimated fair values for both the floating long-term debt and short-term debt to a related party are considered to be equal to the carrying value since they bear variable interest rates, which are adjusted on a quarterly or six-monthly basis.
|
•
|
The fair value measurement of a liability must reflect the non-performance of the entity. Therefore, the impact of our credit worthiness has also been factored into the fair value measurement of the derivative instruments in a liability position.
|
•
|
The fair value of the Earn-Out Units was determined using a Monte-Carlo simulation method. This simulation was performed within the Black Scholes option pricing model then solved via an iterative process by applying the Newton-Raphson method for the fair value of the Earn-Out Units, such that the price of a unit output by the Monte-Carlo simulation equaled the price observed in the market. The method took into account the historical volatility, dividend yield as well as the share price of the Golar Partners common units as of the IDR Reset date and at balance sheet date.
|
•
|
The fair value of the oil derivative instrument was determined using the estimated discounted cash flows of the additional payments due to us as a result of oil prices moving above a contractual oil price floor over the term of the LTA. Significant inputs used in the valuation of the oil derivative instrument include management’s estimate of an appropriate discount rate and the length of time to blend the long-term and the short-term oil prices obtained from quoted prices in active markets.
|
•
|
The credit exposure of interest rate swap agreements is represented by the fair value of contracts with a positive value at the end of each period, reduced by the effects of master netting arrangements. It is our policy to enter into master netting agreements with counterparties to derivative financial instrument contracts, which give us the legal right to discharge all or a portion of the amounts owed to the counterparty by offsetting them against amounts that the counterparty owes to us.
|
•
|
Our pension plan assets are primarily invested in funds holding equity and debt securities, which are valued at quoted market price. These plan assets are classified within Level 1 of the fair value hierarchy (see note 24).
|
|
Balance sheet classification
|
2018
|
|
|
2017
|
|
(in thousands of $)
|
|
|
|
|
||
Asset derivatives
|
|
|
|
|
||
Oil derivative instrument
|
Other non-current assets
|
84,730
|
|
|
94,700
|
|
Earn-Out Units asset
|
Other non-current assets
|
—
|
|
|
7,400
|
|
Interest rate swaps
|
Other current and non-current assets
|
10,770
|
|
|
10,166
|
|
Foreign exchange swaps
|
Other non-current assets
|
—
|
|
|
51
|
|
Total asset derivatives
|
|
95,500
|
|
|
112,317
|
|
Liability derivatives
|
|
|
|
|
||
Foreign exchange swaps
|
Other current liabilities
|
1,322
|
|
|
223
|
|
Total return equity swap
|
Other current liabilities
|
70,804
|
|
|
40,141
|
|
Total liability derivatives
|
|
72,126
|
|
|
40,364
|
|
|
2018
|
2017
|
||||||||||
|
Gross amounts presented in the consolidated balance sheet
|
Gross amounts not offset in the consolidated balance sheet subject to netting agreements
|
Net amount
|
Gross amounts presented in the consolidated balance sheet
|
Gross amounts not offset in the consolidated balance sheet subject to netting agreements
|
Net amount
|
||||||
(in thousands of $)
|
|
|
|
|
|
|
||||||
Total asset derivatives
|
10,770
|
|
—
|
|
10,770
|
|
10,166
|
|
—
|
|
10,166
|
|
28.
|
RELATED PARTY TRANSACTIONS
|
(in thousands of $)
|
2018
|
|
2017
|
|
2016
|
|
Management and administrative services revenue (i)
|
9,809
|
|
7,762
|
|
4,251
|
|
Ship management fees revenue (ii)
|
5,200
|
|
5,903
|
|
6,466
|
|
Charterhire expenses (iii)
|
—
|
|
(17,423
|
)
|
(28,368
|
)
|
Interest expense on short-term credit facility (iv)
|
—
|
|
—
|
|
(122
|
)
|
Share options expense recharge (vi)
|
—
|
|
228
|
|
181
|
|
Interest expense on deposits payable (vii)
|
(4,779
|
)
|
(4,622
|
)
|
(1,967
|
)
|
Total
|
10,230
|
|
(8,152
|
)
|
(19,559
|
)
|
(in thousands of $)
|
2018
|
|
2017
|
|
Trading balances owed from/ (to) Golar Partners and subsidiaries (iv)
|
4,091
|
|
(4,144
|
)
|
Methane Princess lease security deposit movements (v)
|
(2,835
|
)
|
(3,464
|
)
|
Deposit payable (vii)
|
—
|
|
(177,247
|
)
|
Total
|
1,256
|
|
(184,855
|
)
|
(in thousands of $)
|
2018
|
|
2017
|
|
Trading balances due to Golar Power and affiliates (ii)
|
(5,417
|
)
|
(935
|
)
|
Total
|
(5,417
|
)
|
(935
|
)
|
(in thousands of $)
|
2018
|
|
2017
|
|
2016
|
|
Management and administrative services revenue
|
1,399
|
|
6,463
|
|
586
|
|
(in thousands of $)
|
2018
|
|
2017
|
|
Trading balances due from OneLNG (i)
|
8,169
|
|
7,898
|
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
|
2016
|
|
The Cool Pool (i)
|
151,152
|
|
|
59,838
|
|
|
32,254
|
|
Magni Partners (ii)
|
(375
|
)
|
|
(260
|
)
|
|
(4,282
|
)
|
Total
|
150,777
|
|
|
59,578
|
|
|
27,972
|
|
(in thousands of $)
|
2018
|
|
2017
|
|
The Cool Pool (i)
|
43,985
|
|
14,004
|
|
Magni Partners (ii)
|
(8
|
)
|
6
|
|
Total
|
43,977
|
|
14,010
|
|
(in thousands of $)
|
2018
|
|
2017
|
|
2016
|
|
Time and voyage charter revenues
|
177,139
|
|
77,975
|
|
37,345
|
|
Time charter revenues - collaborative arrangement
|
73,931
|
|
28,327
|
|
13,730
|
|
Voyage, charterhire expenses and commission expenses
|
(16,717
|
)
|
(7,683
|
)
|
(7,681
|
)
|
Voyage, charterhire and commission expenses - collaborative arrangement
|
(83,201
|
)
|
(38,781
|
)
|
(11,140
|
)
|
Net income from the Cool Pool
|
151,152
|
|
59,838
|
|
32,254
|
|
29.
|
CAPITAL COMMITMENTS
|
(in thousands of $)
|
|
|
Payable within 12 months to December 31, 2019
|
21,530
|
|
|
21,530
|
|
30.
|
OTHER COMMITMENTS AND CONTINGENCIES
|
(in thousands of $)
|
2018
|
|
|
2017
|
|
Book value of vessels secured against long-term loans
|
3,244,291
|
|
|
2,032,747
|
|
31.
|
SUBSEQUENT EVENTS
|
.
|
LNTP WORKS
18
|
.
|
DELIVERY OF THE VESSEL
21
|
Appendix
|
Description
|
1A
|
Owner's Basis of Design
|
1B
|
Outline specification of conversion, Specification of dry-docking and repair work
|
1C
|
Owner Rely-Upon Information
|
1D
|
Preliminary project schedule, including key milestone dates
|
2
|
The GIMI Topsides Agreement, including its appendices
|
3
|
Price Schedule
|
4
|
OFE & owner engineering deliverables ROS dates
|
5
|
Preliminary project execution plan
|
6
|
Preliminary site health, safety and environmental management plan
|
7
|
Preliminary project quality plan
|
8
|
Approved vendor and subcontractor list
|
9
|
Administration procedure
|
10
|
Forms
|
11
|
LNTP Works and LNTP Topsides Works
|
12
|
Design, Build and Operational Readiness Requirements
|
13
|
Hold-point Checklists
|
14
|
Forms of Parent Company Guarantees
|
15
|
Owner Variation Request
|
16
|
Variation Order
|
17
|
Variation Order Proposal
|
18
|
Information Security Requirements for Suppliers
|
19
|
Localisation Plan Principles
|
20
|
Weekly and Monthly Reports
|
21
|
Step-In Agreement
|
A)
|
Pursuant to an Engineering, Procurement & Construction Contract dated 27 October 2014 entered into between the Owner and the Contractor ("
Original Contract
"), the Owner, being the then-proposed registered owner of the vessel the GIMI (the "
Vessel
"), wished to have the Vessel converted to a floating liquefied natural gas ("
FLNG
") vessel, as specified in this Agreement, by the Contractor and the Owner nominated the Sub-Contractor as the Contractor's sub-contractor to carry out the Sub-Contract Works.
|
B)
|
The Parties had entered into a series of amendment agreements to amend the Original Contract, namely:-
|
(i)
|
The First Amendment Agreement dated 4 December 2014;
|
(ii)
|
The Second Amendment Agreement dated 29 December 2014;
|
(iii)
|
The Third Amendment Agreement dated 28 February 2015;
|
(iv)
|
The Fourth Amendment Agreement dated 30 April 2015;
|
(v)
|
The Fifth Amendment Agreement dated 4 December 2015;
|
(vi)
|
The Sixth Amendment Agreement dated 22 January 2016; and
|
(vii)
|
The Seventh Amendment Agreement dated 29 February 2016.
|
C)
|
Pursuant to a technical services agreement dated 17 April 2018 ("
Technical Services Agreement
") entered into between the Owner and the Contractor, the Contractor has carried out the FEED update. The Owner is aware of another technical services agreement dated 17 April 2018 entered into between the Contractor and Black and Veatch Corporation, pursuant to which Black and Veatch Corporation was to carry out the FEED update in respect of the Sub-Contract Works.
|
D)
|
The Contractor shall carry out and be responsible for the Contractor's Scope on the terms and conditions set forth in this Agreement. The Sub-Contractor shall carry out and be responsible for the Topsides Scope as the Contractor's sub-contractor. The Contractor shall perform its own obligations under the GIMI Topsides Agreement and use reasonably practicable endeavours (in accordance with the Contractor's Scope) to procure that the Sub-Contractor performs its obligations under the GIMI Topsides Agreement.
|
E)
|
The Owner, BP Mauritania Investments Limited ("
BPMIL
") and BP Senegal Investments Limited (“
BPSIL
”) (in its capacity as the unit operator for the greater Tortue / Ahmeyim ("
GTA
") field offshore Mauritania and Senegal) (together BPMIL and BPSIL are the
"
Lessee
") shall enter into a lease and operate agreement under which the Owner will make available to the Lessee, and a wholly-owned subsidiary of the Owner will operate and maintain, the Vessel for use in the GTA Project ("
Lease and Operate Agreement
").
|
F)
|
The Owner recognises that the Contractor is reliant on the Sub-Contractor for the performance of the Topsides Scope.
|
G)
|
The Owner has had the opportunity to review and is aware of the terms of the GIMI Topsides Agreement, which has been amended and restated, or shall be amended and restated, on or about the Date of Agreement.
|
1.
|
DEFINITIONS
|
1.1
|
In this Agreement, the following expressions shall have the following meanings except where the context requires otherwise:
|
(a)
|
[*****] (as applicable); or
|
(b)
|
if the Sub-Contractor is the Party first affected by an FM Event and entitled to relief pursuant to the Gimi Topsides Agreement but the Contractor is subsequently affected by the same FM Event, [*****] (as applicable).
|
(a)
|
[*****];
|
(b)
|
[*****]; and
|
(c)
|
[*****],
|
(a)
|
any resolution is passed or order made for the winding up, dissolution, administration or reorganisation (other than a voluntary solvent reorganisation) of that person, a moratorium is declared in relation to any indebtedness of that person or an administrator is appointed to that person;
|
(b)
|
by reason of actual or anticipated financial difficulties, any composition, compromise, assignment or arrangement is made with any of its creditors;
|
(c)
|
it seeks or becomes subject to the appointment of any liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of that person or any of its assets;
|
(d)
|
it is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
(e)
|
it becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
(f)
|
it has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation which is not frivolous or vexatious and discharged within sixty (60) days or, such longer period as the Party not affected by the Insolvency Event agrees may be necessary to discharge the process);
|
(g)
|
it has a secured party take possession of any of its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against any of its assets which are the subject of an encumbrance by the beneficiary of that encumbrance, or otherwise has security enforced over it in respect of an amount in [*****], which is not frivolous or vexatious and discharged within sixty (60) days or such longer period as the Party not affected by the Insolvency Event agrees may be necessary to discharge the process;
|
(h)
|
it suspends making payments or threatens to suspend making payments in amounts in excess of [*****], on its debts generally;
|
(i)
|
by reason of actual or anticipated financial difficulties, it commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness of an amount in excess of [*****] unless the affected person demonstrates to the reasonable satisfaction of the Party not affected by the Insolvency Event within [*****] of request that such negotiations will not have a material adverse effect on its business or the ability to perform or meet its liabilities under this Agreement;
|
(j)
|
any analogous procedure or step referred to in (a) to (i) above is taken in respect of such person in any jurisdiction; or
|
(a)
|
the design, construction, fabrication, transportation, installation, commissioning, operation and / or maintenance of upstream natural gas project facilities;
|
(b)
|
the design, construction, fabrication, transportation, installation, commissioning, operation and / or maintenance of floating LNG liquefaction and offloading facilities;
|
(c)
|
LNG terminals; and / or
|
(d)
|
other floating LNG-related facilities and vessels,
|
(a)
|
if a Limited Notice to Proceed is issued, the later of [*****] from the LNTP Date and [*****] from the Commencement Date; or
|
(b)
|
if no Limited Notice to Proceed is issued, [*****] from the Commencement Date,
|
(a)
|
[*****];
|
(b)
|
[*****]; and
|
(c)
|
[*****];
|
(a)
|
[*****];
|
(b)
|
[*****]; and
|
(c)
|
[*****];
|
1.2
|
For the avoidance of doubt, the reference to "contractors and sub-contractors at all tiers" shall be a reference to each and every person or entity:-
|
(a)
|
In the case of Contractor's Group, who has been contracted by any person falling within the definition of the Contractor's Group (including such person or entity) to perform any work and/or supply any materials, equipment or services in any way whatsoever related to the performance of the Contractor's obligations or any part thereof under this Agreement; or
|
(b)
|
In the case of the Owner's Group, who has been contracted by any person, falling within the definition of the Owner's Group (including such person or entity) to perform any work and/or supply any materials, equipment or services in any way whatsoever related to or connected with the Vessel including, but not limited to, the supervision or inspection of the Vessel in its various stages of the Works or the supply and installation of equipment or machinery not within the scope of the Contractor's obligations under this Agreement or the operation of the Vessel; or
|
(c)
|
In the case of the Sub-Contractor's Group, who has been contracted by any person falling within the definition of the Sub-Contractor's Group (including such person or entity) to perform any work and/or supply any materials, equipment or services in any way whatsoever related to the performance of the Sub-Contractor's obligations or any part thereof under the GIMI Topsides Agreement.
|
1.3
|
Unless the context otherwise requires:
|
(a)
|
the singular shall include the plural and the plural the singular, and words indicating persons shall include firms and corporations;
|
(b)
|
words of any gender include each other gender;
|
(c)
|
the words "
include
" or "
including
" shall be deemed to be followed by "without limitation" or "but not limited to" whether or not they are followed by such phrases or words of like import;
|
(d)
|
references to any agreement (including without limitation this Agreement), document or instrument shall include (subject to all relevant approvals and any other provision of this Agreement expressly concerning such agreement, document or other instrument) a reference to that agreement, document or instrument as amended, supplemented, substituted, novated or assigned;
|
(e)
|
the Article headings in this Agreement, including the cover page and table of contents, are for convenience of reference only and not for purposes of construction or interpretation of its provisions; and
|
(f)
|
references to "
Article
", "
paragraph
", or "
Appendix
" are to the Articles, paragraphs and Appendices, respectively, of this Agreement.
|
1.4
|
The following documents together forming this Agreement are to be taken as mutually explanatory of one another. For the purposes of interpretation, the priority of the documents shall be in accordance with the following sequence:
|
(a)
|
Articles 1 (
Definitions
) – 54 (
Human Rights
) of this Agreement (excluding the Appendices);
|
(b)
|
Clauses 1 –68 of the GIMI Topsides Agreement;
|
(c)
|
Appendix 1A (
Owner's Basis of Design
);
|
(d)
|
Appendix 1B (
Outline specification of conversion, Specification of dry-docking and repair work
); Appendix 1C (
Owner Rely-Upon Information
), and Appendix 1D (
Preliminary project schedule, including key milestone dates
);
|
(e)
|
Appendix 3 (
Price schedule
);
|
(f)
|
All other Appendices; and
|
(g)
|
The appendices of the GIMI Topsides Agreement in the order set out in Clause 1.3 of the GIMI Topsides Agreement.
|
2.
|
EFFECTIVE DATE
|
2.1
|
With the exception of Articles 39 (
Patents, Trademarks, Copyrights Etc.
), 41 (
Confidentiality
), 43 (
Notices
), 45 (
General
), 46 (
Taxes & Duties
), 47 (
Interpretation
), and 48 (
Dispute Resolution
) (which entered into full force and effect on and from 27 October 2014), the Parties acknowledge that the provisions of this Agreement shall become effective on the satisfaction of the following:
|
(a)
|
the Contractor shall have provided to the Owner a Parent Company Guarantee and the Owner shall have provided to the Contractor a Parent Company Guarantee;
|
(b)
|
the GIMI Topsides Agreement shall have become effective pursuant to Clause 2 therein;
|
(c)
|
the PRICO® Licence Agreement shall have been executed by the Owner and Black and Veatch Corporation and all payment obligations thereunder, if any, are current;
|
(d)
|
the Owner, the Contractor and the Sub-Contractor shall have entered into the GIMI Direct Agreement;
|
(e)
|
any other payment obligations under this Agreement due before the Effective Date shall have been paid in full; and
|
(f)
|
title to the shares in the Vessel shall be transferred from Golar GIMI Limited to the Owner.
|
2.2
|
Both Parties acknowledge that all of the conditions in Article 2.1 (
Effective Date
)
have been fulfilled on the Effective Date. For the avoidance of doubt, the Parties further acknowledge that the Effective Date of the GIMI Topsides Agreement is 18 February 2015.
|
2.3
|
The Contractor and the Sub-Contractor shall only commence the LNTP Works and the LNTP Topsides Works respectively following the Owner's issuance of the Owner's Limited Notice to Proceed in accordance with Article 4 (
LNTP Works
).
|
3.
|
FEED UPDATE
|
3.1
|
The Owner has provided the Contractor and the Sub-Contractor with the Basis of Design and the Owner Rely-Upon Information for the Contractor and the Sub-Contractor to make amendments to, such amendments including those which are required to reflect the impact on the Works and Sub-Contract Works of the differences between the vessel known as the m.v. HILLI ("
HILLI
") (which has been constructed under the Engineering, Procurement and Construction Contract in respect of the HILLI dated 22 May 2014 ("
HILLI Contract
")) and the Vessel.
|
3.2
|
The Contractor has relied on the Basis of Design and Owner Rely-Upon Information in order to carry out the front-end engineering design update for the Contractor's Scope and engage the Sub-Contractor to carry out the front-end engineering design update for the Sub-Contract Works (the results of which are collectively the
"
FEED Update Report
").
|
3.3
|
The FEED Update Report has been completed and endorsed by the Owner and incorporated in Appendix 1B
(Outline, specification of conversion, Specification of dry-docking and repair work).
|
3.4
|
In the event the Owner, in its absolute discretion, revises the Basis of Design and/or Owner Rely-Upon Information after the Date of Agreement or but prior to the Contractor's receipt of the Owner's Final Notice to Proceed, the Contractor's Scope and/or the Specifications shall be modified and/or changed in accordance with Article 14 (
Variations
)
.
|
4.
|
LNTP WORKS
|
4.1
|
Unless any of the following items (a) to (b) are waived by both Parties, the Owner may give notice for the Contractor to commence performance of LNTP Works in the form attached hereto as Appendix 10 (
Forms
) ("
Limited Notice to Proceed
") at any time after the following items have occurred:
|
(a)
|
the Contractor receives payment of such amounts as are required in order for the Contractor to make payment to the Sub-Contractor under Clause 3 of the GIMI Topsides Agreement; and
|
(b)
|
the Contractor receives payment of [*****] (the "
GIMI MBC Down Payment
").
|
4.2
|
Upon the LNTP Date, but prior to the Contractor's receipt of the Owner's Final Notice to Proceed:
|
(a)
|
the Contractor shall only perform those portions of the Works which are (a) listed in Appendix 11 (
LNTP Works And LNTP Topsides Works
) of this Agreement to the extent instructed by the Owner and/or (b) as may be mutually agreed between the Owner and the Contractor (such Works shall be known as "
LNTP Works
" and set out in Appendix 11 (
LNTP Works And LNTP Topsides Works)
); and
|
(b)
|
the Contractor shall only authorise the Sub-Contractor to perform Sub-Contract Works (i) listed in Appendix 11 (
LNTP Works And LNTP Topsides Works
) of this Agreement and/or (ii) as may be mutually agreed by the Owner, the Contractor and the Sub-Contractor in accordance with Clause 3.2 of the Topsides Agreement, which agreement shall not be unreasonably delayed or withheld (such Sub-Contract Works shall be known as "
LNTP Topsides Works
").
|
4.3
|
The scope and timing of completion of the LNTP Works and the LNTP Topsides Work are set out in Appendix 11 (
LNTP Works And LNTP Topsides Works
)
of this Agreement. With respect to any vendor's cancellation costs, such cancellation costs related to LNTP Works shall be mutually agreed by the Owner and Contractor in advance and reflected in Appendix 11 (
LNTP Works And LNTP Topsides Works
).
|
4.4
|
The Owner shall pay the Contractor and the Sub-Contractor for their performance of the LNTP Works and the LNTP Topsides Work on a monthly basis in arrears or at such intervals as may be otherwise mutually agreed by the Owner, the Contractor and the Sub-Contractor. The Contractor shall submit to the Owner an invoice for the payment of the LNTP Works and the LNTP Topsides Work not later than [*****] before the date when such payment is due in order for the Owner to make the requisite payment to the Contractor and the Sub-Contractor, provided that (a) the Contractor shall apply the GIMI MBC Down Payment in respect of the amounts due for the LNTP Works up to the limit of the GIMI MBC Down Payment in accordance with this Article 4.4 (
LNTP Works
) and (b) the Sub-Contractor shall apply the GIMI Down Payment in respect of the amounts due for the LNTP Topsides Works up to the limit of the GIMI Down Payment in accordance with Clause 3.4 of the GIMI Topsides Agreement.
|
4.5
|
The LNTP Works form part of the Works and shall be performed in accordance with this Agreement.
|
4.6
|
The Contractor shall submit to the Owner an invoice for the payment of the LNTP Works not later than [*****] before the date when such payment is due in order for the Owner to make the requisite payment to the Contractor.
|
4.7
|
The Contractor shall commence the performance of and shall carry out the LNTP Works expeditiously and in accordance with Article 4 (
LNTP Works
) of this Agreement, the GIMI Direct Agreement, and such written instructions (subject to Article 14 (
Variations
)) as may from time to time be given by the Owner to the Contractor.
|
5.
|
OWNER’S FINAL NOTICE TO PROCEED
|
5.1
|
At any time after the following have occurred or been waived in writing:
|
(a)
|
the Effective Date;
|
(b)
|
all of the items in Article 4.1 (
LNTP Works
) have been fulfilled;
|
(c)
|
the "
Effective Date
" in the GIMI Topsides Agreement;
|
(d)
|
the Contractor providing evidence that all required Authorisations as are necessary for the commencement of the Works and which are the responsibility of the Contractor have been granted to the Contractor (and, if requested, evidence which is reasonably acceptable to the Owner);
|
(e)
|
the Contractor's receipt of written notices from both the Owner and the Sub-Contractor that all undisputed payment obligations under the PRICO® License Agreement and the GIMI Topsides Agreement have been satisfied;
|
(f)
|
[*****];
|
(g)
|
the Owner having demonstrated that it has secured any external finance as may be necessary (and has provided to Contractor upon request reasonable evidence that it has secured and is maintaining such finance) to fund the Works under this Agreement and the Sub-Contract Works under the GIMI Topsides Agreement, and
|
(h)
|
title to the shares in the Vessel having been transferred from the Original Owner to the Owner and evidence of such transfer has been given by the Owner to the Contractor,
|
5.2
|
Upon Contractor's receipt of the Owner's Final Notice to Proceed, the Contractor shall issue to the Sub-Contractor the FNTP (as defined in Clause 4.1 of the GIMI Topsides Agreement).
|
5.3
|
Following the Contractor's receipt of the Owner's Final Notice to Proceed, the Contractor shall have received from the Owner:
|
(a)
|
within five (5) Days, payment of a sum equivalent to the first instalment and the Payment Advance described in Articles 16.4(a) (
Contract Price and Terms of Payment
) and 16.9 (
Contract Price and Terms of Payment) (as applicable
), less any sums already paid pursuant to Article 2.1(e) (
Effective Date
); and
|
(b)
|
within three (3) Days, such amounts are required so as to enable the Contractor to pay the Sub-Contractor in accordance with Clause 4.2 of the GIMI Topsides Agreement and notify the Owner of the same.
|
5.4
|
Upon the Commencement Date, the Contractor shall commence the performance of the Works in accordance with and subject to the terms and conditions set out in this Agreement.
|
5.5
|
In the event that the Contractor does not receive the Limited Notice to Proceed by 31 December 2018 this Agreement shall be automatically terminated for the Owner's convenience on 1 January 2019 pursuant to Article 34.1 (
Termination for Convenience
), unless the Owner, the Contractor and the Sub-Contractor (pursuant to Clause 4.9 of the GIMI Topsides Agreement) agree otherwise in writing. However, the notice provisions of Article 34.1 (
Termination for Convenience
) shall not apply in such circumstance.
|
5.6
|
In the event the Commencement Date does not occur within four (4) months after the LNTP Date:
|
(a)
|
the Contractor shall be entitled to claim, for the period commencing on the date falling four (4) months after the LNTP Date until the date falling seven (7) months after the LNTP Date, its actual and reasonably incurred incremental costs (including berthing costs) and an adjustment to the Project Schedule as a consequence of the delay in issuing the Owner’s Final Notice to Proceed in accordance with Article 14 (
Variations
); and
|
(b)
|
Following the expiry of the period described in (a) above, the parties shall meet to discuss in good faith a reasonable adjustment to the Contract Price and adjustments to any other parts of the Agreement directly affected by the delay (including the Project Schedule) required as a result of the delay in issuing of the Owner’s Final Notice to Proceed.
|
5.7
|
In the event that the Contractor does not receive the Owner’s Final Notice to Proceed by 31 December 2019, this Agreement shall be automatically terminated for the Owner's convenience on 1 January 2020 pursuant to Article 34.1 (
Termination for Convenience
), unless the Owner, the Contractor and the Sub-Contractor (pursuant to Clause 4.9 of the GIMI Topsides Agreement) agree otherwise in writing. However, the notice provisions of Article 34.1 (
Termination for Convenience
) shall not apply in such circumstances.
|
6.
|
DELIVERY OF THE VESSEL
|
6.1
|
The Owner shall notify the Contractor in writing at least sixty (60) Days, thirty (30) Days and fifteen (15) Days in advance of the arrival of the Vessel at the Yard.
|
6.2
|
The Owner shall deliver the Vessel to the Contractor no later than one (1) month after the Commencement Date with its tanks emptied, cleaned and gas-freed, as necessary in order for the Vessel to enter the Yard.
|
6.3
|
Upon Delivery of the Vessel by the Owner to the Contractor, the Owner shall execute a declaration that ownership of the Vessel vests in the Owner or the Original Owner and the Vessel is free and clear of all mortgages, liens, charges, encumbrances and other claims whatsoever, and shall undertake, at its cost and expense, to maintain such status of the Vessel until Vessel Leaving The Yard (other than a mortgage (or security interest) in favour of the Owner’s credit providers to be duly notified to the Contractor).
|
6.4
|
Upon Delivery, the Parties shall execute the Delivery Certificate to evidence the delivery of the Vessel and the date thereof, whereupon Delivery shall have been accomplished.
|
6.5
|
Not later than Delivery, the Owner shall, at its own cost and expense, forthwith engage the Classification Society to determine and certify whether any repair and life extension works, additional to those set out in Appendix 2 (
The GIMI Topsides Agreement
) will be required in respect of the Vessel. If additional work or repairs are required in respect of the Vessel, such additional work or repairs may if the Owner so requires be incorporated as part of the Works by a Variation Order in accordance with Article 14 (
Variations
).
|
6.6
|
From Delivery to the time of Vessel Leaving The Yard in accordance with Article 21 (
Vessel Leaving the Yard
) the Vessel shall be in the possession of and at the risk of the Contractor, but title to the Vessel shall remain with the Owner.
|
6.7
|
For the avoidance of doubt, the Owner shall be responsible for all port dues incurred by the Vessel.
|
7.
|
PERFORMANCE OF THE WORKS
|
7.1
|
The Contractor shall perform the Works in accordance with:
|
(a)
|
Prudent Engineering and Construction Practice (including in the international maritime and oil and gas industries);
|
(b)
|
the requirements of the Classification Society;
|
(c)
|
the Specifications;
|
(d)
|
Applicable Laws;
|
(e)
|
the rules, regulations and requirements of the Regulatory Body as at the Date of Agreement; and
|
(f)
|
any other requirements of this Agreement.
|
7.2
|
Without prejudice to the generality of Article 7.1 (
Performance of the Works
), the Contractor shall be responsible for the conduct of the Works and shall:
|
(a)
|
provide suitably qualified and competent personnel; and
|
(b)
|
to the extent not otherwise expressly provided for:
|
(i)
|
in this Agreement, perform the Works in a manner consistent with relevant International Standards (which shall be selected by the Contractor); and
|
(ii)
|
in the GIMI Topsides Agreement, procure that the Sub-Contractor performs the Sub-Contract Works in a manner consistent with International Standards (which shall be selected by the Sub-Contractor);
|
(c)
|
be responsible for the adequacy of the HSSE standards in accordance with the HSSE Plan (to the extent applicable to the Works) that is to be implemented in connection with the performance of the Works.
|
7.3
|
The Sub-Contractor shall perform the Sub-Contract Works. The Owner shall co-operate with the Contractor in the efficient and timely performance of this Agreement and the GIMI Topsides Agreement so as to avoid any unnecessary cost or expense to the Contractor and any unnecessary impact on the Works.
|
7.4
|
The Owner recognises and accepts that the Contractor is reliant on the Owner-nominated Sub-Contractor for the performance of the Sub-Contract Works and does not have the capability to perform the Sub-Contract Works itself. It is the intention of the Parties that the Contractor does not undertake any of the obligations of the Sub-Contractor under the GIMI Topsides Agreement, but that the Works shall include but not be limited to the management and co-ordination of the Sub-Contract Works, including expediting the Sub-Contractor and the assembly, installation and integration of the Equipment in accordance with Prudent Engineering and Construction Practice.
|
7.5
|
All equipment and materials supplied by the Contractor in the performance of its obligations under this Agreement shall be new and unused (unless agreed otherwise), originally manufactured with certificates of quality and of the Classification Society where normally available.
|
7.6
|
All old parts and equipment of the Vessel shall remain the property of the Owner and may be removed by the Owner if it wishes. All materials scrapped except the shaft and propeller shall become the property of the Contractor.
|
8.
|
DESIGN RESPONSIBILITY
|
8.1
|
The Owner shall at all times remain and be responsible for the Basis of Design and the Owner Rely-Upon Information, including any subsequent amendments or supplements of the same. Where not specifically addressed elsewhere in this Agreement, the HILLI design principles shall be adopted as the basis for the detailed engineering development of the Vessel.
|
8.2
|
The Contractor shall at all times remain and be responsible for all design and engineering within the Contractor's Scope, subject to Article 8.1 (
Design Responsibility
).
|
8.3
|
It is acknowledged by the Parties that the Specifications in respect of the Contractor's Scope set out in Appendix 1B (
Outline Specification Of Conversion, Specification Of Dry-Docking And Repair Work
) shall be developed by the Contractor pursuant to the FEED Update Report which was based on and from the Basis of Design and Owner Rely-Upon Information provided by the Owner. The Contractor shall perform the detailed engineering for the Contractor's Scope based on Appendix 1B (
Outline Specification Of Conversion, Specification Of Dry-Docking And Repair Work
) and all other requirements in this Agreement. Notwithstanding the above, the Parties acknowledge that certain portions of the Contractor's Scope have been developed in reliance by the Contractor on information provided to it by the Sub-Contractor.
|
8.4
|
It is acknowledged by the Parties that the Specifications in respect of the Topsides Scope set out in Appendix 2 (
Topsides Agreement
) have been developed by the Sub-Contractor pursuant to the FEED Update Report which was based on and from the Basis of Design and the Owner Rely-Upon Information.
|
9.
|
CLASSIFICATION, CERTIFICATION AND DOCUMENTATION
|
9.1
|
The Works shall so far as applicable be performed in accordance with the rules (the edition and amendments thereto being in force as of the Date of Agreement) of the Classification Society and the Vessel shall be converted to the notation:
|
9.2
|
The Equipment and Sub-Contract Works are to be certified to be in accordance with DNVGL-OS-E201 ("Oil and Gas Processing Systems", as at July 2017). Where the Certification Body requires further certification of equipment beyond that listed in Appendix L (
Approval Document List
) and Appendix M (
Equipment and Material with DNV Certification Levels
) of the GIMI Topsides Agreement in order for the topsides to achieve compliance with DNVGL-OS-E201, the Contractor shall be entitled to claim such costs from the Owner as the Sub-Contractor is entitled to claim from the Contractor under the GIMI Topsides Agreement.
|
9.3
|
Decisions of the Classification Society as to compliance or non-compliance of the Works with its requirements shall be final and binding upon both Parties.
|
9.4
|
The Works shall also comply with Applicable Laws and with the rules, regulations and the requirements of the Regulatory Body in each case as in force at the Date of Agreement. Machinery and/or equipment supplied by the Contractor as part of the Works shall be provided with such maintenance/operation manuals, drawings, standard maker's tools and spare parts, and maker's certificate of origin as the Contractor may receive at no extra cost to it from the vendor.
|
9.5
|
All fees and charges incidental to the classification and with respect to compliance with the above referred Applicable Laws, rules, regulations and requirements in respect of the Contractor's Scope shall be for the account of the Contractor. The Owner shall be responsible for all fees and expenses of the Classification Society save in respect of equipment certification.
|
9.6
|
The Owner shall at its own cost and expense keep the Vessel registered under the laws of the Regulatory Body from Delivery until Redelivery.
|
9.7
|
The GIMI Topsides Agreement provides that the Sub-Contractor shall deliver where appropriate certification of the Certification Body of the compliance of the relevant Equipment and Sub-Contract Works with DNVGL-OS-E201.
|
10.
|
FACILITIES FOR THE OWNER AT THE YARD
|
10.1
|
Within thirty (30) Days of the Commencement Date and until Redelivery, the Contractor shall provide the following facilities at the Yard for use by the Owner:-
|
(a)
|
Office space for up to [*****] employees of the Owner;
|
(b)
|
Office space for up to [*****] employees of the Lessee;
|
(c)
|
Two (2) international telephone and facsimile lines each;
|
(d)
|
One (1) facsimile/scanner/photocopier machine; and
|
(e)
|
Electronic mail facilities, including internet broadband connection complete with two standalone computers.
|
10.2
|
The Owner shall pay for all international telephone, facsimile, electronic mail and internet charges incurred by it. The Contractor shall pay for all domestic telephone and facsimile charges incurred by the Owner.
|
10.3
|
The Contractor shall provide additional office space for up to [*****] persons for one year prior to Redelivery.
|
11.
|
SUB-CONTRACTING
|
11.1
|
Except as provided in this Article 11 (
Sub-Contractin
g), Contractor may not subcontract part of the Works to any third party without the prior written consent of the Owner, such consent not to be unreasonably withheld. The Contractor:
|
(a)
|
shall only subcontract the Sub-Contract Works and the LNTP Topsides Works to the Sub-Contractor;
|
(b)
|
may subcontract the Works freely to any of its Resident Subcontractors and Affiliates;
|
(c)
|
shall nominate any subcontractor, supplier or vendor from the Approved Vendor list for equipment it intends to procure. The Owner may within 7 Days require the Contractor to select a different subcontractor, supplier or vendor from the list, carrying, through a Variation Order, any cost difference and schedule impact, which is to be reasonably proven by the Contractor. If the Contractor wishes to procure any equipment that is not listed in Approved Vendor list
,
the Contractor shall obtain the prior written approval from the Owner, which shall not be unreasonably withheld or delayed; and
|
(d)
|
may not in the performance of the Works use or procure any materials or equipment which has been produced in Bangladesh or is supplied by a Bangladeshi supplier, vendor or subcontractor.
|
11.2
|
The Contractor shall neither sub-contract nor delegate any portion of the Works (except to subcontractors or suppliers on the Approved Vendor List) which (a) have a value in excess of [*****] or (b) are on the list of Safety Critical Works without the consent of the Owner. Prior to seeking such consent, the Contractor shall:
|
(a)
|
notify the Owner of its intention to enter into any subcontract, providing details of the proposed subcontractor including trading names, nature of materials, plant, equipment and/or services to be procured, for that part of the Works which the Contractor wishes to subcontract;
|
(b)
|
provide the Owner, upon request, with copies of the terms and conditions of any contract (with sensitive commercial information redacted);
|
(c)
|
provide the Owner with such information in relation to each proposed subcontractor as the Owner may reasonably require; and
|
(d)
|
conduct appropriate risk based due diligence (including by way of the Contractor's own internal due diligence procedures which have been approved by the Owner) on a proposed sub-contractor including on the ability of the proposed sub-contractor to perform that part of the Works which the Contractor wishes to subcontract, and, on the first (1st) anniversary of the signing date of that sub-contractor's subcontract with Contractor, and annually thereafter, the Contractor shall undertake a risk based review to ensure the sub-contractor remains suitable (technically, financially and from a compliance perspective) to perform that part of the Works they are subcontracted to engage in.
|
11.3
|
The Contractor shall respond to any request for approval pursuant to this Article 11 (
Sub-Contracting
) and Clause 53 of the GIMI Topsides Agreement within [*****] following the date of the Contractor's request and within [*****] following the date the Owner receives, as forwarded by the Contractor, the Sub-Contractor's request made pursuant to Clause 53 of the GIMI Topsides Agreement.
|
11.4
|
Subcontracting of all or any part of its obligations under this Agreement shall not relieve the Contractor from any of its obligations under this Agreement and the Contractor shall be responsible, only in the performance of the Works, for the acts or defaults of any of its subcontractors (other than the Sub-Contractor), its agents or employees, as if they were the acts or defaults of the Contractor itself.
|
11.5
|
The Contractor shall ensure that any sub-contract it enters into and, to the extent the Owner deems necessary, any sub-sub-contract entered into contains:
|
(a)
|
provisions ensuring that the sub-contractor complies with the Localisation Plan (to the extent the Owner requires for the commissioning or warranty related activities performed in the Countries) and applicable laws;
|
(b)
|
provisions permitting the Inspection Parties to monitor the performance of the Works in accordance with Article 12.4 (
Inspection and Testing
);
|
(c)
|
only to the extent directed by the Owner prior to entry into the subcontract (after discussing with the Contractor (in the case of subcontractors or suppliers on the Approved Vendor List, to discuss and create a list within [*****] from the LNTP Date), provisions for the novation of such directed or listed subcontracts to the Lessee on termination of the Lease and Operate Agreement;
|
(d)
|
anti-bribery and corruption and human rights obligations equivalent to those set out in Article 35 (
Business Principles
) and Article 54 (
Human Rights
);
|
(e)
|
rights for the Inspection Parties to audit the subcontractor's records to the same extent as the Owner is entitled to in accordance with Article 52 (
Audit
);
|
(f)
|
obligations of confidentiality equivalent to those set out in Article 41 (
Confidentiality
); and
|
(g)
|
where the subcontractors will have direct or indirect access to the Lessee's Confidential Information and/or IT systems (whether through email or other form of electronic communication or otherwise), digital security obligations equivalent to those set out in Article 53 (
Digital Security
).
|
12.
|
SUPERVISION, DRAWINGS, APPROVAL & INSPECTION & TESTS
|
12.1
|
The Owner shall, promptly following the LNTP Date or the Commencement Date (where no Owner's Limited Notice to Proceed is issued), appoint at its own cost and expense, to the extent required by Prudent Engineering and Construction Practice, a properly qualified, competent and experienced representative who shall be duly authorized for and on behalf of the Owner (the "
Owner's Representative
",which person may be replaced by written notice to the Contractor from time to time) to supervise the Works. The Owner's Representative shall have full authority to act for and on behalf of the Owner in all matters connected with this Agreement, to approve drawings, Plans, documentation, attend all tests and inspect all workmanship, equipment and materials during the course of the performance of the Works. The Owner's Representative shall have full and free access at all reasonable times to inspect, check, request copies of calculations and samples of materials and make test of the Works as they are performed and shall inform the Contractor as soon as practicable if any particulars of the Works inspected do not comply with this Agreement. For all such purposes, the Owner's Representative shall be given full and free access to the Yard and such other places of business of the Contractor (subject to compliance with safety rules and other work regulations applicable to such places) and its subcontractors, if any, and the Contractor shall ensure that such subcontractors are informed of the Owner's Representative's rights of access to their premises for such purposes. Failure of the Owner's Representative to inspect or to call to the attention of the Contractor any particulars in which the Works do not comply with this Agreement shall in no way relieve the Contractor of its obligations under this Agreement. The Owner may by notice in writing inform the Contractor of any change in its appointment of the Owner's Representative at any time at its own discretion.
|
12.2
|
The Owner's Representative may delegate any of his powers to attend tests, inspect workmanship, equipment and materials to another properly qualified, competent and experienced person and to the extent that it elects to do so, the Contractor shall be entitled to rely on the actions of such person as if he were the Owner's Representative for the purposes of the matters delegated to him.
|
12.3
|
The Contractor shall, promptly following the LNTP Date or the Commencement Date (where no Owner's Limited Notice to Proceed is issued), appoint and maintain at the Yard at its own cost and expense a properly qualified, competent and experienced representative (the "
Contractor's Representative
") to whom all enquiries of the Owner's Representative shall be directed. The Contractor's Representative shall have full authority to act for and on behalf of the Contractor in all matters connected with this Agreement. The Contractor's Representative shall remain in this capacity and, so long as he remains in the Contractor's employ, shall not be relieved until completion of the Works except upon prior written consent of the Owner, which shall not be unreasonably withheld or delayed.
|
12.4
|
The Contractor's Representative and the Sub-Contractor’s Representative shall meet at reasonable intervals with the Owner’s Representative to discuss (a) the Sub-Contract Works and (b) any possible impact or interaction which the Works may have on the Sub-Contract Works.
|
12.5
|
All Plans required for the Works pursuant to this Agreement, shall be submitted to the Owner in one (1) electronic copy. Without prejudice to the generality of the foregoing, all as-built drawings shall be submitted to the Owner in one (1) hard copy and one (1) electronic copy.
|
12.6
|
The Owner shall within twelve (12) Days after receipt thereof return to the Contractor one (1) copy of such Plans with the Owner's approval or with the Owner's remarks and amendments (if any) written thereon. If no Owner comments are received within such period, the Contractor may continue on the basis that the Owner is deemed to have approved the submittal.
|
12.7
|
If the Owner makes any remarks or amendments in accordance with Article 12.6 (
Supervision, Drawings, Approval & Inspection & Tests
), the Contractor shall review and resubmit such Plans and resubmit a revised Plan as appropriate in one (1) copy for further review by the Owner within five (5) Business Days. The scope of such second (and, if applicable, any subsequent) review of any resubmitted Plan shall be limited to the ambit of the Owner's remarks and amendments of the previously submitted Plan and any subsequent review of the later Plan shall be subject to such limitation of the scope of review. The period for the second (and, if applicable, any subsequent) review shall not exceed six (6) Days after receipt of the resubmitted Plans from the Contractor. If no Owner comments are received within such period, the Contractor may continue on the basis that the Owner is deemed to have approved the submittal.
|
12.8
|
The Contractor shall take due note of the Owner's remarks and amendments (if any) on the Plans submitted (or resubmitted) pursuant to this Article 12 (
Supervision, Drawings, Approval & Inspection & Tests
) and if such remarks or amendments are not of such a nature or extent as to constitute modifications to the Specifications, then the Contractor shall commence or continue the Works in accordance with the corrected or amended Plans. If such remarks or amendments are not clearly specified or detailed, the Contractor shall be entitled to seek clarification of the same from the Owner before implementing the same. The Owner's acceptance or approval of such Plans shall not relieve the Contractor of its obligation to comply with the terms of this Agreement.
|
12.9
|
The Contractor shall arrange for the inspections and tests referred to in the ITP Plan to be carried out and ensure that all inspection and testing are carried out as require by the Classification Society, and as may otherwise be required under this Agreement to discover any deviations from the Specifications, or any defects in the Works or the Sub-Contract Works. The Owner's Representative shall have, during the repair, modification and conversion of the Vessel, the right to attend such tests and inspections of the Works and of the Sub-Contract Works to the extent provided in the GIMI Topsides Agreement.
|
12.10
|
The Owner's Representative may inspect the Works and equipment and materials supplied as part of the Works wherever the Works are being performed or the equipment and materials are being stored (including the Yard's workshops, stores and offices of the Contractor or its subcontractors) to determine whether the Works are being performed in accordance with this Agreement and the Specifications.
|
12.11
|
The Contractor shall provide to the Owner, for the Owner's approval, (A) the ITP Plan by one (1) month after the Commencement Date and (B) the FAT plan by six (6) months after the Commencement Date.
|
12.12
|
The Contractor shall, in relation to the Works which take place solely in the Yard, give the Owner's Representative at least one (1) Business Day's prior written notice of each inspection or test to be conducted at the Yard, and three (3) Days’ prior written notice for any other inspection or test which the Owner's Representative separately identifies sufficiently in advance in writing as requiring such notice. In relation to the Sub-Contract Works which take place solely in the Yard, the Contractor shall give notice to the Owner's Representative within one (1) Business Day of the Contractor's receipt of notification from the Sub-Contractor of each inspection or test to be conducted. Provided such notice is given, the Contractor may proceed with any inspection or test which the Owner's Representative fails to attend. The Owner shall be bound in such circumstances to accept the result of any such inspection or test although such result will still have to satisfy the requirements of the Classification Society to the extent required under this Agreement. The Owner (or its representatives) shall have no right to instruct the Sub-Contractor with regards to any portion of the Sub-Contract Works.
|
12.13
|
In relation to any Works which take place outside the Yard, the Contractor shall give the Owner's Representative at least fifteen (15) Days' prior notice of the proposed date, and for those tests and inspections which the Owner's Representative confirms that it wishes to attend, five (5) Days' prior notice of the actual date of such Works.
|
12.14
|
The Contractor shall:
|
(a)
|
permit such representatives of the Lessee, the Co-Venturers and the governments of each of the Countries, as may be notified to the Contractor from time to time (the "
Inspection Parties
") to attend tests and inspections provided to the Owner's Representative pursuant to this Article 12 (
Supervision, Drawings, Approval & Inspection & Tests
); and
|
(b)
|
with the Contractor's prior written consent (such consent not to be unreasonably withheld), provide access to the Works for inspection or attendance at tests for the Inspection Parties upon reasonable advance notice from the Owner, provided that the Inspection Parties have undertaken such health, safety and security training as may be reasonably required by the Contractor and comply with Contractor's safety program.
|
12.15
|
The Contractor shall, up to the Redelivery Date, use reasonable endeavours to assist the Owner in enabling the Lessee to:
|
(a)
|
evaluate the progress of the Works against the Project Schedule; and
|
(b)
|
respond to queries from LNG buyers and/or potential LNG buyers and their representatives.
|
13.
|
PROGRESS REPORTING AND HOLD POINTS
|
13.1
|
The Contractor shall submit detailed monthly progress reports for the Works to the Owner containing a description of:
|
(a)
|
the work performed during the month, including a comparison of the current progress as compared with scheduled progress, together with a narrative on each item of the work;
|
(b)
|
any present or anticipated slippage or other problem and the steps being taken to overcome it; and
|
(c)
|
without prejudice to the generality of the foregoing, the information required in Part 2 of Appendix 20 (
Weekly and Monthly Reports
).
|
13.2
|
From the Commencement Date, the Contractor shall also submit to the Owner a weekly progress summary report based on the information produced by the Contractor for its internal purposes and containing the information required in Part 1 of Appendix 20 (
Weekly and Monthly Reports
).
|
13.3
|
The Contractor shall submit to the Owner copies of the progress reports for the Sub-Contract Works received from the Sub-Contractor.
|
13.4
|
Under the Lease and Operate Agreement, the Owner is required to obtain a confirmation from the Lessee of satisfactory completion of interim requirements at or immediately prior to certain points in the Project Schedule. The following events are "
Hold-points
" or "
Review-points
", as the case may be:
|
(a)
|
[*****];
|
(b)
|
[*****];
|
(c)
|
[*****];
|
(d)
|
[*****];
|
(e)
|
[*****]; and
|
(f)
|
[*****].
|
13.5
|
The Parties agree that the [*****] has been completed prior to execution of this Agreement.
|
13.6
|
Each Hold-point and Review-point shall be achieved when the criteria of the relevant Hold and Review-point Criteria have been satisfied (as determined solely by reference to the written requirements of the relevant Hold and Review-point Criteria), each as shall be confirmed by the Lessee to the Owner and notified by the Owner to the Contractor without undue delay. The Contractor shall in turn forward such notice (or the notice referred to in Article 13.7 (
Progress Reporting and Hold Points
), as the case may be) to the Sub-Contractor without undue delay. The Contractor shall (a) not proceed with the Works beyond any Hold-point and (b) procure that the Sub-Contractor shall not proceed with the Sub-Contract Works until such time as Owner has confirmed that the relevant Hold-point has been achieved provided however that the Contractor and the Sub-Contractor may proceed with the Works and Sub-Contract Works respectively at a Review-point.
|
13.7
|
In the event the Owner notifies the Contractor that the Lessee has not issued a required Hold-point or Review-point confirmation, and thus that the Hold-point or Review-point has not been achieved, duly authorised representatives of the Owner, and Contractor and/or the Sub-Contractor shall meet and discuss in good faith the steps required to achieve the relevant Hold-point or Review-point, promptly following notification from the Owner.
|
13.8
|
If the parties cannot agree on (i) whether the Hold-point or Review-point has been achieved or (ii) the extent to which the failure to achieve the Hold-point or Review-point is due to the Contractor's performance of the Works, the parties agree such disputes shall be resolved by amicable settlement in accordance with Article 48.2 (
Amicable Settlement
) and, failing agreement, an Independent Expert in accordance with Article 48.3 (
Expert Determination
).
|
13.9
|
If the Contractor is impacted in performing the Works beyond a Hold-point due to failure to achieve the Hold-point and to the extent such failure is not due to the Contractor's acts, omissions or default, the Contractor shall be entitled to a Variation Order.
|
14.
|
VARIATIONS
|
14.1
|
The Owner shall be entitled, at any time, by notice in writing (each such notice hereinafter a "
Variation Request
"), to make a Variation or Variations to the Works and to require the Contractor to do whatever is necessary to effect any Variation and to do whatever may be incidental thereto. Notwithstanding the foregoing, Owner may not make Variation Requests that increase the Works beyond the intent of the original scope.
|
14.2
|
No change in the Contractor's Scope shall be made and no additional work shall be performed by the Contractor until a Variation Order has been written, dated and signed for identification by the authorised representatives of both Parties. The Contractor shall thereafter forthwith carry out such Variations in accordance with the Owner's requirements, and shall ensure that such Variations also comply with all applicable requirements of this Agreement.
|
14.3
|
Within seven (7) Days from the Contractor's receipt of a Variation Request (provided always that the Variation Request is clear and the details thereof are sufficient for the Contractor to work out the Variation required), the Contractor will give notice to the Owner in writing of the alteration to the Specifications and (if any) to the Contract Price and/or the Project Schedule. The Owner shall notify the Contractor in writing within three (3) Days of receipt of the Contractor's notice whether or not it agrees to the change being carried out on such terms. A Variation Order shall be signed by the Parties if the Owner agrees to the change, otherwise the Contractor shall not make the change.
|
14.4
|
Further, if the Owner makes remarks or amendments on Plans or drawings submitted by the Contractor or requests the performance of specific work which in the Contractor's reasonable opinion is not part of its obligations under this Agreement, then the Contractor may issue a notice in writing to the Owner setting out in sufficient detail the Variation Order which the Contractor believes it is entitled to and any adjustment to the Contract Price and/or Project Schedule and/or any other provision of this Agreement and/or the Specifications which the Contractor requires before performing the Variation. The Owner shall notify the Contractor in writing within three (3) Days of receipt of the Contractor's notice whether or not it agrees to the Variation being carried out on such terms. A Variation Order shall be signed by the Parties if the Owner agrees to the change, otherwise the Contractor shall not make the change.
|
14.5
|
Notwithstanding Article 14.2 (
Variations
), where a change and/or modification is to be made to the Contractor's Scope (but not the Sub-Contract Works), the Owner shall, subject to the limitations expressed in this Article 14 (
Variations
), have the right to instruct the Contractor to perform such change (a "
Directed Change
"). The difference between the Contractor's and the Owner's proposed adjustment to the Contract Price shall be known as the "
Disputed Difference
". The Owner shall not be entitled to issue a Directed Change, nor shall the Contractor be obliged to perform a Directed Change, where the Disputed Difference in respect of all Directed Changes (including the proposed Directed Change) exceeds the aggregate sum of five million Dollars ($5,000,000). A Directed Change shall be paid for monthly by the Owner to the Contractor on a time and materials, cost plus basis in accordance with Appendix 3 (
Price Schedule
) pending resolution of the Disputed Difference.
|
14.6
|
If the Owner requests engineering services from Contractor in the preparation of a Variation and the Owner elects not to issue a Variation Order, the Owner shall compensate Contractor for its costs in the preparation and submittal of information and documents in response to the Owner's request at the rates set out in Appendix 3 (
Price Schedule
). If requested by the Owner, Contractor shall provide a cost estimate prior to responding to any of the Owner's request which may amount to a Variation.
|
14.7
|
For modifications and/or changes agreed in a Variation Order to be performed on a lump-sum basis, payment shall be made by the Owner, unless otherwise agreed, in two instalments: [*****].
|
14.8
|
For Variations performed on a unit rate, time-and-materials, or cost-plus basis, payment shall be made by the Owner at the end of every calendar month in accordance with the work performed pursuant to such Variations in that month.
|
14.9
|
In the event that any of the materials required by the Specifications or otherwise under this Agreement for the Contractor's Scope cannot be procured in time or are in short supply to maintain the Project Schedule, the Contractor may, provided that the Owner shall so agree in writing, supply other materials capable of meeting the requirements of the Classification Society and of the rules, regulations and requirements with which the repair, modification and conversion of the Vessel must comply. Any agreement as to such substitution of materials shall be effected in the manner provided in this Article 14.9 (
Variations
) and shall likewise include alterations in the Contract Price and Project Schedule and other terms and conditions of this Agreement occasioned by or resulting from such substitution.
|
14.10
|
Notwithstanding anything to the contrary in this Article 14.10 (
Variations
), as regards the Sub-Contract Works, the Contractor shall have no obligation to instruct the Sub-Contractor to carry out such Variations unless: (i) it is entitled to demand such Variations from the Sub-Contractor; (ii) the Sub-Contractor and the Contractor agree a Variation Order in accordance with the GIMI Topsides Agreement; and (iii) a Variation Order is signed by the Owner and the Contractor as provided above. The Owner shall reimburse the Contractor for the cost to the Contractor of making Variations within thirty (30) Days of the Contractor's invoice. In the event that the only disagreement between the Owner and the Contractor is the impact of a proposed Variation the Sub-Contract Works on the Topsides Price, the Owner may instruct the Contractor to instruct the Sub-Contractor to perform the Variation in accordance with Clause 38 of the GIMI Topsides Agreement.
|
14.11
|
The Contractor shall be entitled to make a claim for a Variation under this Article 14.11 (
Variations
) to the extent expressly permitted to do so under this Agreement (including as contemplated in Article 14.14 (
Variations
)). Any such claim for Variations by the Contractor shall be fair and reasonable and shall be fully supported by accurate facts and documents in substantiation of each such claim. Further, the Owner acknowledges that changes that result from reviews such as HAZOP are to be treated as a Variation, in accordance with Article 15.3 (
Errors and Changes
).
|
14.12
|
Not used.
|
14.13
|
Any adjustment of the Contract Price as envisaged herein may involve a decrease in the Contract Price.
|
14.14
|
The Contractor shall also be entitled to a Variation Order where the terms of this Agreement expressly entitle it to a Variation Order or in respect of any additional work or delays caused by:
|
(a)
|
any failure of the Sub-Contractor or the Owner or any contractor engaged by the Owner to comply with its obligations under this Agreement resulting in an impact on the Contractor;
|
(b)
|
changes in applicable standards from those applicable at the Date of Agreement;
|
(c)
|
Change in Law after the Date of Agreement;
|
(d)
|
delays that are caused by a FM Event;
|
(e)
|
any changes to the Owner Rely-Upon Information or any changes, error, defect, omission, ambiguity or discrepancy in the Basis of Design;
|
(f)
|
where the Owner directs that the Contractor should use a different International Standard than that proposed by the Contractor pursuant to Article 7.2(b)(i) (
Performance of the Works
);
|
(g)
|
a technical dispute in respect of which the Classification Society upholds the Contractor's views;
|
(h)
|
defects that could not be detected by the Contractor using reasonable care and diligence;
|
(i)
|
a delay to the Contractor's Scope resulting from events within the control of the Owner and/or any third party; or
|
(j)
|
the Sub-Contractor being entitled to a Variation Order.
|
14.15
|
If:
|
(a)
|
A Variation Request is made as a result of a Lessee Request or Owner Request under the Lease and Operate Agreement; or
|
(b)
|
The Owner makes a Variation Request under Article 14.1 (
Variations
) or the Contractor is entitled to a Variation under Article 14.4 (
Variations
), 14.11 (
Variations
) or 14.14 (
Variations
), and the Owner acting reasonably determines that such Variation Request or Variation is based on a matter that entitles a variation under the Lease and Operate Agreement,
|
14.16
|
At any time after the Commencement Date but before Final Acceptance (and thereafter to the extent the Parties acting reasonably agree), the Owner may forward to the Contractor a "
Lessee Request
" or "
Owner Request
" each as made in writing pursuant to the Lease and Operate Agreement by Lessee or Owner respectively, in the form set out in Appendix 15 (
Owner Variation Request
), requesting the Contractor to make a Variation to the Works ("
Lessee Variation Request
"). Where the Lessee Variation Request forwarded by the Owner contemplates a Variation to the Sub-Contract Works, the Contractor shall in turn forward such Lessee Variation Request to the Sub-Contractor without undue delay.
|
14.17
|
Each Lessee Variation Request shall be sequentially numbered in accordance with the order in which such Variation Request is issued.
|
14.18
|
Upon receipt of a Lessee Variation Request, the Contractor shall:
|
(a)
|
acknowledge receipt of the Variation Request within [*****] after receipt of the Lessee Variation Request; and
|
(b)
|
submit to the Owner a Variation Order Proposal in accordance with the principles set out in Appendix 17 (
Variation Order Proposal
).
|
14.19
|
The Contractor shall submit to the Owner a Variation Order Proposal within [*****] (or such other period as the Parties may agree acting reasonably) after receipt of a Lessee Variation Request.
|
14.20
|
Not used.
|
14.21
|
If the Contractor receives a Lessee Variation Request and the Contractor determines, acting reasonably, that preparing a Variation Order Proposal will require Contractor to incur costs of more than [*****], then:
|
(a)
|
the Contractor shall notify the Owner;
|
(b)
|
the Owner shall notify the Contractor to confirm that the Contractor shall prepare the Variation Order Proposal and reimburse the Contractor for its costs in doing so; and
|
(c)
|
the Contractor shall commence work to prepare the Variation Order Proposal within [*****] of receipt of such Variation Request).
|
14.22
|
The Contractor may give notice to the Owner at any time rejecting a Lessee Variation Request (including a reasonably detailed written statement of the reasons for such rejection) if implementing the Variation requested by the Variation Request would:
|
(a)
|
jeopardise the technical, structural or operational integrity of the Vessel;
|
(b)
|
result in the Vessel ceasing to comply with the requirements of the Classification Society in effect from time to time;
|
(c)
|
increase the Works beyond the intent of the original scope;
|
(d)
|
require the Contractor to establish a legal presence or obtain applicable Authorisations to perform the Works in the Countries; and/or
|
(e)
|
cause the Contractor to be in breach of any applicable laws in effect from time to time.
|
14.23
|
If the Contractor gives notice to the Owner pursuant to Article 14.22 (
Response to Variation Request
), then duly authorised representatives of the Sub-Contractor, the Owner and the Contractor will meet and discuss in good faith the Contractor's rejection of the Lessee Variation Request and any potential alternatives to the rejected Lessee Variation Request.
|
14.24
|
In response to a Lessee Variation Request, the Contractor shall prepare a Variation Order Proposal in the form, and in accordance with the principles, set out in Appendix 17 (
Variation Order Proposal
).
|
14.25
|
Unless the Contractor and the Owner otherwise agree, the costs of implementing any Variation Order Proposal (the "
Variation Cost
") shall be proposed by the Contractor in accordance with the principles set out in Appendix 17 (
Variation Order Proposal
) and Articles 14.25 to 14.28 (
Variation Cost)
.
|
14.26
|
The Owner shall pay the Variation Cost to the Contractor in accordance with the schedule for payment set out in the Variation Order. If the schedule is silent, the Variation Cost shall be payable in two instalments: [*****].
|
14.27
|
Any Variation Costs resulting from a Lessee Variation Request that is required as a result of the verification of the design and build pursuant to Appendix 12 (
Design, Build and Operations Readiness Requirements
) following which the Owner and the Contractor, acting reasonably, agree that the Work should be modified in order to ensure compliance with Appendix 1A (
Basis of Design
) shall be for the account of the Contractor.
|
14.28
|
If:
|
(a)
|
the actual cost of performing a Variation is in excess of what the Parties agreed the impact of the Variation would be pursuant to this Article 14 (
Variations
), [*****]; or
|
(b)
|
the actual cost of performing the Variation is lower than what the Parties agreed the impact would be pursuant to this Article 14 (
Variations
), [*****].
|
14.29
|
If in relation to a Lessee Variation Request:
|
(a)
|
the Owner notifies the Contractor that it shall proceed with the Variation based on the Variation Order Proposal in accordance with this Article 14.29 (
Variation Order
), then Article 14.30 shall apply; or
|
(b)
|
the Owner notifies the Contractor that it shall not proceed with the Variation as a Lessee Variation Request, or at any time the Lessee Variation Request is withdrawn, then Articles 14.1 (
Variations
) to 14.14 (
Variations
) shall apply in respect of the Variation to the extent it is still required under this Agreement.
|
14.30
|
If the Owner decides to proceed with a Lessee Variation Request, then:
|
(a)
|
the Owner shall issue to the Contractor two (2) copies of a draft variation order:
|
(i)
|
in the form set out in Appendix 16 (
Variation Order
); and
|
(ii)
|
confirming the impacts for the Contractor and the Owner, as set out in the Variation Order Proposal, including:
|
(A)
|
the proposed changes (if any) to the Contract Price;
|
(B)
|
the proposed changes, if any, to the Agreement which are necessary for the implementation of the Variation; and
|
(C)
|
acknowledging and agreeing to the proposed impact (if any) of the Variation on the Project Schedule, which shall be as set out in the Variation Order Proposal; and
|
(b)
|
within seven (7) days (or such other period as the Parties may agree acting reasonably) after receipt of two (2) copies of a draft variation order:
|
(i)
|
the Contractor shall promptly:
|
(A)
|
sign and return one (1) copy of such variation order to the Owner to evidence acceptance of the Variation Order Proposal (such signed order, a "
Lessee Variation Order
"); and
|
(B)
|
initiate and perform the works set out in the Lessee Variation Order in accordance with this Agreement and the schedule set out in the Lessee Variation Order; and
|
(ii)
|
the Parties shall comply with the terms of the Lessee Variation Order, including:
|
(A)
|
the proposed changes (if any) to the Contract Price;
|
(B)
|
the proposed changes, if any, to the Performance Guarantees that will apply during the implementation of the Variation and upon the completion of the Variation; and;
|
(C)
|
the revised Project Schedule.
|
14.31
|
If the Owner disputes any of the terms of the Variation Order Proposal, then:
|
(a)
|
duly authorised representatives of the Contractor and the Owner will meet and discuss alternatives to, and/or changes to be made to, the terms of the Variation Order Proposal in accordance with Article 48.2 (
Amicable Settlement
); and
|
(b)
|
notwithstanding that the dispute may not have been resolved the Contractor shall, if so requested in writing by the Owner, implement or procure the implementation of the Variation and proceed diligently with performance thereof and in respect of Variation Costs, the Owner shall pay on a cost reimbursable basis, invoiced monthly (payable within forty-five (45) Days of invoice), at the rates set out in Appendix 3 (
Price Schedule
)
unless and until the matter is agreed or determined in accordance with Article 48 (
Dispute Resolution
), together with interest on that amount at LIBOR accruing on a daily basis from the date payment was made by the Owner (in the case of payment due from the Contractor to the Owner) or due by the Owner (in the case of payment due from the Owner to the Contractor) and to the date of actual payment by the Contractor or the Owner (as the case may be) of the amount determined payable in accordance with Article 48 (
Dispute Resolution
).
|
15.
|
ERRORS AND CHANGES
|
15.1
|
The Contractor shall be entitled to a Variation Order in respect of adjustment of the Contract Price (calculated in accordance with Appendix 3
(
Price Schedule
))
,
to the extent not compensated for by the Sub-Contractor under the GIMI Topsides Agreement, and to a Variation Order in respect of delays to the Contractor's Scope, resulting from an Objective Error or a Subjective Error as defined in the GIMI Topsides Agreement.
|
15.2
|
In the event that:
|
(a)
|
there is any disagreement as to whether the Sub-Contractor's interpretation of the discretionary elements of DNV-OS-E201 was in accordance with Prudent Engineering and Construction Practice; or
|
(b)
|
there is any disagreement as to whether changes to the Sub-Contract Works arising from a Hazard & Operability Analysis study ("
HAZOP
") are due to the Sub-Contractor's Objective Error(s) and/or Subjective Error(s),
|
15.3
|
To the extent not caused by the Contractor, the Contractor shall be entitled to a Variation Order in respect of adjustment of the Contract Price calculated in accordance with Appendix 3 (
Price Schedule
) to the extent not compensated for by the Sub-Contractor under the GIMI Topsides Agreement, and to a Variation Order in respect of delays to the Contractor's Scope, resulting from a HAZOP.
|
16.
|
CONTRACT PRICE AND TERMS OF PAYMENT
|
16.1
|
The price for the performance of the Works (excluding the Re-measurable Scope, as defined in Article 16.2 (
Contract Price and Terms of Payment
) below) shall be the sum of [*****] net receivable by the Contractor, (the "
Fixed Price
") which is exclusive of the OFE and shall be subject to adjustment, if any, as hereinafter set forth in this Agreement.
|
16.2
|
The provisional price ("
Provisional Re-measurable Price
") for the performance by the Contractor of the erection, installation and integration of the Topsides Scope, and for the performance of repair and life extension works of the Vessel, as set out in Appendix 3 (
Price Schedule
) ("
Re-measurable Scope
") shall be the sum of [*****]. The actual price for the performance by the Contractor of the Re-measurable Scope shall be based on a re-measurement of the actual work, materials and equipment required to carry out the Re-measurable Scope at the rates set out in Appendix 3 (
Price Schedule
)
("
Final Re-measurable Price
"), which the Contractor shall determine no later than fourteen (14) Days before Vessel Leaving The Yard. The Ninth Instalment shall be adjusted to take into account the difference between the Provisional Re-measurable Price and the Final Re-measurable Price through a Variation Order.
|
16.3
|
The total price for the performance of the Works ("
Conversion Price
") shall be the total of the Fixed Price and the Final Re-measurable Price, which is exclusive of the Topsides Price and shall be subject to adjustment, if any, as provided in this Agreement. Pending ascertainment of the Final Re-measurable Price, the total of the Fixed Price and the Provisional Re-measurable Price is referred to as the "
Provisional Conversion Price
". Notwithstanding that the Final Re-measurable Price will only be fully ascertained by the ninth instalment, the Contractor shall receive interim payments of any difference between the Provisional Re-measurable Price and the actual price for the Re-measurable Scope at the relevant point in time (“
Interim Re-measurable Price
”) as provided for in Article 16.4 (
Works
) below.
|
16.4
|
[*****]:
|
(a)
|
[*****].
|
(b)
|
[*****].
|
(c)
|
[*****].
|
(d)
|
[*****].
|
(e)
|
[*****].
|
(f)
|
[*****].
|
(g)
|
[*****].
|
(h)
|
[*****].
|
(i)
|
[*****].
|
16.4A
|
[*****].
|
16.4B
|
[*****].
|
16.4C
|
The Contractor shall submit to the Owner an invoice for each payment referred to in Article 16.4 not later than seven (7) Business Days before the date when it believes that such payment will become due. The payment instalments in Articles 16.4(b) to (h) and in Article 16.4B shall be paid five (5) Business Days after their due date.
|
16.5
|
The Owner shall pay to the Contractor such amounts as are due from the Contractor to the Sub-Contractor so as to enable the Contractor to pay such amounts to the Sub-Contractor in full when due. The Sub-Contractor shall submit an invoice to the Contractor each month for the milestones achieved and for progress pertaining to Variation Orders in the preceding month.
|
16.6
|
The Contractor shall deliver to the Owner copies of all Milestone Achievement Certificates received and approved by the Contractor from the Sub-Contractor. The Owner shall review and comment on each Milestone Achievement Certificate in good time to enable the Contractor to comply with Clause 7.8 of the GIMI Topsides Agreement.
|
16.7
|
The Contractor shall deliver to the Owner copies of all invoices received and approved by the Contractor by the Sub-Contractor together with an invoice in the same amount from the Contractor to the Owner. The Owner shall review and comment on each invoice in good time to enable the Contractor to comply with Clause 7.8 of the GIMI Topsides Agreement.
|
16.8
|
The Owner shall pay the amount invoiced by the Contractor and the Sub-Contractor in good time to enable the Contractor to comply with Clause 7.5 of the GIMI Topsides Agreement.
|
16.9
|
The Owner shall pay to the Contractor at the same time as payment of the first instalment under Article 16.4(a) (
Contract Price and Terms of Payment
) the additional sum of [*****] (the "
Payment Advance
"). In the event that the Owner fails to make timely payment of any amount due to the Contractor in respect of the Works, or the Sub-Contract Works, the Contractor shall recover such payment from the Payment Advance upon which the Owner shall forthwith pay to the Contractor by the last day of the same calendar month such amount as will restore the Payment Advance to the aforementioned sum.
|
16.10
|
Such amount, if any, of the Payment Advance remaining at Vessel Leaving The Yard shall be set off against the ninth instalment of the Conversion Price in Article 16.4(i).
|
16.11
|
Payment of sums due to the Contractor under this Agreement shall be made without any discount, set off, deduction or withholding of any nature whatsoever by wire transfer free of all transfer charges to the Contractor's bank account as may from time to time be designated and notified in writing (or as may be detailed in any invoice) to the Owner for credit to the account of the Contractor.
|
16.12
|
Interest shall accrue on any delayed payment at the Default Interest Rate (before or after judgment or arbitration award) until full payment is made.
|
16.13
|
For the avoidance of doubt, any increase in the Topsides Price shall be borne solely by the Owner.
|
17.
|
ADJUSTMENT OF CONTRACT PRICE
|
17.1
|
The Contract Price shall be subject to adjustment, as set forth below, in the event of the following contingencies (it being understood by both Parties that any reduction of the Contract Price is by way of liquidated damages which are a reasonable pre-estimate of the losses incurred by the Owner for delay, and not by way of penalty and that the remedies provided in this Article 17 (
Adjustment of Contract Price
) shall constitute the Owner's sole remedy for delay in the performance of the Contractor's Scope and/or the Sub-Contract Works), provided that any reduction by way of liquidated damages shall only be made if the Owner has an arm’s length contract with a party unconnected with the Owner for the employment of the Vessel.
|
17.2
|
No adjustment shall be made and the Conversion Price shall remain unchanged for the first [*****] of delay in Redelivery beyond the Redelivery Date (the "
Grace Period
");
|
(a)
|
If Redelivery is delayed more than [*****] beyond the Redelivery Date for reasons solely attributable to the Contractor, then in such event, beginning from the [*****] after the Redelivery Date (i.e. the end of the Grace Period) until the end of [*****] from the end of the Grace Period, the Conversion Price shall be reduced by deducting the sum of [*****] per Day for each Day of delay beyond the expiry of the Grace Period.
|
(b)
|
If Redelivery is delayed more than [*****] beyond the end of the Grace Period for reasons solely attributable to the Contractor, then in such event, beginning from the [*****] after the end of the Grace Period until the end of [*****] after the end of the Grace Period, the Conversion Price shall be reduced by deducting the sum of [*****] per Day for each Day of delay beyond the end of [*****] following the expiry of the Grace Period.
|
(c)
|
If Redelivery is delayed more than [*****] beyond the end of the Grace Period for reasons solely attributable to the Contractor, then in such event, beginning from the [*****] after the end of the Grace Period until the end of [*****] after the end of the Grace Period, the Conversion Price shall be reduced by deducting the sum of [*****] per Day for each Day of delay beyond the end of [*****] following the expiry of the Grace Period.
|
(d)
|
If Redelivery is delayed more than [*****] beyond the end of the Grace Period for reasons solely attributable to the Contractor, then, in such event, beginning from the [*****] after the end of the Grace Period until the Contractor accrues the total limit for liquidated damages stated below in Article 17.3 (
Contractor’s Scope
), the Conversion Price shall be reduced by deducting the sum of [*****] per Day for each Day of delay beyond the end of [*****] following the expiry of the Grace Period.
|
17.3
|
However, the total reduction in the Conversion Price on account of such liquidated damages shall not be more than [*****].
|
17.4
|
For the purposes of this Article 17 (
Adjustment of Contract Price
), Redelivery shall be deemed to be delayed when and if the Vessel, after taking into full account all postponements of the Redelivery Date by reason of permissible delays and/or any other reasons under this Agreement, is not delivered by the date upon which Redelivery is required under the terms of this Agreement.
|
17.5
|
It is expressly understood and agreed by the Parties that in any case, if the Owner terminates this Agreement pursuant to Article 33.1 (
Termination for Cause
) or Article 34 (
Termination for Convenience
), the Owner shall not be entitled to any damages or to liquidated damages as provided in this Article 17 (
Adjustment of Contract Price
).
|
17.6
|
The Parties acknowledge and agree that the amount of liquidated damages payable for delay in Redelivery as provided in this Article 17 (
Adjustment of Contract Price
) constitutes a genuine pre-estimate of the loss that would be suffered by the Owner as a result of the Contractor's non-compliance with its obligations under this Agreement. In the event that such liquidated damages are determined to be unenforceable, the Owner shall be entitled to recover direct damages provided that such damages shall not exceed the maximum amount of liquidated damages which would have been recoverable under this Article 17 (
Adjustment of Contract Price
) if the liquidated damages had been enforceable.
|
17.7
|
If Redelivery occurs earlier than the Redelivery Date, as may be adjusted in accordance with the terms of this Agreement, the Conversion Price shall be increased at the discretion of the Owner by a sum between [*****], provided that the Conversion Price shall be increased only if the Owner has an arms-length contract with a party unconnected with the Owner for the employment of the Vessel. Such sum, if any, shall be paid by the Owner to the Contractor within [*****] of the achievement of Commercial Operations Date.
|
17.8
|
As regards to the Sub-Contract Works the Contractor shall have no obligation to the Owner, whether by way of liquidated damages or otherwise, for delays to the Sub-Contractor's performance of the Sub-Contract Works or for delays to the Works arising out of or in connection with the Sub-Contract Works, unless those delays are caused by the Contractor in breach of its obligations under the GIMI Topsides Agreement or this Agreement. Further, the Contractor shall have no obligation to the Owner in respect of the performance of the Topsides Scope in any Performance Tests or otherwise.
|
17.9
|
Where the Contractor's performance of the Contractor's Scope is delayed by causes which are the responsibility of the Sub-Contractor, such that Redelivery is delayed beyond the Redelivery Date, the Redelivery Date shall be postponed to the extent of the impact to the Contractor's performance of the Contractor's Scope.
|
17.10
|
Subject to Article 30 (
Delays and Performance Deficiencies – Sub-Contract Works
), the Contractor shall endeavour to avoid or minimise the impact of any delays to the Contractor's Scope caused by the Sub-Contractor.
|
18.
|
MECHANICAL COMPLETION
|
18.1
|
The Contractor shall be responsible for achieving Mechanical Completion in respect of the Works.
|
18.2
|
Upon each stage of successful Mechanical Completion, the Owner's Representative and the Contractor's Representative shall sign Mechanical Completion Certificates in accordance with the procedure which the Contractor and the Owner shall agree before commencement of Mechanical Completion. In the event of minor works that are not completed but which do not affect the safe departure of the Vessel ("
Outstanding Works
"), the Mechanical Completion Certificate shall be signed with an agreed punch list of the Outstanding Works, which shall be subsequently completed by the Contractor within a mutually agreed time frame after Redelivery provided that the Owner grants the Contractor reasonable access and facilities.
|
18.3
|
Acceptance of Mechanical Completion as above provided shall be final and binding so far as conformity of the Works with this Agreement and the Specifications to the extent required to achieve Mechanical Completion are concerned. The Parties agree that the Contractor shall continue to perform its obligations and satisfy its liabilities under this Agreement. The Parties agree that this Article 18.3 shall not relieve the Contractor from its obligations to carry out and complete the Works.
|
19.
|
PRE-SAILAWAY COMMISSIONING OF SUB-CONTRACT WORKS
|
19.1
|
The Contractor shall be responsible for carrying out activities at the Yard for the Pre-Sailaway Sub-Contract Works Commissioning, with the assistance of the Sub-Contractor, in accordance with the GIMI Topsides Agreement. The Contractor and the Sub-Contractor shall jointly develop inspection and testing procedures applicable for the Pre-Sailaway Sub-Contract Works Commissioning and shall comply with the same. The Owner shall within fourteen (14) Days review and approve or, where the Sub-Contract Works are not in accordance with the requirements of the GIMI Topsides Agreement, not approve the execution of the Pre-Sailaway Sub-Contract Works Commissioning Certificate. The Owner shall provide reasons in writing if it does not approve the Pre-Sailway Sub-Contract Works Commissioning Certificate.
|
19.2
|
Upon each stage of successful Pre-Sailaway Sub-Contract Works Commissioning, the Owner's Representative and the Contractor's Representative shall sign Pre-Sailaway Sub-Contract Works Commissioning Certificates.
|
20.
|
PRE-SAILAWAY COMMISSIONING OF THE WORKS
|
20.1
|
The Contractor shall perform Pre-Sailaway Commissioning of the Works, as further detailed in Appendix 1B (
Outline Specification Of Conversion, Specification Of Dry-Docking And Repair Work
)
.
|
20.2
|
Upon each stage of successful Pre-Sailaway Commissioning of the Works, the Owner's Representative and the Contractor's Representative shall sign a Pre-Sailaway Commissioning Certificate in accordance with the procedure which the Contractor and the Owner shall agree before commencement of Pre-Sailaway Commissioning of the Works.
|
20.3
|
The procedure set out in Article 18.2 (
Mechanical Completion
) in respect of Outstanding Works in relation to Mechanical Completion shall also apply to Pre-Sailaway Commissioning of the Works.
|
20.4
|
To the extent relevant to the Contractor's Scope, the Owner shall provide the Manuals and Protocols to the Contractor.
|
21.
|
VESSEL LEAVING THE YARD
|
21.1
|
Upon the completion of the Pre-Sailaway Commissioning of the Works to be carried out in the Yard as provided in Appendix 1B (
Outline Specification Of Conversion, Specification Of Dry-Docking And Repair Work
), the Owner's Representative and the Contractor's Representative shall sign the Certificate of Vessel Leaving The Yard in the form set out in Appendix 10 (
Forms
), whereupon (subject to the payment of all undisputed sums due pursuant to this Contract at the relevant time) the care, custody and control of the Vessel shall pass from the Contractor to the Owner ("
Vessel Leaving The Yard
").
|
21.2
|
On and from the signing of the Certificate of Vessel Leaving The Yard and payment as set out in Article 21.1 (
Vessel Leaving the Yard
), the Vessel shall be at the sole risk of the Owner. The Owner shall be responsible for manning, security, watchmen and all other costs and liabilities relating to the Vessel after seven (7) days from such date of signing. The Contractor's prevailing mooring/berthing rates will be payable by the Owner whilst the Vessel remains at the Yard beyond seven (7) Days after the signing of the Certificate of Vessel Leaving The Yard. During the seven (7) Days after the signing of the Certificate of Vessel Leaving The Yard that the Vessel remains in the Yard, the Contractor shall be fully entitled to move the Vessel to another part of the Yard at the Owner's cost and risk of loss or damage arising from such movement.
|
21.3
|
Following the signing of the Certificate of Vessel Leaving The Yard in accordance with Article 21.1 (
Vessel Leaving the Yard
), and before it is required under this Agreement to cause the departure of the Vessel from the Yard, the Owner may, at its entire risk and cost, carry out activities on and in respect of the Sub-Contract Works.
|
22.
|
PRE-SAILAWAY COMMISSIONING AT ANCHORAGE
|
22.1
|
Following the signing of the Certificate of Vessel Leaving The Yard and payment in accordance with Article 21.1 (
Vessel Leaving the Yard
), the Owner shall, at its own risk and cost, cause the Vessel to be moved within seven (7) Days from the Yard to an anchorage in Singapore.
|
22.2
|
The Contractor shall perform at such anchorage the remaining Pre-Sailaway Commissioning of the Works in accordance with Appendix 1B
(
Outline Specification Of Conversion, Specification Of Dry-Docking And Repair Work
), for which purpose the Owner shall provide to the Contractor reasonable and timely access and facilities. The procedure set out in Article 18.2 (
Mechanical Completion
) in respect of Outstanding Works in relation to Mechanical Completion shall also apply to Pre-Sailaway Commissioning of the Works.
|
23.
|
REDELIVERY
|
23.1
|
The Owner shall accept Redelivery immediately upon the completion of Commissioning at anchorage, and make payment of the ninth instalment and all other amounts then due to the Contractor from the Owner. Provided that the Owner has made such payment, Redelivery shall be effected by the concurrent delivery by each of the Parties to the other the Protocol of Redelivery and Acceptance acknowledging Redelivery of the Vessel by the Contractor and acceptance thereof by the Owner.
|
23.2
|
The Owner and the Contractor shall agree on adjustments to the schedules for the performance of the Works to meet adjustments in the Redelivery Date pursuant to this Article 23 (
Redelivery
).
|
23.3
|
Upon Redelivery, ownership, property and title to all goods, materials, spares, equipment (including, but not limited to, the Equipment and other items referred to in the GIMI Topsides Agreement), machineries, appurtenances, outfit, articles and items supplied to or installed on the Vessel whether pursuant to this Agreement, the GIMI Topsides Agreement or otherwise (hereinafter referred to collectively as the "
Contractor's Equipment
") shall, unless otherwise agreed, pass to the Owner but, until such time as the Vessel is redelivered to the Owner in accordance with this Article 23 (
Redelivery
), ownership, property and title to all the Contractor's Equipment as aforesaid shall remain vested solely and exclusively in the Contractor.
|
23.4
|
Upon Redelivery, the Contractor shall deliver to the Owner the following documents (if not already delivered):
|
(a)
|
Protocol of Mechanical Completion;
|
(b)
|
Instruction books and operation manuals in the English language from the vendors or suppliers of the equipment procured by the Contractor under this Agreement including those received from the Sub-Contractor in respect of the Sub-Contract Works; and
|
(c)
|
Drawings and certificates as listed in the Specifications.
|
23.5
|
Concurrently with Redelivery, the Owner shall pay to the Contractor the ninth instalment (unless already paid in accordance with Article 16.4 (
Contract Price and Terms of Payment
) and all other amounts then due to the Contractor from the Owner.
|
23.6
|
If the Owner fails to accept Redelivery according to this Agreement without any justifiable reason, the Contractor shall have the right to tender Redelivery after compliance of the procedural requirements as provided above.
|
23.7
|
The procedure set out in Article 18.2 (
Mechanical Completion
) in respect of Outstanding Works in relation to Mechanical Completion shall also apply to Redelivery. The Owner shall install the Commissioning Spares on the Vessel before Redelivery.
|
24.
|
SAILAWAY
|
24.1
|
Following Redelivery, the Owner shall, at its own risk and cost, cause the Vessel to be moved promptly from Singapore anchorage to the Project Site ("
Sailaway
").
|
24.2
|
In the event the Contractor is
|
(a)
|
required to perform work after Sailaway, including but not limited to completing punch list items and fulfilling its warranty obligations; or
|
(b)
|
agrees to perform additional work in accordance with Article 14 (
Variations
),
|
25.
|
PROJECT SITE WORKS
|
25.1
|
The Owner shall be responsible at its own costs, expense and risk for mobilising the Vessel to the Project Site, hook up and all other activities required for the preparation for and carrying out of the Project Site Works.
|
25.2
|
The Owner shall ensure that the Project Site is safe, accessible, compliant with applicable laws and not in breach of any term of this Agreement.
|
25.3
|
The Owner shall provide the Contractor's Representative and the Sub-Contractor with written notices at ninety (90), forty-five (45), twenty-one (21) and five (5) Days prior to the date or dates when the Project Site Works are to commence. The 5-Day notice shall be accompanied by confirmation that the pre-conditions set out in Clause 30.4 of the Gimi Topsides Agreement have either have been fulfilled or will be fulfilled prior to the commencement of the Project Site Works.
|
26.
|
CONDITIONS PRECEDENT FOR PROJECT SITE COMMISSIONING
|
26.1
|
Project Site Commissioning will commence when the Owner has issued the Ready for First Gas Certificate.
|
26.2
|
The Ready for First Gas Certificate shall be issued by the Owner to the Sub-Contractor in accordance with Clause 31 of the GIMI Topsides Agreement.
|
26.3
|
The Owner shall notify the Contractor when First Gas is achieved.
|
27.
|
PROJECT SITE COMMISSIONING
|
27.1
|
The Owner shall perform the Project Site Commissioning with the Sub-Contractor in accordance with Clause 32 of the GIMI Topsides Agreement.
|
28.
|
START UP AND PERFORMANCE TESTS
|
28.1
|
The Owner shall perform Startup and the Performance Tests with the assistance of the Sub-Contractor in accordance with the GIMI Topsides Agreement.
|
28.2
|
The Performance Tests shall demonstrate the achievement of Minimum Performance and Guaranteed Performance, the latter to include Guaranteed Fuel Usage and Guaranteed Electrical Power Consumption. The Owner shall notify the Contractor of the results of the Performance Tests.
|
29.
|
FINAL ACCEPTANCE
|
29.1
|
The Owner shall notify the Contractor when Final Acceptance has been achieved in accordance with the provisions of the GIMI Topsides Agreement.
|
30.
|
DELAYS AND PERFORMANCE DEFICIENCIES – SUB-CONTRACT WORKS
|
30.1
|
The Contractor shall take reasonably practicable steps to avoid or minimise any delay to Redelivery which might otherwise result from the Sub-Contractor's performance of the Topsides Scope, provided that the cost to the Contractor of doing so shall not exceed the amount received by the Contractor from the Sub-Contractor in respect of such delay by the Sub-Contractor pursuant to Clause 33.2 of the GIMI Topsides Agreement.
|
30.2
|
The Contractor shall be entitled to a Variation Order for any delay to Redelivery despite the Contractor's taking of those steps.
|
30.3
|
To the extent any payment is received on or before Redelivery by the Contractor from the Sub-Contractor pursuant to Clauses 33.4 of the GIMI Topsides Agreement shall be credited by the Contractor against the ninth instalment of the Conversion Price.
|
30.4
|
To the extent any other payment is received by the Contractor from the Sub-Contractor pursuant to Clauses 33.4, 33.7, 33.8 and/or 33.9 of the GIMI Topsides Agreement such amounts shall, at the Owner’s discretion (i) be credited by the Contractor against the ninth instalment or (ii) be paid to the Owner directly after deducting any amount due to the Contractor from the Owner.
|
30.5
|
Not used.
|
30.6
|
The Contractor shall have no responsibility for either the performance of the Sub-Contract Works in the Performance Tests nor for any defect, deficiency or suitability of the Sub-Contract Works.
|
31.
|
FORCE MAJEURE
|
31.1
|
Definition
|
(a)
|
"
FM Event
" means a Political FM Event or an Other FM Event.
|
(b)
|
A "
Political FM Event
" means an event or circumstance (or series of connected events or circumstances) of a political nature that occurs within, or directly involves, either or both of the Countries, which prevents or impedes the due performance of a Party's obligations under this Agreement, including:
|
(i)
|
any act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, revolution, riot, insurrection, civil commotion, sabotage, political act, or act of terrorism;
|
(ii)
|
any lapse of authorisation issued by governmental authority;
|
(iii)
|
radioactive contamination ionising radiation originating from a source inside the Countries or resulting from another Political FM Event; or
|
(iv)
|
a change of law of either or both of the Countries,
|
(c)
|
An "
Other FM Event
" means an event or circumstance (or series of connected events or circumstances) which is beyond the control of the Party affected, which prevents or impedes the due performance of that Party's obligations under this Agreement:
|
(i)
|
but only if and to the extent that such circumstance, despite the exercise of reasonable diligence or adoption of reasonable precautions, acting as a reasonable and prudent contractor, cannot be prevented or overcome by such Party; and
|
(ii)
|
includes, provided the foregoing conditions are satisfied, any:
|
(A)
|
act of God, flood, earthquake, lightning or other natural physical disaster, hurricanes that in the Saffir-Simpson scale reach category 1 at the time of affecting the Upstream Facilities, LNG Hub, manufacturer's delivery of Equipment and/or the Vessel, fire, explosion or navigational or maritime perils;
|
(B)
|
act of war (declared or not declared), invasion, act of foreign enemies, hostilities, civil war, insurrection of military or usurped power (whether war be declared or not), confiscation or expropriation on orders of any governmental authority;
|
(C)
|
radioactive contamination ionising radiation originating from a source inside the Countries or resulting from another Political FM Event;
|
(D)
|
act of terrorism, riot, rebellion, revolution, sabotage or civil unrest (but not including any strike or slow down or obstructive or disruptive conduct or other labour disturbances restricted to any entity or entities within that Party's Group); or
|
(E)
|
sanctions or suspension (imposed by the Countries) of activities,
|
(d)
|
For the avoidance of doubt, FM Events shall not include any of the following occurrences:
|
(i)
|
breakdown or other failure of equipment unless that failure was itself due to an FM Event;
|
(ii)
|
breakdown or other failure of any transportation used by any Party unless that failure was itself due to an FM Event;
|
(iii)
|
other commitments of a Party limiting its ability to perform its obligations under this Agreement;
|
(iv)
|
any failure by a subcontractor of any tier of a Party to perform its obligations, unless that failure was itself due to an FM Event (for the avoidance of doubt a force majeure occurrence under a subcontract, shall not be deemed to be an FM Event under this Agreement if it does not meet substantially similar criteria for an FM Event as set out in this Agreement);
|
(v)
|
rough sea and/or adverse weather conditions that are normal occurrences in the region and could reasonably have been expected;
|
(vi)
|
lack of finances, lack of funds or access to funds, or inability to borrow funds of a Party;
|
(vii)
|
lack of valid certificates, visas, permits, licences or any other documents of a Party resulting from a failure by the affected Party to comply with the requirements of this Agreement;
|
(viii)
|
shortage of labour or equipment, unless caused by events or circumstances that are themselves an FM Event; and
|
(ix)
|
failure of the Unit Area to produce Feed Gas for any reason other than an FM Event.
|
31.2
|
Works FM
|
(a)
|
If the Contractor is unable to undertake the Works because of an FM Event, on and from the Political FM Event Start Date or Other FM Event Start Date (as applicable):
|
(i)
|
the Owner shall excuse the Contractor from its obligations to undertake the Works to the extent that the FM Event affects the performance of such obligations and the affected Party shall not be in breach of this Agreement in respect of such failure; and
|
(ii)
|
the Contractor may request an extension to the Redelivery Date (and the Project Schedule) for each Day that the FM Event has impacted on the ability to perform the Works.
|
(b)
|
If the Contractor is unable to undertake the Works because of an FM Event affecting the Contractor and such FM Event or series of FM Events (whether connected or not) affects the Works for at least forty-eight (48) months in aggregate:
|
(i)
|
the Owner shall have the right to terminate this Agreement by not less than ninety (90) Days' notice in writing to the Contractor; and
|
(ii)
|
upon such termination, the Owner shall pay to the Contractor in accordance with Article 34 (
Termination for Convenience
);
|
(c)
|
If this Agreement is terminated in accordance with this Article 31.2 (
Works FM
), the Parties shall have no further liability to each other, other than with respect to the surviving obligations and any rights and obligations that have accrued prior to termination.
|
31.3
|
Owner's FM
|
(a)
|
If the Owner is unable to perform any of its obligations under this Agreement (other than any obligation to make payments or to take Redelivery of the Vessel) because of an FM Event, on and from the Political FM Event Start Date or Other FM Event Start Date (as applicable) the Contractor shall excuse the Owner from its obligations under this Agreement to the extent the FM Event impacts the Owner's performance of its obligations and the Owner shall not be in breach of this Agreement in respect of such failure.
|
(b)
|
If the Owner is unable to perform any of its obligations under this Agreement (other than any obligation to make payments) because of an FM Event or any series of FM Events (whether connected or not) affecting the Owner for at least forty-eight (48) months in aggregate:
|
(i)
|
the Owner shall have the right to terminate this Agreement by not less than ninety (90) Days' notice in writing to the Contractor; and
|
(ii)
|
upon such termination, the Owner shall pay to the Contractor in accordance with Article 34 (
Termination for Convenience
)
|
(c)
|
If this Agreement is terminated in accordance with this Article 31.3 (
Owner's FM
), the Parties shall have no further liability to each other, other than with respect to the any obligations expressly stated to survive termination of this Agreement and any rights and obligations that have accrued prior to termination.
|
31.4
|
Notification of FM
|
(a)
|
Not later than five (5) Days after becoming aware of the occurrence of an FM Event, the affected Party shall provide the other Parties with a notice setting out:
|
(i)
|
a description of the FM Event;
|
(ii)
|
the obligations of that Party under this Agreement which are impacted by the FM Event;
|
(iii)
|
an estimate of the expected duration of the FM Event; and
|
(iv)
|
the steps that the affected Party is taking or intends to take to prevent, mitigate, rectify, and/or overcome the effects of the FM Event.
|
(b)
|
During the continuation of the FM Event, the affected Party shall provide regular written reports no less frequently than every ten (10) Days (except where otherwise agreed) updating the information required by Article 31.4 (
Notification of FM
) and providing any other information that the other Parties may reasonably request.
|
(c)
|
If the affected Party provides notice within five (5) Days after becoming aware of the occurrence of an FM Event, it shall be entitled to the reliefs pursuant to this Article 31 (
Force Majeure
) in respect of the FM Event from the FM Event Start Date. If the affected Party does not provide notice within such five (5) Day period then it shall be entitled to the reliefs pursuant to this Article 31.4 (
Notification of FM
) in respect of the FM Event from the time it actually gives such notice.
|
(d)
|
A notice provided verbally by the affected Party with reasonable (but not all) details required by Article 31.4 (
Notification of FM
) with consideration given to the circumstances of the FM Event existing at such time when determining the reasonableness of details provided in the verbal notice, shall be regarded as a timely notice provided in accordance with Article 31.4 (
Notification of FM
), provided that a written notice required by Article 31.4 (
Notification of FM
) is provided by the affected Party not later than five (5) Days after the verbal notice was provided.
|
(e)
|
Throughout the period during which a Party is prevented from performing its obligations under this Agreement:
|
(f)
|
the affected Party shall allow the other Parties (at such other Parties' risk and cost) to have access to such information, facilities, sites and personnel in the possession, control or employment of the affected Party as the other Party may reasonably request in connection with such FM Event.
|
(g)
|
the Parties shall discuss any reasonable courses of action which may be taken to mitigate the economic effect of an FM Event on the Parties.
|
31.5
|
Consequences of FM
|
(a)
|
If the Contractor is unable to undertake the Works because of an FM Event affecting the Contractor then, subject to Article 31.6 (O
bligations Following FM
) below:
|
(i)
|
the Contractor shall have no entitlement to any additional payment during the FM Grace Period; and
|
(ii)
|
From the Day immediately following the Day on which the Grace Period expires, the Contractor shall be entitled to invoice monthly for mooring/berthing as set out in Appendix 3 (
Price Schedule
) and its direct costs incurred as a result of the FM Event until the Agreement is terminated by the Owner or the Party affected recommences performance in accordance Article 31.6 (
Obligations Following FM
) below (whichever the earlier). The Owner shall pay all undisputed amounts of such invoices within forty five (45) Days of receipt.
|
(b)
|
For the avoidance of doubt, the Contractor shall not be entitled to terminate this Agreement at any time following an FM Event provided that the Owner shall make payments required pursuant to sub-paragraph (a) above.
|
(c)
|
If an FM Event has lasted for a period of ninety (90) days and, in the Contractor's reasonable opinion, there is no prospect of cessation of the FM Event, the Owner shall, at its own risk and cost, cause the Vessel to be moved from the Yard to an anchorage in Singapore or elsewhere until the FM Event ceases.
|
31.6
|
Obligations Following FM
|
(a)
|
To the extent any Party is entitled to relief from its obligations under this Agreement as a result of an FM Event, the affected Party shall, as soon as reasonably practicable, take the measures which a reasonable and prudent contractor would take to bring the FM Event to an end and to overcome and / or minimise the effects which prevent, impede or delay such affected Party's ability to resume performance under this Agreement. An affected Party shall not be entitled to relief, and an FM Event shall cease to be treated as an FM Event, to the extent that the affected Party claiming the FM Event relief fails to comply with this Article 31.6 (O
bligations Following FM
), unless such failure is itself caused by the FM Event.
|
(b)
|
As soon as an affected Party ceases to be so affected by an FM Event and is no longer prevented from performing its obligations under this Agreement, such affected Party shall:
|
(i)
|
notify the other Parties accordingly; and
|
(ii)
|
recommence performance of such obligations as soon as reasonably practicable.
|
32.
|
SUSPENSION
|
32.1
|
The Owner shall have the right to suspend the Works and/or the Sub-Contract Works or any part thereof (the "
Suspended Works
") from the date, for the period and to the extent detailed in a notice, for any of the following reasons:
|
(a)
|
in the event that suspension is necessary for the proper execution or safety of the Suspended Works, or safety of persons or property; or
|
(b)
|
to suit the convenience of the Owner.
|
32.2
|
The Contractor shall not exercise its right to suspend the Sub-Contract Works in accordance with Clause 41.1(b) of the GIMI Topsides Agreement unless instructed by the Owner.
|
32.3
|
Upon receipt of any such notice, the Contractor shall, unless instructed in writing by the Owner otherwise:
|
(a)
|
discontinue the Suspended Works detailed in the notice, on the date, for the period and to the extent specified;
|
(b)
|
properly protect and secure the Works, including any action reasonably required by the Owner, and including taking necessary measures for the preservation of the Works already executed (if any);
|
(c)
|
take all reasonable measures to minimize the resulting costs, expenses and losses, including placing no further orders and making no further subcontracts with its suppliers with respect to the Suspended Works other than as specified in the notice;
|
(d)
|
promptly make reasonable effort to obtain suspension of all outstanding orders and subcontracts to the extent they relate to the execution of the portion of the Suspended Works; and
|
(e)
|
continue to perform all unsuspended parts of the Works.
|
32.4
|
As a result of any such suspension, the Conversion Price, Redelivery Date and Project Schedule shall be adjusted as relevant in accordance with Article 14 (
Variations
), except where the suspension for safety reasons is solely caused by the Contractor.
|
32.5
|
Where such suspension has been called by the Owner, the Owner shall be fully responsible for any resulting adjustments of the Conversion Price in accordance with this Agreement. The Owner shall pay the Contractor for any costs incurred by the Contractor as a result of the suspension on a monthly basis.
|
32.6
|
The Owner may, by further notice, instruct the Contractor to resume the Suspended Works to the extent specified.
|
32.7
|
In the event of any suspension, the Owner and the Contractor shall meet at not more than seven (7) Day intervals with a view to agreeing a mutually acceptable course of action during the suspension.
|
32.8
|
If the period of any suspension pursuant to Article 32.1 (
Suspension
) exceeds thirty (30) consecutive Days per occurrence or ninety (90) Days in the aggregate, the Contractor may serve a written notice on the Owner requesting written permission within seven (7) Days from the Owner's receipt of such notice to proceed with the Suspended Works. If within such period the Owner does not grant such permission the Contractor or the Sub-Contractor, by a further notice, may at its option treat the suspension as either:
|
(a)
|
where it affects part only of the Works, and/or of the Sub-Contract Works a deletion of such part under Article 14 (
Variations
); or
|
(b)
|
where it affects the whole of the Works, and/or the Sub-Contract Works, termination in accordance with Article 34
(
Termination for Convenience
).
|
32.9
|
As soon as possible after the Contractor and/or the Sub-Contractor re-commences performance of the Works and/or the Sub-Contract Works following suspension pursuant to Article 32.1 (
Suspension
) or 32.2 (
Suspension
) (as applicable) the parties shall discuss in good faith and use reasonable efforts to agree any extension of time to which the Contractor and/or the Sub-Contractor may be entitled pursuant to Article 32.4 (
Suspension
) and Clause 41.3 of the GIMI Topsides Agreement.
|
32.10
|
For the avoidance of doubt, a suspension under this Article 32 (
Suspension
) shall not affect the Owner's payment obligations under Article 16 (
Contract Price and Terms of Payment
).
|
33.
|
TERMINATION FOR CAUSE
|
33.1
|
The Contractor shall be deemed to be in default of the performance of its obligations under this Agreement in the following cases:-
|
(a)
|
Redelivery is delayed for reasons which the Contractor is solely responsible beyond such time as would elapse if the maximum amount of liquidated damages payable by the Contractor for such delay pursuant to Article 17.3 (
Adjustment of Contract Price
) is exceeded;
|
(b)
|
the Contractor is in breach of any of its other material obligations under this Agreement and fails within thirty (30) Days to take reasonable steps to commence the remedy of such breach and within a reasonable period cure such breach after written notice has been given to the Contractor by the Owner pursuant to this Article 33.1 (
Termination for Cause
) with particulars of the breach that is required to be remedied;
|
(c)
|
an Insolvency Event occurs in respect of the Contractor;
|
(d)
|
an Insolvency Event occurs in respect of the Contractor Guarantor and the parent company guarantee issued by the Contractor Guarantor is not replaced in accordance with Article 49 (
Securities
);
|
(e)
|
a material adverse change occurs in the financial condition of the Contractor which would affect the Contractor's ability to perform all its obligations under this Agreement;
|
(f)
|
the aggregate cap on the Contractor's liability under this Agreement pursuant to Article 37.2 (
Liabilities and Indemnities
) is reached; or
|
(g)
|
Not used.
|
(h)
|
and the Owner may and may only in such cases have a right to terminate this Agreement and may do so by giving written notice to such effect to the Contractor.
|
33.2
|
The Owner shall be deemed to be in default of the performance of its obligations under this Agreement in the following cases:
|
(a)
|
The Owner fails to pay the Contractor any monies that have become due and payable under this Agreement after the Contractor has given the Owner thirty (30) Days' written notice of its failure to pay such monies; provided, however, that as an alternative to termination the Contractor and the Sub-Contractor shall be entitled to suspend the performance of the Works and/or Sub-Contract Works work after the Owner's failure to pay any undisputed amount due under the provisions of this Agreement and/or the GIMI Topsides Agreement within thirty (30) Days' written notice from the Contractor and/or Sub-Contractor of such failure by the Owner to pay on the due date;
|
(b)
|
The Owner fails to deliver the Vessel to the Contractor within one hundred and fifty (150) Days after the time prescribed for its Delivery under Article 6.2 (
Delivery of the Vessel
), unless within such period the Parties agree and sign a Variation Order pursuant to Article 14 (
Variations
) and the Contractor and the Sub-Contractor agree and sign a Variation Order;
|
(c)
|
The Owner fails to take Redelivery and pay all amounts due to the Contractor within fourteen (14) Days after the Contractor having given written notice to the Owner of its failure to take Redelivery or tendered the Vessel for Redelivery and stating its intention to terminate this Agreement pursuant to this Article 33.2 (
Termination for Cause
);
|
(d)
|
An Insolvency Event occurs in respect of the Owner;
|
(e)
|
The Owner is in breach of any of its material obligations under this Agreement and fails to within thirty (30) Days to take reasonable steps to commence the remedy of such breach and within a reasonable period cure such breach after written notice has been given to the Owner by the Contractor pursuant to this Article 33.2(e) (
Termination for Cause
) with particulars of the breach that is required to be remedied;
|
(f)
|
A material adverse change occurs in the financial condition of the Owner which would affect the Owner's ability to perform all its obligations under this Agreement;
|
(g)
|
A change in control of the Owner (save where the control of the Owner passes to an Affiliate of the Owner) occurs without prior written consent of the Contractor, such consent not to be unreasonably withheld;
|
(h)
|
The Owner fails to make timely payment of any amount due to the Contractor in respect of the Sub-Contract Works and the Contractor, having applied all of the Payment Advance towards any payment then outstanding of the Sub-Contractor, does not receive within seven (7) Days of written notice to the Owner, such amount as the Owner should have paid under the terms of this Agreement and the GIMI Topsides Agreement, in addition to restoring as the Payment Advance to the level prescribed in Article 16.10 (
Contract Price and Terms of Payment
); or
|
(i)
|
At any time up to Vessel Leaving The Yard, the Contractor does not receive from the Owner, upon 14 Days of the Contractor's written demand, such amount that will result in the Contractor having available to it the full Payment Advance set out in Article 16.10 (
Contract Price and Terms of Payment
),
|
33.3
|
If this Agreement is terminated by the Contractor pursuant to Article 33.2 (
Termination for Cause
), the Owner shall immediately pay the Contractor:
|
(a)
|
if this Agreement is terminated by the Contractor pursuant to Article 33.2 (
Termination for Cause
):
|
(i)
|
prior to the Commencement Date, for the LNTP Works performed until termination (less any amounts previously paid to the Contractor for the Works) as stipulated in Appendix 11
(
LNTP Works And LNTP Topsides Works
)
;
|
(ii)
|
after the Commencement Date, for the Works performed until termination (less any amounts previously paid to the Contractor for the Works);
|
(b)
|
the cost of any uninstalled equipment or materials, not already included in Article 33.3(a) (
Termination for Cause
);
|
(c)
|
any reasonable additional amount incurred by the Contractor as a result of termination of the part or parts of the Works including any unavoidable liability to subcontractors, suppliers and vendors directly related to termination of part(s) of the Works;
|
(d)
|
such amount as will indemnify the Contractor for any amount which may become payable by the Contractor to the Sub-Contractor as a consequence of the termination by the Contractor of the GIMI Topsides Agreement; and
|
(e)
|
[*****] of the balance of the Conversion Price,
|
33.4
|
If this Agreement is terminated by the Owner for any reason whatsoever prior to the LNTP Date or the Commencement Date (if no Limited to Notice is issued), the Contractor shall be entitled to claim the same sums due pursuant to Article 34.1 (
Termination for Convenience
) as though this Agreement had been terminated for convenience. If this Agreement is terminated by the Owner pursuant to Article 33.1 (
Termination for Cause
) and provided that the LNTP Date or the Commencement Date has occurred, then the Owner shall immediately pay to the Contractor:
|
(a)
|
such amounts for the Works performed until termination;
|
(b)
|
the cost of any uninstalled equipment or materials, not already included in Article 33.4(a) (
Termination for Cause
);
|
(c)
|
such amounts for the Sub-Contract Works performed until termination; and
|
(d)
|
security for any amount in dispute in wording, amount and from a guarantor reasonably acceptable to the Contractor,
|
(e)
|
any amounts previously paid to the Contractor for the Works,
|
33.5
|
In no circumstances shall the Contractor have any responsibility to the Owner in respect of the Sub-Contract Works following termination, whether or not the Sub-Contract Works have been completed at the time of such termination.
|
33.6
|
For the avoidance of doubt, in no event shall the Owner be entitled to a refund of payments effected by the Owner to the Contractor for Works performed by the Contractor or the Sub-Contractor and the remedies set out herein shall be the Owner's sole and exclusive remedy (whether at law, contract, equity or otherwise) in the event of termination of the Agreement by the Owner.
|
33.7
|
Without prejudice to any other rights or remedy which the Contractor may have, if the Owner does not within fourteen (14) days of the date of termination, make payment to the Contractor in accordance with either Article 33.3 (
Termination for Cause
) or Article 33.4 (
Termination for Cause
) or furnish security for such payment on terms satisfactory to the Contractor, the following provisions shall apply:
|
(a)
|
The Contractor shall have the full right and power either to complete or not to complete the Vessel as it deems fit, and to take, retain, keep possession, preserve or sell the Vessel, or any part thereof or any Equipment or OFE by way of a public or private sale by any means or process including but not limited to a court process in any jurisdiction at such price and on such terms and conditions as the Contractor in its sole discretion thinks fit or to dispose of the Vessel or any part thereof or the Equipment or OFE, without being answerable for any loss or damage;
|
(b)
|
In the event of the sale of the Vessel in its completed state, the proceeds of sale received by the Contractor shall be applied firstly to payment of all expenses attending such taking, retention, possession, preservation, sale or disposal and otherwise incurred by the Contractor as a result of the Owner's default, including but not limited to mooring, wharfage, berthing and dockage dues, costs of manning, security and watchmen, any movement, towage and then to payment of all unpaid instalments of the Conversion Price and interest on such instalments at the Default Interest Rate from the respective due dates thereof to the date of application;
|
(c)
|
In the event of sale of the Vessel in its incomplete state, or any part thereof or any Equipment or OFE, the proceeds of sale received by the Contractor shall be applied firstly to all expenses incurred by the Contractor as a result of the Owner's default, including but not limited to mooring, berthing, wharfage and dockage dues, costs of manning, security and watchmen, any movement, towage and then to payment of the amounts due under Articles 33.3(a) to 33.3(e) (
Termination for Cause
) and Articles 33.4(a) to 33.4(c) (
Termination for Cause
);
|
(d)
|
In either of the above events of sale, if the proceeds of sale exceeds the total of amounts to which such proceeds are to be applied as aforesaid, the Contractor shall promptly pay the excess to the Owner without interest, provided however, that the amount of such payment to the Owner shall in no event exceed the total amount of instalments already paid by the Owner (without interest) and the cost of the OFE, if any;
|
(e)
|
If the proceeds of sale are insufficient to pay such total amounts payable as aforesaid, the Owner shall promptly pay the deficiency together with interest to the Contractor upon request; and
|
(f)
|
The Owner hereby irrevocably and unconditionally grants to the Contractor full power and authority to sell the Vessel in accordance with the terms of this Article 33 (
Termination for Cause
), to take all such steps as may be necessary to complete the sale, to receive the sale proceeds into its own account and to keep or retain the same or to apply the same in the manner set out in this Article 33 (
Termination for Cause
) and for the purposes of such sale to confer legal and beneficial title and ownership in the Vessel to the buyer, deliver the Vessel to such buyer and do all acts and things as many be necessary for the purposes of giving effect to such sale including but not limited to the execution or signing of any contract, memorandum of agreement, bill of sale, certificate or document, or assignment of its right under the PRICO® License Agreement.
|
33.8
|
If this Agreement is terminated by the Owner for any reason whatsoever prior to the LNTP Date or the Commencement Date (if no Limited to Notice is issued), the Contractor shall be entitled to claim the same sums due pursuant to Article 34.1 (
Termination for Convenience
) as though this Agreement had been terminated by the Owner for convenience.
|
33.9
|
Notwithstanding the provisions of Article 33.1(c) and 33.1(d) (
Termination for Cause
), within five (5) Business Days (or such other period as may be agreed by the Parties acting reasonably) of a request by the Owner, representatives of the Parties, together with representatives of any Lessee or potential alternative contractors (as required), shall meet and discuss in good faith with respect to the development of a remedial action plan in response to the notification from the Lessee to the Owner following the occurrence of an Insolvency Event and any matters agreed by senior management.
|
34.
|
TERMINATION FOR CONVENIENCE
|
34.1
|
The Owner may in any event terminate this Agreement for any reason or for its own convenience at any time by: (i) giving not less than ten (10) Days' notice in writing to the Contractor during the period of time commencing from the Effective Date and ending on the Commencement Date; or (ii) giving not less than sixty (60) Days' notice in writing to the Contractor on and after the Commencement Date. In such event the Contractor shall be entitled to recover from the Owner, including but not limited to by way of set-off from the payment made pursuant to Article 2.1(b) (Effective Date) (if the Commencement Date has not occurred) or the first instalment (if the Commencement Date has occurred), as the case may be, in full and final satisfaction of all claims:-
|
(a)
|
Such amounts for the Works performed until;
|
(b)
|
The cost of any uninstalled equipment or materials, not already included in Article 34.1(a) (
Termination for Convenience
);
|
(c)
|
Any reasonable additional amount incurred by the Contractor as a result of terminating this Agreement including any unavoidable liability to subcontractors, suppliers and vendors directly related to termination of part(s) of the Works. In the event that: (i) the Agreement is terminated for the Owner's convenience at any time between the Effective Date and 30 December 2018 (inclusive); AND (ii) the Owner has not issued the Owner's Final Notice to Proceed; AND (iii) there has been no further agreement for the performance of LNTP Works and/or LNTP Topsides Works other than those specified in Appendix 11 (
LNTP Works and LNTP Topsides Works
) as of the Date of Agreement, such amount payable shall be as specified in Appendix 11 (
LNTP Works and LNTP Topsides Works
)
;
|
(d)
|
Such amount as will indemnify the Contractor for any amount which may become payable by the Contractor to the Sub-Contractor as a consequence of the termination by the Contractor of the GIMI Topsides Agreement pursuant to Clause 43 therein; and
|
(e)
|
an additional payment determined as follows:
|
(i)
|
if this Agreement is terminated pursuant to this Article 34 (
Termination for Convenience
) prior to the Commencement Date, the Owner shall pay the Contractor [*****].
|
(ii)
|
for any termination for convenience by the Owner subsequent to the Commencement Date, the Owner shall pay to the Contractor [*****] of the balance of the Conversion Price;
|
(f)
|
any amounts previously paid to the Contractor for the Works.
|
34.2
|
Any monies remaining after the set-off in Article 34.1 (
Termination for Convenience
) shall be returned to the Owner within fourteen (14) Days. If there is any sum that remains outstanding to the Contractor after the set-off in Article 34.1 (
Termination for Convenience
) then the Owner shall pay to the Contractor such sum within fourteen (14) Days.
|
34.3
|
Upon receipt of such payment, the Contractor shall redeliver to the Owner the Vessel, any uninstalled equipment or materials and Plans. Without prejudice to any other rights or remedy which the Contractor may have, if the Owner does not within fourteen (14) Days of the date of termination, make payment to the Contractor in accordance with this Article 34 (
Termination for Convenience
)
or furnish security for such payment on terms satisfactory to the Contractor, the provisions of Articles 33.5 (
Termination for Cause
) to 33.7 (
Termination for Cause
) shall apply.
|
34.4
|
The Owner may not terminate all or any portion of the Works pursuant to this Article 34 (
Termination for Convenience
) and, within six (6) months of such termination, self-perform, or award to others any part of the terminated Works.
|
35.
|
BUSINESS PRINCIPLES
|
35.1
|
Prohibited Acts
|
(a)
|
For the purposes of this Article 35 (
Business Principles
), "
Prohibited Act
" means any of the following:
|
(b)
|
to directly or indirectly offer, promise or give to any person anything of value, monetary or nonmonetary, without limitation, to:
|
(c)
|
induce or influence that person to perform improperly a relevant function or activity; or
|
(d)
|
reward that person for improper performance of a relevant function or activity; or
|
(e)
|
to directly or indirectly request, agree to receive or accept anything of value, monetary or nonmonetary, without limitation, from any person as an inducement or a reward for improper performance of a relevant function or activity; or
|
(f)
|
to violate any anti-bribery, corruption or anti-money laundering law, rule, regulation or equivalent applicable to either Party including, but not limited to, the United Kingdom's Bribery Act of 2010, the United States of America's Foreign Corrupt Practices Act of 1977, any applicable country legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials and all applicable successor legislation ("
Anti-Corruption Laws
").
|
35.2
|
Representations and Warranties
|
(a)
|
it shall not and shall procure that any of its employees (including any employees of an Affiliate of such Party), consultants, agents or sub-contractors shall not commit a Prohibited Act;
|
(b)
|
it is not aware of anything of value being given or promised to any Person, excluding any arrangement of which full details have been disclosed in writing to the other Party before formation of this Agreement; and
|
(c)
|
to the extent it has not already done so, it shall institute and maintain policies and procedures, including the maintenance of complete and accurate books and records and an effective system of internal accounting controls, which are designed to prevent it or any of its employees (including any employees of an Affiliate of such Party), consultants, agents or sub-contractors from committing a Prohibited Act, and shall enforce those policies, procedures and controls where appropriate.
|
35.3
|
Mutual Assistance
|
(a)
|
provide the other Party or Parties with any reasonable assistance to enable the other Party or Parties to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with Anti-Corruption Laws; and
|
(b)
|
no more frequently than once annually, certify to the other Parties in writing compliance with the provisions of this Article 35 (
Business Principles
) by the Party and any consultants, agents or sub-contractors engaged by the Party in connection with this Agreement. The Party shall provide such supporting evidence of compliance as the other Party or Parties may reasonably request.
|
35.4
|
Policy
|
35.5
|
Suspected Breach
|
(a)
|
immediately notify the other Parties; and
|
(b)
|
respond promptly to the other Parties' enquiries, co-operate with any investigation and allow the other Parties to audit books, records and any other relevant documentation in connection with this Agreement.
|
35.6
|
Duration of obligations
|
36.
|
WARRANTY
|
36.1
|
Subject to the provisions set forth herein, Contractor undertakes to remedy any defect(s) in the Works (but not in the Sub-Contract Works) which are due to defective design, defective material and/or bad workmanship on the part of Contractor and/or its subcontractors provided that the defect(s) is/are discovered within a period of either: (i) [*****]; or (ii) [*****], ("
Warranty Period
") and a notice thereof is duly given to the Contractor as hereinafter provided.
|
36.2
|
The Contractor's sole obligation in respect of defects in the Sub-Contract Works shall be to assign to the Owner such rights as the Contractor may have in that respect against the Sub-Contractor which the Owner may pursue at its sole risk and expense, indemnifying the Contractor for any costs, expenses or liabilities including in respect of its or the Sub-Contractor's legal costs and the costs of any litigation.
|
36.3
|
The Owner shall notify the Contractor in writing of any defect(s) for which a claim is made under this Article 36 (
Warranty
) as promptly as possible after discovery thereof. Such notice shall contain a description of the nature and extent of the defect(s). The Contractor shall have no obligation for any defect(s) discovered prior to the expiry of the Warranty Period (or Extended Warranty Period, in a case where such period applies under this Article 36 (
Warranty
)) unless notice of such defect(s) is received by the Contractor promptly after discovery of the defect and in any event no later than 30 Days after the expiration of the Warranty Period (or Extended Warranty Period, in a case where such period applies under this Article 36 (
Warranty
)).
|
36.4
|
The extent of the Contractor's obligation upon receipt of such notice is (1) to, at the Contractor's cost and expense, repair or replace and thereby remedy such defect at the Contractor's Yard or (2) to reimburse the Owner the costs of such repair or replacement in the event that such repair or replacement are not carried out at the Yard but at another location provided that the maximum reimbursement allowed or claimable hereunder shall not exceed [*****] of the costs of carrying out such repair or replacement at Contractor's Yard under this Article 36 (
Warranty
). If the Contractor advises the Owner in writing that such repair or replacement is to be made in the Yard, then the Owner will either return the Vessel (or the part or item affected where feasible to detach it from the Vessel) to the Yard at the Owner's costs and risk, for such repair or replacement or if the Owner advises the Contractor in writing that it is not convenient for the Owner to so return the Vessel or component to the Yard, then in such event, the Contractor shall pay to the Owner the amount stated in (2) above, after prompt inspection and admission of the defect, in lieu of the Contractor making such repair or replacement.
|
36.5
|
In the event that any repair or replacements are provided by the Contractor and/or its subcontractors during the Warranty Period, the Warranty Period in respect of such repairs or replacements shall be extended for the remaining balance of the Warranty Period or a period of [*****] from the date upon which the same is carried out, whichever is the longer period, provided that the total accumulated period of warranty in respect thereof shall not under any circumstances exceed either: (i) [*****]; or (ii) [*****] ("
Extended Warranty Period
").
|
36.6
|
The Contractor shall have no responsibility for any other defects whatsoever in the Vessel than the defects specified in Article 36 (
Warranty
). Nor shall the Contractor in any circumstances be responsible or liable for the transportation of the Vessel to and from the Yard (or the costs thereof) or to any other location to carry out or perform the repair or replacement of any defect warranted herein, or for any loss of time, loss of profit or earning or demurrage directly or indirectly occasioned to the Owner by reason of the defects specified in Article 36.1 (
Warranty
)
or due to repairs or other works done to the Vessel to remedy such defects, nor for any consequential or direct or indirect or special losses, damages or expenses.
|
36.7
|
The Contractor shall not be responsible for any defect in any part of the Vessel which may subsequent to Redelivery have been replaced or in any way repaired by any other contractor, or for any defects which have been caused or aggravated by omission or improper use and maintenance of the Vessel on the part of the Owner, its employees or agents or by ordinary wear and tear or by any other circumstance beyond the control of the Contractor. For the avoidance of doubt, this warranty shall also not extend to defects in any of the OFE for which the Owner shall seek recourse exclusively from the vendors of the relevant OFE.
|
36.8
|
The warranty contained in this Article 36 (
Warranty
) shall be in lieu of and shall replace any other liability, guarantee, warranty, remedy, condition and/or term imposed or implied by the law, customary or statutory or otherwise. The remedies contained in this Article 36 (
Warranty
) shall be the Owner's sole and exclusive remedies in relation to any and all defects warranted under this Article 36 (
Warranty
).
|
37.
|
LIABILITIES & INDEMNITIES
|
37.1
|
Except for liquidated damages expressly provided for in this Agreement, the Contractor and the Contractor's Group shall not in any event nor under any circumstances, whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability or otherwise, be liable for any loss of profit or revenues, loss of use of any equipment, cost of capital, cost of substitute equipment, facilities, services or replacement power, downtime costs, claims of the Owner's partners or customers for such damages, whether deemed to be direct or indirect and whether or not foreseeable or disclosed at the time of this Agreement, or for any special, consequential, incidental, indirect or exemplary or punitive damages suffered by the Owner , and the Owner shall release and hold harmless the Contractor's Group from such claims.
|
37.2
|
Notwithstanding any provision in this Agreement, the GIMI Topsides Agreement or the GIMI Direct Agreement to the contrary or any inconsistency in or across them, it is agreed between the Parties that the Contractor's total and entire liability under this Agreement (other than the Sub-Contract Works) and the GIMI Direct Agreement, including warranty and damages (liquidated or unliquidated), tort (including negligence and breach of statutory duty) or otherwise in relation to or in connection with this Agreement and/or the repair, modification or conversion of the Vessel and/or the Works and/or the performance by the Contractor of its obligations in the GIMI Topsides Agreement shall not exceed [*****]. This shall apply regardless of any act, default, omission or negligence, in whatever form or degree, and whether sole, partial, concurrent or contributory on the part of any person within the Contractor's Group and regardless of any other breach of duty or liability, whether strict, statutory, contractual or otherwise, by any person within Contractor's Group.
|
37.3
|
Notwithstanding any provision herein to the contrary or inconsistent herewith, it is agreed between the Parties that the Sub-Contractor's total and entire liability shall be in accordance with the requirements stated in the GIMI Topsides Agreement.
|
37.4
|
Until the Owner has fully and completely performed and discharged all its duties, liabilities and obligations under this Agreement, the Owner shall remain the sole, legal and equitable owner of the whole of the Vessel and shall not transfer legal or equitable ownership of the Vessel to any third party or create or permit any lien, charge, debt, mortgage or any other claim whatsoever over or in relation to the Vessel, other than a lien in favour of the Contractor and a mortgage in favour of the financing parties providing financing in respect of the Works and/or Sub-Contract Works.
|
37.5
|
Without prejudice to any other rights or remedy which the Contractor may have, whether under this Agreement, under common law, statute, or otherwise and whether in rem or in personam:
|
(a)
|
The Vessel, all her equipment (whether installed on board or not) whenever the same may come into the Contractor's possession, custody or control, the OFE and all goods, materials, Plans, Project Information, documents (including but not limited to the Vessel's certificates), choses-in-action, monies (including but not limited to any insurance proceeds), items and properties in the possession, custody or control of the Contractor (collectively the "
Lien Property
") shall be subject to a particular and general lien and right of detention for:
|
(i)
|
all monies, sums, amounts and payments due in respect of the Lien Property, including but not limited to monies, sums, amounts and payments due and/or arising under this Agreement and the GIMI Direct Agreement; and
|
(ii)
|
any particular or general balance or other sums, monies, amounts and payments due from the Owner to the Contractor, including but not limited to berthing, mooring, wharfage and dock charges or dues, storage fees costs of any equipment, goods or materials or manpower supplied to the Vessel, the costs of any movement of the Vessel, including the towage thereof, insurance premiums, legal fees and the cost of recovering all such charges, fees, costs and expenses, for the purpose of exercising or preserving or attempting or preparing to exercise and preserve such lien.
|
(b)
|
The Contractor, by itself or its servants or agents or otherwise shall be entitled to exercise a possessory lien upon the Lien Property in respect of any monies, sums, amounts and payments howsoever and whatsoever due to the Contractor (including but not limited to those referred to under Article 37.5(a) (
Liabilities & Indemnities
) above) and shall for the purpose of exercising such possessory lien be entitled to take, retain and keep possession of the Lien Property at the sole risk and expense of the Owner.
|
37.6
|
The Owner shall be liable for and pay to the Contractor all costs and expenses howsoever and whatsoever incurred by or on behalf of the Contractor including but not limited to berthing, mooring, wharfage and dock charges or dues, storage fees costs of any equipment, goods or materials or manpower supplied to the Vessel, the costs of any movement of the Vessel including the towage thereof, insurance premiums, legal fees and the cost of recovering all such charges, fees, costs and expenses, for the purpose of exercising or preserving or attempting or preparing to exercise and preserve such lien.
|
37.7
|
Notwithstanding the Redelivery of the Vessel to the Owner or any delivery or re-delivery of any other Lien Property to the Owner, the Contractor shall be entitled to exercise its rights pursuant to Article 37.5 (
Liabilities & Indemnities
) as long as the Lien Property is in the Yard or in the possession of the Contractor. Further, it is agreed that any agreement on the part of the Contractor to permit or allow any Lien Property to leave the Yard for any reason whatsoever (including but not limited to sea trials of the Vessel) whether pursuant to the terms of this Agreement or otherwise shall not prejudice nor be deemed as a waiver of the Contractor's lien (possessory or otherwise) over the Lien Property or of its rights hereunder. It is further expressly agreed that the Contractor's said lien shall re-attach and apply in the event the Lien Property returns to the Yard or to the possession of the Contractor.
|
38.
|
INSURANCE
|
38.1
|
Builder's All Risk (BAR) Insurance:
|
(a)
|
From the time of Delivery of the Vessel by the Owner to the Contractor until Vessel Leaving The Yard, the Contractor shall keep the Vessel, the Equipment, and all machinery, materials, equipment, appurtenances and outfit (including OFE which shall not exceed a delivered value of [*****] delivered to the Yard or built into or installed in or upon the Vessel), insured against all risks under coverage corresponding to the Institute of London Underwriters' Institute Clauses for Builders' Risks (1/6/88) (hereafter referred to as the "
BAR
"). The BAR insurance policy will be, mutatis mutandis, substantially the same as the BAR insurance policy taken out by the Contractor in respect of HILLI. The amount of such insurance coverage shall, up to the date of Vessel Leaving The Yard, be an amount at least equal to the aggregate of:
|
(i)
|
[*****],
|
(ii)
|
the aggregate of the payments made by the Owner to the Contractor,
|
(iii)
|
the value of the OFE as and when any of them are delivered to the Contractor at the Yard up to the limit mentioned hereinbefore, and
|
(iv)
|
[*****].
|
(b)
|
In the event the Vessel is damaged by any insured cause whatsoever prior to Vessel Leaving The Yard and:
|
(i)
|
Such damage is not determined by the underwriters to be an actual or a constructive total loss of the Vessel, the Contractor and/or the Owner shall apply the amount recovered under the BAR policy referred to in Article 38.1(a) (
Insurance)
above to the repair of such damage reasonably satisfactory to the Owner and the Classification Society, and the Owner shall accept the Vessel if completed in accordance with this Agreement; or
|
(ii)
|
Such damage is determined by the underwriters to be an actual or constructive total loss of the Vessel, the Contractor shall, with the mutual agreement between the Parties, either:
|
(A)
|
Proceed in accordance with the terms of this Agreement, in which case the amount recovered under the insurance policy shall be applied to the reconstruction of the Vessel, provided the Parties shall have first agreed in writing as to such reasonable postponement of the Redelivery Date and adjustment of other terms of this Agreement including the Contract Price as may be necessary for the completion of such reconstruction; or
|
(B)
|
Pay the insurance proceeds under the BAR insurance policy to the Owner within sixty (60) Days of receipt thereof less the value of the Works performed by the Contractor up to the date the damage occurred (less any amounts already paid by the Owner to the Contractor under this Agreement), whereupon this Agreement shall be deemed to be terminated and all rights, duties, liabilities and obligations of each of the Parties to the other shall terminate forthwith.
|
38.2
|
Hull & Machinery and P & I
: From the time of Vessel Leaving The Yard, the Owner shall maintain comprehensive hull and machinery, protection and indemnity and any operational insurance policies over the Vessel covering at least the value of the Vessel.
|
38.3
|
Co-assurance & Waiver of Subrogation
: The insurance required above to be taken out by the Parties shall name the other Party as co-assured and waive subrogation against the other Party's group.
|
38.4
|
Other Insurance
: The Parties shall, at their respective cost and expense, effect and maintain the following insurance:
|
(a)
|
In the case of the Contractor:
|
(i)
|
Workmen's Compensation and Employer's Liability Insurance as prescribed by applicable laws of Singapore;
|
(ii)
|
Commercial General Liability Insurance with limits of not less than one million Dollars ($1,000,000) per occurrence and two million Dollars ($2,000,000) in aggregate.
|
(b)
|
In the case of the Owner:
|
(i)
|
Any Workmen's Compensation and Employer's Liability Insurance or the equivalent thereof covering its employees as prescribed by the states and/or countries of residence of such employees
|
(ii)
|
Commercial General Liability Insurance with the same limits as that applicable for the Contractor.
|
39.
|
PATENTS, TRADEMARKS, COPYRIGHTS ETC.
|
39.1
|
Machinery and equipment of the Vessel in respect of the Works may bear the patent number, trademarks or trade names of the manufacturers.
|
39.2
|
The Contractor shall defend, indemnify and save harmless the Owner from patent liability or claims of patent infringement of any nature or kind, including costs and expenses for, or on account of any patented or patentable invention made or used in the performance of the Works and also including costs and expenses of litigation, if any.
|
39.3
|
Nothing contained herein shall be construed as transferring any patent or trademark rights or copyright in equipment covered by this Agreement, and all such rights are hereby expressly reserved to the true and lawful owners thereof.
|
39.4
|
The Contractor's warranty hereunder does not extend to the OFE. The Owner shall defend, indemnify and save harmless the Contractor from patent liability or claims of patent infringement of any nature or kind, including costs and expenses for, or on account of any patented or patentable invention in connection with or related to the OFE and also including costs and expenses of litigation, if any.
|
39.5
|
The Contractor retains all rights with respect to the Specifications and Plans and working drawings, technical descriptions, calculations, test results and other data, information and documents concerning the design and upgrading & conversion of the Vessel and the Owner undertakes not to disclose the same or divulge any information contained therein to any third party without the prior written consent of the Contractor, except where it is necessary for usual operation, repair and maintenance of the Vessel.
|
40.
|
OWNER FURNISHED EQUIPMENT
|
40.1
|
The Owner shall at its own risk, cost and expense, supply and deliver to the Contractor all OFE at the warehouse or other storage of the Yard in proper condition ready for installation in or on the Vessel, in accordance with the time schedule stated in Appendix 4 (
OFE And Owner Engineering Deliverables Ros Dates
) hereto or such other time schedule as may be mutually agreed between the Parties.
|
40.2
|
In order to facilitate installation by the Contractor of the OFE in or on the Vessel, the Owner shall furnish the Contractor with necessary specifications, plans, drawings, instruction books, manuals, test reports and certificates required by the rules and regulations within the time schedule stated in Appendix 4 (
OFE And Owner Engineering Deliverables Ros Dates
) hereto. The Owner, if so requested by the Contractor, shall without any charge to the Contractor, cause the representatives of the manufacturers of the OFE to assist the Contractor in installation thereof in or on the Vessel and/or to carry out installation thereof by themselves or to make necessary adjustment thereof at the Yard.
|
40.3
|
The delivery dates mentioned in Appendix 4 (
OFE And Owner Engineering Deliverables Ros Dates
) are based on the Delivery of the Vessel to the Contractor by the Delivery Date. In the event of any delay in the Delivery of the Vessel to the Contractor, the delivery dates or delivery periods mentioned in Appendix 4 (
OFE And Owner Engineering Deliverables Ros Dates
) shall be extended by the period of delay in the Delivery of the Vessel to the Contractor or such dates or periods as the Parties may otherwise mutually agree in writing.
|
40.4
|
Any and all of the OFE shall be subject to the Contractor's reasonable right of rejection, as and if they are found to be unsuitable or in improper condition for installation.
|
40.5
|
Should the Owner fail to deliver any of the OFE within the prescribed time, the Redelivery Date shall be extended for a period of such delay in delivery or such longer period caused to the performance of the Works if the Contractor is able to demonstrate the same. In such event, the Owner shall be responsible and pay to the Contractor for all losses and damages incurred by the Contractor by reason of such delay in delivery of the OFE and such payment shall be made upon Redelivery of the Vessel. If delay in delivery of any of the Owner's OFE exceeds thirty (30) Days, then, the Contractor shall be entitled to proceed with the Works without installation thereof in or on the Vessel, without prejudice to the Contractor's other rights as hereinabove provided, and the Owner shall accept and take Redelivery of the Vessel so upgraded and converted.
|
40.6
|
The Contractor shall be responsible for storing and handling with reasonable care the OFE after delivery thereof at the Yard and shall at its own cost and expense, install them in or on the Vessel, unless otherwise provided herein or agreed by the Parties provided always that the Contractor shall not be responsible for quality, efficiency and/or performance of any of the OFE. The Owner acknowledges and agrees that the Contractor shall also not be responsible for any failure to meet the requirements contained in the Specifications that are attributable to the quality, efficiency and/or performance of any of the OFE.
|
41.
|
CONFIDENTIALITY
|
41.1
|
All information acquired or furnished by the Parties to each other that is:
|
(a)
|
designated in writing as "confidential" or "proprietary" at the time of written disclosure; or
|
(b)
|
verbally designated as "confidential" or "proprietary" at the time of verbal disclosure and is confirmed to be "confidential" or "proprietary" in writing within 10 Days after the verbal disclosure
|
(c)
|
other than information that:
|
(i)
|
is or becomes generally available to the public other than from disclosure by the receiving Party;
|
(ii)
|
is or becomes available to the receiving Party or its representatives or Affiliates on a non-confidential basis from a source other than the disclosing Party when the source is not, to the best of the receiving Party's knowledge, subject to a confidentiality obligation to the disclosing Party;
|
(iii)
|
is already known by the receiving Party at the time of disclosure;
|
(iv)
|
is required to be disclosed by law, a valid legal process or a government agency (including the requirements of the relevant stock exchange);
|
(v)
|
is independently developed by the receiving Party, its representatives or Affiliates, without reference to Confidential Information; and
|
(vi)
|
is approved for disclosure in writing by an authorized representative of the disclosing Party
|
41.2
|
The confidentiality obligations under this Agreement shall survive for a period of five (5) years from the Date of Agreement.
|
41.3
|
Neither Party hereto shall issue any press release or provide any information to the media or any other Third Party without the prior written approval of the other Party, except where it is necessary to satisfy securities laws or regulations and stock exchange requirements.
|
42.
|
INTELLECTUAL PROPERTY RIGHTS IN RELATION TO THE CONTRACTOR’S SCOPE
|
42.1
|
For the purposes of this Article 42 (
Intellectual Property Rights in Relation to the Contractor’s Scope
) only, "
Party
" shall mean either the Owner, the Contractor or the Sub-Contractor, and "
Parties
" shall refer to the Owner, the Contractor and the Sub-Contractor collectively.
|
42.2
|
Each Party may at any time provide another Party with certain Project Information. Such Party shall retain the Intellectual Property Rights in the Project Information it provides. The Parties shall forthwith return all the Project Information to the Party it received such Project Information from upon the completion of both the Works and Sub-Contract Works, or upon the earlier termination of this Agreement or the GIMI Topsides Agreement; provided, however, that each Party may retain for its own use only one record copy of such Project Information for the sole purpose of this Agreement and shall not use it for any other purpose. Each Party shall save, indemnify, defend and hold harmless all other Parties from all claims, losses, damages, costs (including legal costs), expenses, and liabilities of every kind and nature for, or arising out of, any alleged infringement or infringement of Intellectual Property Rights of the Project Information by any member of such Party's Group in respect of Project Information provided by it.
|
42.3
|
All Derivative Works developed or created by the Contractor or the Sub-Contractor for the Project (as defined in the GIMI Direct Agreement) shall be deemed to be and considered as "
Commissioned Works
" under applicable laws and regulations except where such Derivative Works are (i) created or made by the Sub-Contractor and (ii) any other agreement (including but not limited to the PRICO® Licence Agreement) governs, controls, pertains to or otherwise deals with the same or substantially similar subject matter, in which case the Parties expressly agree that such Derivative Works shall not constitute, be deemed to be or be considered to be Commissioned Works and such other agreement or agreements shall prevail over this Agreement in respect of such Derivative Works. The Parties agree and acknowledge that the Owner is the commissioning party of the Commissioned Works and all Intellectual Property Rights in the Commissioned Works will solely vest ab initio in the Owner, provided that if for any reason, whether by the operation of law or otherwise, the Contractor and/or Sub-Contractor still retains any rights, title, interests or benefits in the Commissioned Works, each of the Contractor and the Sub-Contractor hereby agrees to assign, including by way of present assignment of future rights, to the Owner all rights that it may have in the Commissioned Works to the Owner. If, for whatever reason, any Commissioned Works does not vest in the Owner by virtue of this Article 42.3 (
Intellectual Property Rights in Relation to the Contractor’s Scope
), then the Contractor and/or the Sub-Contractor, as applicable shall hold such Commissioned Works on trust for the Owner's sole use and benefit and shall promptly assign such Commissioned Works to the Owner upon its request. If the Commissioned Works cannot be assigned to the Owner by operation of applicable laws or otherwise, the Contractor and Sub-Contractor shall grant to the Owner a world-wide, paid-up, royalty-free and irrevocable sole license to use, exploit, distribute, promote, sub-license third parties, and to create further derivative works of all Commissioned Works.
|
42.4
|
The Contractor may use the Commissioned Works as may be necessary for the purposes of this Agreement only. The Contractor shall not use, disclose to or procure a third party to use or disclose any of the Commissioned Works for any other purpose. For the avoidance of doubt, Articles 42.3 (
Intellectual Property Rights in Relation to the Contractor’s Scope
) and 42.3 (
Intellectual Property Rights in Relation to the Contractor’s Scope
) do not apply to the Contractor Background Intellectual Property.
|
42.5
|
The Owner hereby grants to the Contractor an irrevocable (except in the event of a breach of this license), non-transferable, non-exclusive, royalty-free license to utilise the Owner Background Intellectual Property, Commissioned Works only to the extent necessary for the construction, operation, maintenance, repair, or alteration of the Works. Notwithstanding any provision in this Agreement to the contrary, rights to intellectual property developed, utilized or modified in the performance of the Sub-Contract Works, excluding the Owner Background Intellectual Property, Derivative Works, and the Contractor Background Intellectual Property, shall remain the exclusive property of the Sub-Contractor. The Contractor hereby grants to the Owner an irrevocable (except in the event of a breach of this license), non-transferable, nonexclusive, royalty-free license to utilise the Contractor Background Intellectual Property only to the extent necessary for the operation, maintenance, rectification or repair of the Works.
|
42.6
|
Nothing contained in this Article 42 (
Intellectual Property Rights in Relation to the Contractor’s Scope
) shall be construed as limiting or depriving the Contractor of its rights to use its Project Information, the Contractor Background Intellectual Property and other basic knowledge and skills (but for the avoidance of doubt this shall not include the Owner Background Intellectual Property, or the Commissioned Works) to design or carry out other projects or work for itself or others, whether or not such other projects or work are similar to the work to be performed pursuant to this Agreement. In circumstances where the Contractor is a party to a validly-created and existing contract with the Owner for the repair, modification and conversion of any Moss Type liquefied natural gas tanker into a floating liquefied natural gas production and storage unit using a two-tiered open lower deck sponson attached to the ship's sides, then the Contractor shall notify the Owner before undertaking the same work for a party that is not a Party to the GIMI Direct Agreement. The Contractor shall have the right to retain and use copies of drawings, documents, and engineering and other data furnished or to be furnished by the Contractor and the information contained therein.
|
42.7
|
Rights to the Contractor Background Intellectual Property shall at all times remain the property of the Contractor. Rights to the Owner Background Intellectual Property shall at all times remain the property of the Owner.
|
42.8
|
The Contractor and the Owner shall not use or include any third party Intellectual Property Rights in the performance of this Agreement unless (i) it has all licences, consents and approvals as may be necessary to use or include such third party Intellectual Property Rights in the relevant manner and (ii) it procures any licences or consents as may be necessary to enable the Contractor to use the third party Intellectual Property Rights in accordance with the Agreement.
|
42.9
|
The Owner and the Contractor hereby warrant to each other that:
|
(a)
|
it is the owner of the Project Information provided by it and that it has the right to assign and grant the licences and rights to the other in accordance with this Article 42 (
Intellectual Property Rights in Relation to the Contractor’s Scope
);
|
(b)
|
it has not granted and will not grant any rights to any third party which conflict with or may adversely affect the rights granted to the other under this Article 42 (
Intellectual Property Rights in Relation to the Contractor’s Scope
);
|
(c)
|
the performance of their respective obligations in accordance with this Agreement and/or the GIMI Topsides Agreement and/or the GIMI Direct Agreement will not infringe any rights including, but not limited to Intellectual Property Rights, of any third party, the Owner Background Intellectual Property, the Contractor Background Intellectual Property, or the Sub-Contractor Background Intellectual Property (as the case may be), or the Project Information provided by any other Party to the Party giving this warranty; and
|
(d)
|
it has all necessary rights and licences for the performance of its obligations under this Agreement, the GIMI Topsides Agreement, and the GIMI Direct Agreement.
|
42.10
|
The Contractor shall defend, protect and indemnify and hold the Owner (including its assigns) harmless from and against any third party claims, demands, expenses, liabilities, losses, damages or proceedings (including legal costs on an indemnity basis) in connection with any infringement or alleged infringement of copyright, registered design, trademark rights or patent arising from, out of or in connection with:
|
(a)
|
the Contractor's and/or the Owner's, consistent with the intended purpose, use or possession of the Works of the Contractor under this Agreement or any component or element thereof;
|
(b)
|
the use, consistent with the intended purpose, of any materials or equipment by the Contractor in the performance of the Works by the Contractor under this Agreement or the manner in which the same is used; and/or
|
(c)
|
the use, consistent with the intended purpose, of designs, drawings and specifications furnished to the Owner by the Contractor.
|
42.11
|
The Owner shall defend, protect and indemnify and hold the Contractor (including its assigns) harmless from and against any third party claims, demands, expenses, liabilities, losses, damages or proceedings (including legal costs on an indemnity basis) in connection with any infringement or alleged infringement of copyright, registered design, trademark rights or patent arising from, out of or in connection with:
|
(a)
|
the Owner's and/or the Contractor's, consistent with the intended purpose, use or possession of the Owner Background Intellectual Property, the Works and the Sub-Contract Works or any component or element thereof; and/or
|
(b)
|
the use, consistent with the intended purpose, of Project Information, designs, drawings and specifications furnished to the Contractor and/or the Sub-Contractor by the Owner.
|
42.12
|
The Contractor's obligations pursuant to this Article 42 (
Intellectual Property Rights in Relation to the Contractor’s Scope
) are limited solely to the Contractor's Scope.
|
43.
|
NOTICES
|
43.1
|
Every notice demand or other communication under this Agreement shall be sent by email confirmed in writing. Such notice shall be sent to the respective addresses set out below or to such other address as may be notified in writing for such purpose:-
|
To the Owner:-
|
GOLAR GIMI CORPORATION
c/o Golar Management Ltd. 6th Floor, The Zig Zag, 70 Victoria Street London SQ1E 6SQ United Kingdom |
43.2
|
Every notice demand or other communication sent by email shall be deemed to have been received:
|
(a)
|
if received during working hours, at the time of receipt; or
|
(b)
|
otherwise at the start of working hours on the next Business Day.
|
44.
|
HEALTH, SAFETY, ENVIRONMENT & QUALITY ASSURANCE
|
44.1
|
The Contractor will perform the Works in compliance with, and shall cause its employees and subcontractors to comply, in all respects, with the provisions of Appendix 6 (
Preliminary Site Health, Safety And Environmental Management Plan
) and all applicable safety and health laws, rules and regulations of governmental agencies having jurisdiction in the country where any of the Works is being performed. The Contractor is also responsible for providing and maintaining a safe and healthy work environment on its premises. The Contractor shall provide, at no additional cost to the Owner, all necessary safety induction of the Owner's personnel at the Yard. The Owner shall, and shall ensure that each member of the Owner's personnel shall, at all times, comply with all the Contractor's regulations and Applicable Laws relating to health, safety and the environment.
|
44.2
|
The Contractor shall provide and keep readily available in good working order all safety appliances as well as those reasonably necessary in accordance with good industry practices for safe operation and prescribed by proper bodies and competent authorities.
|
44.3
|
The Contractor shall inform the Owner of any injury/damage to its personnel and/or equipment and to the Owner's personnel and/or materials. The Owner shall inform the Contractor during the performance of the Works, or Sub-Contract Works at the Yard or the Project Site immediately of any situation that is potentially hazardous to workers.
|
44.4
|
The Owner's personnel must possess applicable safety training certificates, and prior to performing work at the Yard, shall be required to have completed a safety induction course (referred to at the Yard as a Shipyard Safety Instruction Course (General Trade)).
|
44.5
|
The Owner shall provide each member of the Owner's personnel at the Yard and Project Site with, or require them to have, appropriate Personal Protective Equipment (PPE) and shall ensure that they use them correctly while working in the Yard's premises or facilities or the Project Site.
|
44.6
|
The Owner shall ensure that its employees and each member of the Owner's personnel at the Yard and Project Site comply with the health, safety and environmental requirements in this Agreement. The Contractor shall be entitled to bar any employee of the Owner or any member of the Owner's personnel who fails to comply with such health, safety and security regulations and Applicable Laws from entry to the Yard's premises.
|
44.7
|
The Contractor shall give all notices and otherwise fully comply with all laws, statutes, regulations, ordinances, rules, standards, orders or determinations of any governmental authority (including related determinations, interpretations, orders or opinions of any judicial or administrative authority) which has jurisdiction over the Contractor and the performance of this Agreement pertaining to the protection or conservation of the air, land, human health, industrial hygiene or other aspects of the environment which are directly applicable to the performance of this Agreement.
|
44.8
|
The Contractor represents and warrants to the Owner that in the performance of the Works, the operations will not contain or otherwise have incorporated into them any chemical, material or other substance defined as or included in the definition of "hazardous substance", "hazardous material", "hazardous chemical", "hazardous chemical substance", "hazardous waste" or "toxic substance" or words of similar meaning and regulatory effect, as such terms are defined under any environmental laws, any broader definition of such terms that are used by a state or locality that has jurisdiction over the performance of this Agreement or any interpretation by administrative or judicial authorities, or any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority or which may or could pose a hazard to human health and safety, such definitions, representations and warranties shall exclude however hydrocarbons, discharged water and production related chemicals.
|
44.9
|
This Agreement shall be carried out under "Quality Assurance" conditions and in accordance with the Specifications. The Quality Plan shall be submitted to the Owner for its approval. Without prejudice to the Contractor's obligations hereunder, the Owner reserves the right to confirm to the Contractor in writing its agreement to the above documentation within thirty (30) Days of submission. If the Owner does not respond within the prescribed time, the documentation submitted shall be deemed accepted by the Owner.
|
44.10
|
The Owner shall indemnify in full, defend and hold the Contractor harmless from and against any and all claims, losses, liability, damages, costs, expenses, demands or proceedings whatsoever and howsoever arising due to and as a result or consequence of asbestos or radioactive or other hazardous waste (or the discharge thereof) from the Vessel and the legal costs in connection therewith (on an indemnity basis) including but not limited to illness, death or personal injury of any person (including, but not limited to, members of the Contractor's Group).
|
45.
|
GENERAL
|
45.1
|
Change in Control
Any change in control in the Owner (save where the control of the Owner passes to an Affiliate of the Owner) shall be permitted only with the prior written consent of the Contractor, such consent not to be unreasonably withheld or delayed. A change in control in the Owner is deemed to occur when a person or persons acting in concert acquire(s) direct or indirect control of (i) over fifty percent (50%) of the total voting rights conferred by all the issued shares in the capital of the Owner which are exercisable in the general meeting of shareholders or (ii) the majority composition of the board of directors of the Owner.
|
45.2
|
Severability
If any of the provisions of this Agreement is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions of this Agreement shall continue in force and shall not in any way be affected or impaired.
|
45.3
|
Headings
Headings are used only for reference and for convenience and do not define, limit or describe the scope of intent of any Article and shall be ignored for purposes of interpretation of this Agreement.
|
45.4
|
Independent Contractor
In the performance of this Agreement, the Contractor is and shall remain an independent contractor. Neither the Contractor nor any one employed by the Contractor shall be deemed for any purpose to be the employee, agent, servant, borrowed servant or representative of the Owner in the performance of the Works.
|
45.5
|
Assignment
Neither Party shall assign this Agreement or any part thereof without the prior written consent of the other Party except that the Owner may assign the Agreement to:
|
(a)
|
Its Affiliate;
|
(b)
|
Its lender(s) or financier(s) for the project involving or involving, inter-alia, the Works;
|
(c)
|
Any other party with the prior written consent of the Contractor, not to be unreasonably withheld or delayed.
|
45.6
|
Not used.
|
45.7
|
Third Party Rights
Nothing in this Agreement is intended to confer any benefit on or intended to be enforceable by or against any person who is not a party to this Agreement. Accordingly, no person other than the Parties may enforce this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999.
|
45.8
|
Counterparts
This Agreement may be signed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any Party may enter into this Agreement by signing any such counterpart and each counterpart may be signed and executed by facsimile and shall be as valid and effectual as if executed as all original.
|
46.
|
TAXES & DUTIES
|
46.1
|
The Contractor shall bear and pay all taxes and duties imposed in Singapore in connection with the execution and/or performance of the Works, excluding any taxes and duties imposed in Singapore upon the OFE.
|
46.2
|
The Owner shall bear and pay all taxes and duties imposed outside Singapore in connection with the execution and/or performance of this Agreement, except taxes and duties imposed upon those items to be procured by the Contractor for the performance of the Works at the Contractor's Yard.
|
47.
|
INTERPRETATION
|
47.1
|
This Agreement and the rights and obligations of the Parties hereunder shall be governed by and construed in accordance with the laws of England.
|
47.2
|
This Agreement and the GIMI Direct Agreement contains the entire agreement and understanding between the Parties and supersedes all prior negotiations, representations, letters of intent, term sheets, undertakings and agreements on any subject matter of this Agreement. Any and all previous agreements and/or arrangements between the Parties shall be superseded and become null and void unless incorporated into this Agreement either by specific reference there to or by attachment to this Agreement as an Appendix hereto.
|
47.3
|
All provisions or requirements contained in the Specifications and the Articles of this Agreement are intended to amplify, explain and complement each other. In the event of any conflict or inconsistency between these documents, the Articles shall take precedence over the Specifications.
|
47.4
|
It is acknowledged that Appendix 1A (
Basis of Design
) is the basis of design that is used in the Lease and Operate Agreement between the Owner and Lessee, which is broader than the scope of work intended for the Contractor to perform and not all of the Basis of Design is applicable to the Works to be undertaken by the Contractor, even if no express deviation is made.
|
47.5
|
If there is any dispute as to whether Appendix 1A (
Basis of Design
), Appendix 12 (
Design, Build and Operations Readiness Requirements
) and/or Appendix 13
(Hold-point Checklists)
is applicable to the Contractor, first the Parties will look to Appendix 1B (
Outline Specification Of Conversion, Specification Of Dry-Docking And Repair Work
) and agree acting reasonably where the Basis of Design impacts Appendix 1B
Outline Specification Of Conversion, Specification Of Dry-Docking And Repair Work
, next the Parties will look at any other provisions or standards in the Agreement that would apply, and finally, if unresolved such dispute shall be resolved with reference to the HILLI design principles. Notwithstanding that the Agreement may contain references to the Lease and Operate Agreement therein, in no event shall the Contractor be obliged to comply with or meet requirements or obligations of the Lease and Operating Agreement to the extent such obligations are not expressly stated this Agreement nor shall it be deemed to have any knowledge of the terms and requirements of the Lease and Operate Agreement.
|
47.6
|
It is also acknowledged that Appendix 12 (
Design, Build and Operations Readiness Requirements
) forms the basis (or terms of review) for the technical meetings between the Owner and the Lessee at certain milestones in the project. The Contractor shall provide such reasonable assistance as the Owner requires in preparing for each technical review meeting and shall assist the Owner in implementing the outcomes and findings from the technical review meetings to the extent reasonably within the scope of the Works.
|
48.
|
DISPUTE RESOLUTION
|
48.1
|
Governing Law
|
48.2
|
Amicable Settlement
|
48.3
|
Expert Determination
|
(a)
|
Any Dispute arising in connection with Articles 13 (
Project Schedule and
Hold-points
) or 14 (
Variation Order
), (a "
Technical Dispute
") that is not resolved pursuant to Article 48.2 (
Amicable Settlement
) may be referred by either Party to an expert for determination ("
Independent Expert
") pursuant to this Article 48.3 (
Expert Determination
). The Party that requires a Technical Dispute to be submitted to an Independent Expert shall send a written notice to the other Party, specifying that such Technical Dispute be submitted to an Independent Expert who shall be designated to consider and decide the issues raised by such Technical Dispute (a "
Technical Dispute Submission
").
|
(b)
|
The Parties shall discuss and seek to agree on a designated Independent Expert within fourteen (14) days of the date of the relevant Technical Dispute Submission. If the Parties fail to designate the Independent Expert within the time period stipulated above, the Independent Expert shall be appointed by the ICC International Centre for ADR in accordance with the Rules for the Appointment of Experts and Neutrals of the International Chamber of Commerce, subject to the provisions set forth in this Article 48.3 (
Expert Determination
). Within twenty one (21) days of the appointment of the Independent Expert, the Parties shall submit to the Independent Expert a notice (a "
Position Notice
") setting forth such Party's position in respect of the issues in dispute. Such Position Notice shall include supporting documentation, if appropriate.
|
(c)
|
The Independent Expert shall complete all deliberations and issue his decision with reasons with regard to the Technical Dispute as promptly as reasonably possible, but in any event within thirty (30) days of the date on which both Position Notices are submitted, unless the Independent Expert reasonably determines that additional time is required in order to give adequate consideration to the issues raised. In such a case, the Independent Expert shall state in writing his reasons for believing that additional time is needed and shall specify the additional period required, which period shall not exceed twenty one (21) days unless the Parties agree otherwise. If the Parties agree to such additional time, the Independent Expert shall render his decision within such extended time period. In resolving a Technical Dispute, the Independent Expert shall consider all facts and circumstances he deems reasonable given the nature of the Technical Dispute.
|
(d)
|
If the Independent Expert fails to notify the Parties of his decision with respect to any Technical Dispute referred to him pursuant to Article 48.3(a) (
Expert Determination
) within the time limit pursuant to Article 48.3(c) (
Expert Determination
), either Party may give notice to the Independent Expert (copying the other Party) requesting it to inform the Parties of its decision within fourteen (14) Days from the date of such notice, failing which such Party may give notice that the Technical Dispute is to be decided by the courts of England and Wales pursuant to Article 48.4
(Courts)
, whereupon the Independent Expert shall give no further consideration to the Technical Dispute and shall not issue a decision.
|
(e)
|
The decision of the Independent Expert shall be binding on the Parties until it is superseded by any decision or award of the arbitral tribunal under Article 48.4 (
Courts
).
|
(f)
|
A Party wishing to challenge the Independent Expert's decision must issue a written notice of dissatisfaction with the decision to the other Party, with a copy to the Independent Expert, within thirty (30) days of such Party's receipt of the Independent Expert's decision, in which event such Technical Dispute may be settled by the courts of England and Wales pursuant to Article 48.4 (
Courts
). In such a case, the Independent Expert's decision will remain binding on the Parties until it is superseded by any decision or award of the courts under Article 48.4 (
Courts
).
|
(g)
|
All individuals appointed by the Parties or the ICC International Centre for ADR as an Independent Expert shall be independent of the Parties and shall be experienced in comparable projects and have the expertise in the area to which such Technical Dispute relates.
|
(h)
|
The Independent Expert shall have the power to award costs as well as interest on any sums awarded as it deems appropriate. All fees and expenses incurred by the Independent Expert shall be borne by the Parties to the Technical Dispute in equal shares, unless the Independent Expert decides otherwise. Each Party shall bear its own costs of participating in the expert determination process (including the costs of its advisors or consultants).
|
(i)
|
The Independent Expert will determine its own procedures for the resolution of the Technical Dispute. The Independent Expert shall act as an expert and not as an arbitrator.
|
48.4
|
Courts
|
(a)
|
Any Dispute that cannot be settled amicably by the Parties under Article 48.2 (
Amicable Settlement
) or by an Independent Expert pursuant to Article 48.3 (
Expert Determination
) may be referred to by either Party to the courts of England and Wales to resolve such dispute and the Parties hereby submit to the non-exclusive jurisdiction of such courts.
|
(b)
|
The Contractor irrevocably appoints as its agent for service of proceedings issued by the Owner in the courts of England: [*****].
|
(c)
|
The Owner irrevocably appoints as its agent for service of proceedings issued by the Contractor in the courts of England: [*****].
|
(d)
|
The Owner irrevocably consents to be joined in any proceedings between the Contractor and the Sub-Contractor which may be relevant to, arise out of, or has or may have any consequence upon the rights or obligations of the Contractor under, pursuant to or in connection with this Agreement.
|
49.
|
SECURITIES
|
49.1
|
As security for its payment obligations under this Agreement, the Owner shall deliver Parent Company Guarantees to the Contractor duly and validly executed by the Owner Guarantors on a several liability basis within five (5) Business Days following the issuance of the Owner’s Final Notice to Proceed.
|
49.2
|
As security for the performance of the Contractor's obligations under this Agreement, the Contractor shall deliver a Parent Company Guarantee to the Owner duly and validly executed by the Contractor Guarantor concurrently with this Agreement or any novation of this Agreement by the Owner to Gimi MS Corporation, a company incorporated and organised under the laws of the Republic of the Marshall Islands, having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960.
|
49.3
|
If any Parent Company Guarantee provided by a Party pursuant to this Agreement is or becomes invalid or unenforceable for any reason whatsoever, or if such security is withdrawn or expires, or if the issuer of the Parent Company Guarantee suffers an Insolvency Event, the Party responsible for procuring such Parent Company Guarantee shall immediately notify the other Party and obtain within ten (10) Days a replacement Parent Company Guarantee which is acceptable to the other Party.
|
49.4
|
The Parties acknowledge that as of the Date of Agreement, the Owner is in the process of seeking external financing in connection with the conversion of the Vessel into an FLNG vessel. As part of any financing package, the Owner shall use best endeavours to procure an undertaking from the credit providers to the Contractor prior to Vessel Leaving the Yard that any sum deferred in accordance with Article 16.4 shall be paid directly by the credit providers to the Contractor. Failing which, the Owner shall provide a substitute security reasonably acceptable to the Contractor (including considering the adequacy of the existing Owner Parent Company Guarantee) if and when it decides to exercise its right to defer payment pursuant to Article 16.4B.
|
50.
|
STEP-IN AGREEMENTS
|
50.1
|
The Contractor shall, upon the Owner's request, enter into and deliver to the Owner Step-In Agreements;
|
(a)
|
with the Lessee; and
|
(b)
|
with the Lessee and the Owner's credit providers,
|
50.2
|
Following a request by the Lessee, the Contractor shall enter into a novation of this Agreement on termination of the Lease and Operate Agreement.
|
51.
|
COMPLIANCE WITH ANTI-BRIBERY LAWS AND SANCTIONS
|
51.1
|
For purposes of this Article 51 (
Compliance with Anti-Bribery Laws and Sanctions
) the following term shall have the following meaning:
|
51.2
|
The Contractor represents and warrants that, in connection with this Agreement and the Works:
|
(a)
|
it is knowledgeable about Anti-Bribery Laws applicable to the performance of this Agreement and shall comply with all such Anti-Bribery Laws; and
|
(b)
|
neither it nor, to the best of its knowledge and belief, any other member of the Contractor's Group have made, offered or authorised or will make, offer or authorise any payment, gift, promise or other advantage, whether directly or through any other person or entity, to or for the use or benefit of any Government Official or any person where such payment, gift, promise or other advantage would (i) compromise a facilitation payment; and/or (ii) violate the Anti-Bribery Laws.
|
51.3
|
The Contractor undertakes to immediately notify the Owner if, in connection with this Agreement or the Works, it receives or becomes aware of any request from a Government Official or any person for any payment, gift, promise or other advantage of the type mentioned in Article 51.2(b) (
Compliance with Anti-Bribery Laws and Sanctions
).
|
51.4
|
The Owner confirms that its appointment of the Contractor was expressly made on the basis that Anti-Bribery Laws would not be violated. The Contractor acknowledges that the contents of this Agreement may be disclosed by the Owner to governmental authorities (or their duly-authorised agents) for the purpose of demonstrating compliance with this Article 51 (
Compliance with Anti-Bribery Laws and Sanctions
).
|
51.5
|
The Contractor shall indemnify, defend and hold harmless the Owner's Group from and against, any and all losses, damages, claims, expenses (including legal costs), fines and penalties incurred by the Owner's Group arising out of the Contractor's representations in this Article 51 (
Compliance with Anti-Bribery Laws and Sanctions
) being untrue or arising out of the Contractor's breach of any of its representations, warranties and undertakings in this Article 51 (
Compliance with Anti-Bribery Laws and Sanctions
).
|
51.6
|
Failure to comply with any obligation under this Article 51 (
Compliance with Anti-Bribery Laws and Sanctions
) will be regarded as due cause for the Owner to give notice to terminate this Agreement in accordance with Article 33.1(g) (
Termination for Cause
).
|
51.7
|
The Contractor and all other members of the Contractor's Group subject to the Anti-Bribery Laws shall maintain adequate internal controls and procedures to assure compliance with Anti-Bribery Laws, including procedures to ensure that all transactions in connection with the Works are accurately recorded and reported in its books and records to truly reflect the activities to which they pertain, such as the purpose of each transaction and to whom it was made or from whom it was received.
|
51.8
|
The Contractor shall maintain, either physically, by electronic media or on microfilm, all records and information related to this Agreement and/or any work statement in connection therewith for a period of five (5) years after the later of: (i) the end of the Warranty Period; or (ii) in the event of termination, the date of termination.
|
51.9
|
In the event an Authority undertakes a lawful investigation of the Owner's violation of obligations under the Anti-Bribery Laws the Owner shall have the right to employ, at the Owner's expense, an unaffiliated third party to audit all information, rates and costs and expenses related to this Agreement in connection therewith at any time during and within five (5) years after the later of: (i) the end of the Warranty Period; or (ii) in the event of termination, the date of termination. Subject to the consent of the relevant Authority or Authorities, the Contractor shall be provided with a complete copy of the audit upon its completion and prior to its submission to the Owner solely for the purpose of ensuring that none of the Contractor's pricing, mark-up and profit margins are disclosed. The third party authorised by the Owner may have access at all reasonable times to any place where the records are being maintained and the Contractor shall afford every reasonable facility for this right of access. The third party authorised by the Owner shall have the right to reproduce and retain copies of any of the aforesaid records or information subject to an obligation of confidentiality consistent with the one in this Agreement, and subject further to the exclusion or redaction of any documents to the extent they show the Contractors pricing, mark-up and profit margins, except to the extent necessary to disclose alleged violations of the Anti-Bribery Laws, comply with Applicable Laws or the instructions of the Authorities. The Contractor shall implement all agreed recommendations arising from audits within a time mutually agreed with the Owner.
|
51.10
|
Upon the Owner's request the Contractor will, as soon as reasonably practical, provide the person authorised by the Owner with all records relating to the Contractor and/or, to the extent reasonably available, any work statement in connection therewith which are created or kept by any other member of the Contractor's Group.
|
51.11
|
The Contractor shall not, and shall not knowingly permit or authorise any member of the Contractor's Group to, directly or indirectly, procure any equipment or any enter into any arrangement or do anything in connection with this Agreement or the Works with, or for the benefit of, any Restricted Party or undertake the Works in a manner, or do or omit to do anything, that would reasonably be expected to result in the Owner or any member of the Owner's Group being in breach of any Sanctions or becoming a Restricted Party.
|
52.
|
AUDIT
|
52.1
|
For items invoiced on a cost reimbursable basis, the Contractor shall keep, in accordance with generally accepted accounting principles and practices, books, records and accounts pertaining to the performance of the Works under this Agreement, including the Contractor's personnel records (i.e. records of time sheets), receipts, vouchers, computer accessible financial data howsoever stored, bid files, original estimates, change order files, and general ledger entries, for the purposes of enabling the Owner (or such other person authorised by the Owner), at the Owner’s cost, to conduct an audit and to verify that the Contractor has incurred the costs being invoiced and that such amounts have been invoiced in accordance with this Agreement. The Contractor shall be provided with a complete copy of the audit upon its completion. The Contractor shall not be required to keep records of or provide access to those of its costs expressed as fixed rates or a lump sum, or of costs which are expressed in terms of percentages of other costs.
|
52.2
|
The Contractor shall make such information and documentation available to the Owner (or such other person authorised by the Owner) for inspection during normal working hours. The Contractor shall preserve such documents and information for a period of at least [*****] following termination of this Agreement, or the end of the Warranty Period, whichever is earlier to occur.
|
52.3
|
If an audit indicates errors in the Contractor's invoices, or in any charges, the Contractor shall promptly refund overpayments to the Owner within [*****] of the Owner's invoice for such amount(s) together with interest calculated at the lesser of the maximum rate allowed by applicable law or LIBOR plus two per cent per annum commencing from the date the relevant payment was made by the Owner to the Contractor until refunded. Errors in the Contractor's favour shall be paid by the Owner within [*****] of the Contractor's invoice therefor.
|
52.4
|
The Owner will notify the Contractor of any errors or other matters arising in an audit and within a period of [*****] from such notification the Parties shall consult with each other with a view to resolving such matters. In the event that the Parties fail within a further period of [*****] to reach agreement as to the extent of the adjustment then the matter shall be resolved in accordance with Article 48 (
Dispute Resolution
).
|
53.
|
DIGITAL SECURITY
|
53.1
|
The Contractor shall, in accordance with Applicable Laws and good industry practice implement, maintain, and ensure that its subcontractors
that will have direct or indirect access to the Lessee's Confidential Information and/or Lessee’s IT systems (whether through email or other form of electronic communication or otherwise) implement and maintain:
|
(a)
|
technical and organisational measures; and
|
(b)
|
adequate security programmes and procedures to:
|
(i)
|
prevent any accidental, unauthorised or unlawful access to, processing, loss, destruction, damage, disclosure, or other misuse of the Lessee's Confidential Information; and
|
(ii)
|
protect the Contractor's IT systems used to provide the Works.
|
53.2
|
The Contractor shall ensure that the measures outlined in Article 53 (
Digital Security
) include:
|
(a)
|
boundary firewalls and internet gateways to protect the Contractor's networks and IT systems from the internet and other external networks;
|
(b)
|
secure configuration of the Contractor's networks, IT systems, applications and devices, including encryption of portable devices and removable media;
|
(c)
|
physical and logical access controls that restrict access to only authorised users to the extent required to perform the Works;
|
(d)
|
malware protection software that is designed to prevent the introduction of malware into the Contractor's IT systems, networks and devices;
|
(e)
|
patch management practices to identify, assess and apply applicable security patches the Contractor's IT systems, applications and devices;
|
(f)
|
training and awareness for the Contractor's personnel in information security and the handling of personal data in accordance with the terms of this Agreement; and
|
(g)
|
clearly defined security responsibilities, and processes for risk management, access control, authorization and administration, security design and configuration management, audit, and assurance.
|
53.3
|
The Owner shall have the right to audit the measures outlined in Article 53.1 (
Digital Security
) of the Sub-Contractor and any relevant subcontractors annually to confirm such measures comply with the requirements of this Article 53 (
Digital Security
) and to assess the adequacy of the measures in place. Such audit shall be with two (2) weeks' prior written notice and take place within normal working hours. The Contractor shall be reimbursed for its reasonable costs in assisting with the performance of such audit. The Owner may exercise its rights hereunder using its own employees or a third party auditor.
|
53.4
|
The Contractor shall investigate and promptly notify the Owner in writing, using the notice provisions in Article 43 (
Notices
), of any suspected or actual act, omission, or potential issue which may result in access to, processing, destruction, loss, damage or disclosure of the Owner's Confidential Information or data and/or any cyber-attacks on the Contractor's IT systems. In the event that such a situation arises, the Contractor shall, at its own cost if such event is due to a failure to comply with its obligations in this Article 53 (
Digital Security
) or Article 41 (
Confidentiality
), cooperate fully with the Owner to provide such assistance as required by the Owner to resolve any potential or actual adverse effects, including with notifications that may be required under applicable law.
|
53.5
|
The Owner and the Contractor agree that the contents of Appendix 18 (Information Security Requirements for Suppliers) set out what the Owner desires the Contractor to comply with but as of the Date of Agreement, the Contractor has not approved its contents. The Owner and Contractor shall (promptly but in any event within three (3) months following the LNTP Date) discuss in good faith what parts of the appendix are reasonable for the Contractor to comply with provided that the Contractor shall not be obliged to comply with provisions which require it to incur additional material costs unless the Owner agrees to reimburse such reasonable and documented costs and, to the extent the performance of the Works is materially impacted, allow an adjustment to the Project Schedule.
|
54.
|
HUMAN RIGHTS
|
54.1
|
The Contractor confirms that it has carefully reviewed the Lessee's Business and Human Rights policy which is available at the www.bp.com website. In connection with the performance by the Contractor of its respective obligations under this Agreement and consistent with the policy, each of the Contractor shall conduct its business in a manner that respects the rights and dignity of all people and internationally recognised human rights, including without limitation:
|
(a)
|
not employing, engaging or otherwise using forced labour, trafficked labour or exploitative child labour; nor engaging in or condoning abusive or inhumane treatment of workers;
|
(b)
|
providing workers with written terms and conditions under which they will work in a language understandable to the worker;
|
(c)
|
not requiring workers to pay charges or fees under any pretext in consideration for employment or applying deductions from the workers' remuneration as collateral for continued service;
|
(d)
|
not withholding travel or other identity documents or otherwise unreasonably inhibiting the free movement of any workers (directly or indirectly);
|
(e)
|
providing access to effective grievance mechanisms, providing equal opportunities, avoiding retaliation or discrimination and respecting freedom of association of workers, in each case within the relevant national legal framework; and
|
(f)
|
mitigating or avoiding adverse human rights impacts to communities arising from the Contractor's activities to the extent practicable.
|
BASIS OF DESIGN
|
184
|
TECHNICAL SPECIFICATION
|
185
|
ACCEPTANCE TESTS AND ACCEPTANCE APPRAISALS
|
186
|
INTEGRATED PROJECT SCHEDULE
|
187
|
DESIGN, BUILD AND OPERATIONAL READINESS REQUIREMENTS
|
188
|
RESPONSIBILITY FOR COMPLIANCE
|
189
|
FEED GAS USAGE ALLOWANCE
|
190
|
HSSE REQUIREMENTS
|
191
|
CERTIFICATE OF ACCEPTANCE
|
192
|
INFORMATION SECURITY REQUIREMENTS FOR SUPPLIERS
|
193
|
LESSEE VARIATION REQUEST
|
194
|
VARIATION ORDER PROPOSAL
|
195
|
VARIATION ORDER
|
196
|
OPERATING SERVICES
|
197
|
FORM OF DEED OF ACCESSION
|
198
|
CONTINUATION CRITERIA
|
199
|
[NOT USED]
|
200
|
BASE WORK PROGRAMME AND BUDGET CYCLE
|
201
|
FORM OF FIRST ANNUAL DELIVERY PROGRAMME
|
202
|
FEED GAS AND LNG SPECIFICATION
|
203
|
FORM OF CREDIT SUPPORT
|
204
|
BARE BOAT CHARTER
|
205
|
FORM OF DEED OF NOVATION
|
206
|
FORM OF STEP-IN AGREEMENT
|
207
|
FORM OF QUIET ENJOYMENT UNDERTAKING
|
208
|
LOCALISATION PLAN
|
209
|
APPROVED VENDOR LIST
|
210
|
(1)
|
GIMI MS CORPORATION
, a company incorporated and organised under the laws of the Republic of the Marshall Islands, having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960 (the "
Owner
"); and
|
(2)
|
BP MAURITANIA INVESTMENTS LIMITED
, a company incorporated and organised under the laws of England and Wales having its registered office at Chertsey Road, Sunbury On Thames, Middlesex, United Kingdom, TW16 7BP and with a registered branch in Mauritania with registration number 94860/GU/15869 ("
BPMIL
") in its capacity as the Unit Operator and for and on behalf of the Co-venturers (the "
Lessee
").
|
(A)
|
BPMIL is the Block C8 Operator pursuant to an amended and restated joint operating agreement dated 1 December 2014 between the Block C8 Owners (the "
Block C8 JOA
") and a contract for the exploration and production of hydrocarbons in Block C8, offshore Mauritania, dated 5 April 2012 between the Block C8 Owners and the Islamic Republic of Mauritania.
|
(B)
|
BP Senegal Investments Limited ("
BPSIL
") is the Saint Louis Offshore Profond Block Operator pursuant to a joint operating agreement dated 26 September 2012 between the Saint Louis Offshore Profond Block Owners (the "
Saint Louis Offshore Profond Block JOA
") and a contract for the exploration and production of hydrocarbons in the Saint Louis Offshore Profond Block, offshore Senegal, dated 17 January 2012 between the Saint Louis Offshore Profond Block Owners and the Republic of Senegal.
|
(C)
|
BPMIL is the Unit Operator pursuant to the UUOA.
|
(D)
|
BPMIL, BPSIL and GLNG are parties to a Preliminary Agreement originally entered into on 6 October 2017 relating to certain commitments and options for two FLNG facilities for the Greater Tortue / Ahmeyim Field offshore Mauritania and Senegal (the "
Preliminary Agreement
").
|
(E)
|
The Owner is an incorporated joint venture between Golar LNG Limited and First FLNG Holdings PTE. LTD.
|
(F)
|
The Owner intends to incorporate a wholly owned subsidiary to be the entity who will perform the Operating Services, such entity to be incorporated and organised under the laws of the Islamic Republic of Mauritania as Golar MS Operator S.A.R.L. (the "
Operator
").
|
(G)
|
In accordance with the Preliminary Agreement, the Parties wish to record their rights and obligations with respect to the design, engineering, conversion, construction, procurement, fabrication, pre-commissioning, classification, transit, mooring, installation, connection, testing and commissioning, operations readiness and demobilisation, and the lease, operation and maintenance, of the FLNG Facility for the GTA Project.
|
(H)
|
This Agreement sets out the terms and conditions upon which the Owner will make available, and the Operator will operate and maintain, the FLNG Facility for use by the Lessee in the GTA Project.
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
(a)
|
is directly or indirectly Controlled by such person; or
|
(b)
|
directly or indirectly Controls such person; or
|
(c)
|
is directly or indirectly Controlled by a person that also directly or indirectly Controls such person,
|
(i)
|
Golar Partners LP (a NASDAQ listed master limited partnership) for so long as GLNG directly or indirectly holds one hundred percent (100%) of the general partner interest;
|
(ii)
|
any other master limited partnership operated by GLNG and in which GLNG directly or indirectly holds one hundred percent (100%) of the general partner interest;
|
(iii)
|
Keppel Infrastructure Trust (a Singapore Exchange listed business trust); and
|
(iv)
|
any fund, trust, limited partnership, company or other collective investment schemes which is managed by a subsidiary of Keppel Corporation Limited (excluding Keppel Shipyard).
|
(a)
|
the first Billing Period shall begin at 00.00 hours on the Commissioning Start Date and end at 24.00 hours on the last Day of the calendar month in which the Commissioning Start Date occurs; and
|
(b)
|
the final Billing Period shall begin at 00.00 hours on the first (1
st
) Day of the calendar month in which the Lease Period ends and end at 24.00 hours on the last Day of the Lease Period.
|
(a)
|
Black & Veatch Corporation, a company registered in the state of Delaware, United States of America whose registered office is at 11401 Lamar Avenue, Overland Park, KS, 66211, United States of America;
|
(b)
|
Black & Veatch Singapore Pte. Ltd, a company incorporated in Singapore whose registered office is at 491B, River Valley Road, #06-01/04 Valley Point, Singapore 248373;
|
(c)
|
Black & Veatch International Company, a company registered in the state of Missouri, United States of America, whose registered office is at 8400 Ward Parkway, Kansas City, MO 64114, United States of America; and
|
(d)
|
Black & Veatch (Beijing) Engineering Design Co., Ltd, a company registered in the People's Republic of China whose registered office is at 15/F, SK Tower, No.6 Jia, Jianwai Avenue, Chaoyang District, Beijing, China 100022.
|
(a)
|
any requirements of the relevant Classification Society;
|
(b)
|
any applicable Mauritanian or Senegalese Law;
|
(c)
|
any other applicable Laws;
|
(d)
|
the Feed Gas Specification;
|
(e)
|
the LNG Specification;
|
(f)
|
the requirements of:
|
(i)
|
International Standards;
|
(ii)
|
international maritime regulations; or
|
(iii)
|
international LNG regulations,
|
(g)
|
the requirements of any LNG Carriers onto which the Lessee will load LNG;
|
(h)
|
the operating security environment applicable to the FLNG Facility and/or any necessary land support facilities;
|
(i)
|
Schedule 1 (
Basis of Design
) and/or Schedule 2 (
Technical Specification
) (including if the Parties agree, acting reasonably, that an assumption contained in Schedule 1 (
Basis of Design
) and/or Schedule 2 (
Technical Specification
) is incorrect);
|
(j)
|
a Project Compliance Assumption;
|
(k)
|
the requirements of Schedule 5 (
Design, Build and Operational Readiness Requirements
);
|
(l)
|
the requirements of Schedule 8 (
HSSE Requirements
); or
|
(m)
|
the Performance Standards at the request of the Lessee.
|
(a)
|
all claims and losses of any kind and description including, without limitation, claims and losses in respect of liabilities, privileges, liens and other encumbrances, obligations, interest, costs or expenses; and
|
(b)
|
awards, judgments, causes of action and damages of all kinds and descriptions,
|
(a)
|
consequential loss; and/or
|
(b)
|
loss of production, loss of product, loss of use, loss of business and business interruption and loss of revenue, profit or anticipated profit whether direct or indirect,
|
(a)
|
the first Contract Year shall be the period from and including the Commercial Operations Date up to and including 31 December of the same calendar year; and
|
(b)
|
the final Contract Year shall be the period from and including 1 January of the year in which the Lease Period ends up to and including the last Day of the Lease Period.
|
(a)
|
a step-in agreement entered into by the Initial Lenders in favour of the Lessee substantially in the form set out in Schedule 24 (
Form of Step-In Agreement
) and a quiet enjoyment undertaking (or equivalent direct agreement) entered into
|
(b)
|
any direct agreement entered into by the Lenders in favour of the Lessee pursuant to Clause 28.1 (
Owner Financing
).
|
(a)
|
between the Commercial Operations Date and the date the Acceptance Appraisals are passed in accordance with Clause 7.14 (
Acceptance Appraisals
); and
|
(b)
|
on and from the date the Acceptance Appraisals are passed in accordance with Clause 7.14 (
Acceptance Appraisals
) for the remaining duration of the Lease Period,
|
(a)
|
the FLNG Facility is ready to depart the Singapore shipyard of Keppel Shipyard, as more particularly described in section 2.7 of Schedule 5 (
Design, Build and Operational Readiness Requirements
);
|
(b)
|
the FLNG Facility is ready to enter the Lessee's Operating Boundary, as more particularly described in section 2.8 of Schedule 5 (
Design, Build and Operational Readiness Requirements
); and
|
(c)
|
Feed Gas is first ready to be introduced to the FLNG Facility, as more particularly described in section 2.9 of Schedule 5 (
Design, Build and Operational Readiness Requirements
).
|
(a)
|
any resolution is passed or order made for the winding-up, dissolution, administration or reorganisation of that person, a moratorium is declared in relation to any indebtedness of that person;
|
(b)
|
any composition, compromise, assignment or arrangement is made with any of its creditors other than as permitted by this Agreement;
|
(c)
|
it seeks or becomes subject to the appointment of any liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of that person or any of its assets;
|
(d)
|
it is dissolved (other than pursuant to a consolidation, amalgamation or merger permitted by this Agreement);
|
(e)
|
it becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
(f)
|
it has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation which is not discharged within thirty (30) Days;
|
(a)
|
it suspends or threatens to suspend making payments on its debts generally;
|
(b)
|
by reason of actual or anticipated financial difficulties, it commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness;
|
(c)
|
any analogous procedure or step referred to in paragraphs (a) to (h) of this definition is taken in respect of such person in any jurisdiction; or
|
(d)
|
it takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
(a)
|
the design, engineering, procurement, construction, fabrication, transportation, installation, hook-up, commissioning, testing, operation and/or maintenance of upstream Natural Gas project facilities;
|
(b)
|
the design, engineering, conversion, procurement, construction, fabrication, pre-commissioning, transportation, mooring, installation, hook-up, testing commissioning, operation, maintenance and/or demobilisation of floating LNG liquefaction and offloading facilities;
|
(c)
|
LNG terminals; and/or
|
(d)
|
other floating LNG-related facilities and vessels,
|
(a)
|
the London interbank offered rate for one (1) month USD deposits, as published by the Financial Times in London or, if not so published, by The Wall Street Journal, applicable on the first Business Day prior to the due date of payment and thereafter on the first Business Day of each succeeding calendar month;
|
(b)
|
if no such rate is published at the relevant time, the arithmetic mean (rounded upwards to five decimal places) of the rates quoted by the principal London offices of four (4) prime banks in the London interbank market on the Day that is one London banking Day prior to the relevant period for deposits in USD; or
|
(c)
|
if the rates referred to in paragraphs (a) and (b) of this definition are not available in respect of the relevant period for any reason, such comparable rate as the Parties may agree.
|
(a)
|
completion of the FEED Update Work, as more particularly described in Appendix 1 of Schedule 5 (
Design, Build and Operational Readiness Requirements
); and
|
(b)
|
the point in time immediately prior to entry by or on behalf of the Owner into the Key Contracts, as more particularly described in Appendix 1 of Schedule 5 (
Design, Build and Operational Readiness Requirements
).
|
(a)
|
the Change of Control results in ongoing Control of the Owner by a person that:
|
(i)
|
is directly or indirectly Controlled by GLNG; or
|
(ii)
|
directly or indirectly Controls GLNG; or
|
(i)
|
is directly or indirectly Controlled by a person that also directly or indirectly Controls GLNG; or
|
(b)
|
the Change of Control results from the acquisition (whether through merger, spin-off, sale of shares or other equity interests or otherwise) of the Owner's ultimate holding company.
|
(a)
|
substantial completion of detailed design work in relation to the FLNG Facility, as more particularly described in section 2.5 of Schedule 5 (
Design, Build and Operational Readiness Requirements
); and
|
(b)
|
the point in time at which twenty percent (20%) of the works to be undertaken by the Key Contractors have been completed, as more particularly described in section 2.6 of Schedule 5 (
Design, Build and Operational Readiness Requirements
).
|
(a)
|
in relation to the Core Work, those works, services or systems materially impacting on or directly related to:
|
(i)
|
[*****];
|
(ii)
|
[*****];
|
(iii)
|
[*****];
|
(iv)
|
[*****];
|
(v)
|
[*****];
|
(vi)
|
[*****];
|
(vii)
|
[*****];
|
(viii)
|
[*****];
|
(ix)
|
[*****];
|
(x)
|
[*****];
|
(xi)
|
[*****];
|
(xii)
|
[*****];
|
(xiii)
|
[*****];
|
(xiv)
|
[*****];
|
(xv)
|
[*****];
|
(xvi)
|
[*****];
|
(xvii)
|
[*****];
|
(xviii)
|
[*****];
|
(xix)
|
[*****];
|
(xx)
|
[*****]; and
|
(xxi)
|
[*****]; and
|
(b)
|
[*****]:
|
(i)
|
[*****];
|
(ii)
|
[*****]; and/or
|
(iii)
|
[*****].
|
(a)
|
the Target Connection Date pursuant to Clause 7.9(a) (
Target Connection Date
) (excluding any extensions pursuant to Clause 7.9(b)
(
Target Connection Date
)); and
|
(b)
|
[*****]; and
|
(c)
|
the Scheduled Commissioning Period, excluding any extension pursuant to Clause 7.12(a)(i) (
Commissioning Period
).
|
(a)
|
any individual of such person or one of its Affiliates who is its senior manager, or resident manager, who directs all operations and activities of such person in respect of the GTA Project;
|
(b)
|
any individual of such person or one of its Affiliates who is at a management level equivalent to or superior to the individual referred to in sub-paragraph (a), including specifically any officer or director of such person or one of its Affiliates, who has authority in relation to the operations and activities in respect of the GTA Project; or
|
(c)
|
any individual with management or supervisory responsibilities in relation to the operations and activities in respect of the GTA Project and who directly reports to an individual referred to in sub-paragraphs (a) or (b),
|
1.2
|
Interpretation
|
(a)
|
words importing the singular shall also include the plural and vice versa;
|
(b)
|
references to Recitals, paragraphs, Clauses and Schedules are references to the recitals, paragraphs and clauses of, and schedules to, this Agreement;
|
(c)
|
the Schedules and the Manuals and Protocols shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include the Schedules and the Manuals and Protocols. In the event of any conflict between the main body of this Agreement and the Schedules or the Manuals and Protocols, the main body shall take precedence;
|
(d)
|
"
includes
" and "
including
" mean (respectively) "
includes, but is not limited to
" and "
including, but not limited to
";
|
(e)
|
a "
person
" includes any individual, company, corporation, firm, partnership, joint venture, association, body corporate, organisation, trust, institution, Government Authority or other legal entity (in each case whether or not having
|
(f)
|
references to any statute or other law include a reference to every order, by-law, instrument, regulation, directive or plan having the force of law made thereunder or deriving validity therefrom and any amendment or re-enactment of the same from time to time in force; and
|
(g)
|
any reference to any agreement (including this Agreement) or other document shall be a reference to the same as it may be amended, varied, supplemented, novated or replaced from time to time.
|
2.
|
TERM AND EFFECTIVENESS
|
2.1
|
Term
|
(a)
|
the twentieth (20
th
) Commercial Operations Date Anniversary; and
|
(b)
|
the last date of the Additional Term (if applicable).
|
2.2
|
Effectiveness of Agreement
|
2.3
|
Lessee's Conditions Precedent
|
(a)
|
any enabling legislation in relation to the ICA having been passed and any further steps necessary for such legislation to be effective (including ratification by the relevant Governmental Authority) having been carried out;
|
(b)
|
receipt by the Lessee of Approval of the plan of development for the GTA Project and the exploitation licences for the Unit Area;
|
(c)
|
any relevant construction contracts for the Upstream Project having been entered into by the relevant parties thereto;
|
(d)
|
the Owner Credit Support having been provided to the Lessee;
|
(e)
|
the Lessee having provided the Owner with written notice that FID has been taken in respect of the GTA Project; and
|
(f)
|
all Lessee Permits identified in accordance with Schedule 6 (
Responsibility for Compliance
) as necessary for the commencement of work on the Upstream Project having been granted to the Lessee.
|
2.4
|
Owner's Conditions Precedent
|
(a)
|
the Lessee Credit Support having been provided to the Owner; and
|
(b)
|
all Owner Permits and Operator Permits identified in accordance with Schedule 6 (
Responsibility for Compliance
) as necessary for the commencement of the Work having been granted to the Owner or the Operator (as applicable).
|
2.5
|
Satisfaction of Conditions Precedent
|
(a)
|
Promptly following execution of this Agreement:
|
(i)
|
the Owner shall use all reasonable endeavours to satisfy, or procure the satisfaction of:
|
(A)
|
the Owner's Conditions Precedent set out in Clause 2.4(b) (
Owner's Conditions Precedent
); and
|
(B)
|
the Lessee's Conditions Precedent set out in Clause 2.3(d) (
Lessee's Conditions Precedent
); and
|
(ii)
|
the Lessee shall use all reasonable endeavours to satisfy, or procure the satisfaction of:
|
(A)
|
the Lessee's Conditions Precedent set out in Clause 2.3(f) (
Lessee's Conditions Precedent
); and
|
(B)
|
the Owner's Conditions Precedent set out in Clause 2.4(a) (
Owner's Conditions Precedent
),
|
(b)
|
The Parties shall keep each other regularly informed as to the progress towards achieving satisfaction of their respective Conditions Precedent.
|
(c)
|
If the Lessee Group decides, in its sole discretion, to take FID in respect of the GTA Project, the Lessee shall promptly provide the Owner with written notice that FID has been taken and the date thereof ("
FID Notice Date
").
|
2.6
|
Waiver of Conditions Precedent
|
(a)
|
The Lessee may, in its sole discretion, waive the requirement for satisfaction of one or more of the Lessee's Conditions Precedent set out in Clause 2.3 (
Lessee's Conditions Precedent
).
|
(b)
|
The Owner may, in its sole discretion, waive the requirement for satisfaction of one or more of the Owner's Conditions Precedent set out in Clause 2.4 (
Owner's Conditions Precedent
).
|
(c)
|
If all Conditions Precedent have been satisfied in full or waived in accordance with this Clause 2.6 (
Waiver of Conditions Precedent
) other than the Owner's Conditions Precedent set out in Clause 2.4(b) (
Owner's Conditions Precedent
) due to the Owner's failure to incorporate an entity to be the Operator pursuant to Clause 3.1(b) (
Owner's General Obligations
), the Parties agree that, for the purposes of Clause 2.7 and determining the Effective Date, the requirement to satisfy the Owner's Conditions Precedent set out in Clause 2.4(b) is deemed to have been waived on the date of satisfaction in full or waiver of the immediately preceding Conditions Precedent.
|
2.7
|
Termination for Failure to Satisfy Conditions Precedent
|
3.
|
OWNER AND OPERATOR OBLIGATIONS
|
3.1
|
Owner's General Obligations
|
(a)
|
Subject to and in accordance with the terms of this Agreement, the Owner shall:
|
(i)
|
perform, or procure the performance of the Work (as amended pursuant to any Variation);
|
(ii)
|
provide the FLNG Facility to the Lessee; and
|
(iii)
|
procure the performance of the Operating Services by the Operator,
|
(b)
|
As soon as reasonably practicable following the date of this Agreement, the Owner shall incorporate a wholly owned subsidiary to be the Operator, such entity to be incorporated and organised under the laws of the Islamic Republic of Mauritania as Golar MS Operator S.A.R.L. The Owner shall procure that the entity so incorporated executes a deed of accession to this Agreement substantially in the form set out in Schedule 15 (
Form of Deed of Accession
) promptly on incorporation.
|
(c)
|
For so long as the Owner has not incorporated an entity to be the Operator, or the incorporated entity has not executed a deed of accession to this Agreement, pursuant to Clause 3.1(b) (
Owner's General Obligations
), the Owner shall perform, or procure the performance of, the obligations (if any), and may enforce the rights (if any), of the Operator under this Agreement.
|
(d)
|
If the Operator fails to perform any of its obligations under this Agreement, including the Operating Services, the Owner shall perform, or procure the performance of, such obligations in place of the Operator.
|
(e)
|
If the Owner performs or procures the performance of the obligations of the Operator pursuant to Clauses 3.1(c) or 3.1(d) (
Owner's General Obligations
):
|
(i)
|
the Owner shall be liable to the Lessee for the obligations of the Operator under this Agreement; and
|
(ii)
|
the Lessee shall be entitled to enforce its rights in relation to the obligations owed to it by the Operator under this Agreement against the Owner together with its rights under Clause 13.1(c)(ii) (
Elements of the Dayrate
).
|
3.2
|
Conduct of Work
|
(a)
|
provide sufficient competent and suitably qualified Personnel to ensure the proper and timely performance of the Work;
|
(b)
|
ensure the performance of any Work carried out by the relevant Key Contractors (and their respective subcontractors of any tier) and any of its other subcontractors of any tier is in accordance with the requirements of the Conversion Contracts and the relevant subcontracts (as applicable) and in a manner which is consistent with International Standards to the extent that this Agreement does not prescribe the relevant standard;
|
(c)
|
comply with its obligations under the Conversion Contracts and any subcontracts entered into in accordance with Clause 3.5 (
Subcontracting
);
|
(d)
|
be responsible for the adequacy of the HSSE standards that are to be implemented in connection with the performance of the Work, and the adequacy, safety and stability of all operations and methods necessary for the performance of the Work;
|
(e)
|
comply with all agreed Variations;
|
(f)
|
be responsible for obtaining and maintaining Owner Permits, provided that any Operating Boundary Licences and Consents shall be obtained and maintained subject to and in accordance with Schedule 6 (
Responsibility for Compliance
);
|
(g)
|
upon request of the Lessee, provide the Lessee with reasonable assistance to obtain the Lessee Permits including in accordance with Schedule 6 (
Responsibility for Compliance
);
|
(h)
|
be responsible at all times for scheduling, progress reporting, forecasting and independently controlling the progress of the Work in order to:
|
(i)
|
meet the Project Schedule; and
|
(ii)
|
satisfy the requirements of Schedule 5 (
Design, Build and Operational Readiness Requirements
); and
|
(i)
|
ensure that the FLNG Facility shall be of good and sound design, materials and workmanship and shall at all times be fit for the purpose described in this Agreement,
|
3.3
|
PA Work
|
(a)
|
The Owner confirms that the PA Work is accurate, complete and sufficient to enable the Owner to perform the Core Work in accordance with all requirements of this Agreement, including the Project Schedule.
|
(b)
|
Upon the Effective Date of this Agreement, the PA Work shall be deemed for all purposes to have been performed by the Owner under this Agreement and shall be subject to the terms and conditions of this Agreement in all respects.
|
(c)
|
The Owner and Operator confirm that they have reviewed the terms of the Preliminary Agreement.
|
(d)
|
The Lessee makes no guarantee or warranty, express or implied, as to the accuracy, adequacy or completeness of the PA Work.
|
(e)
|
The Parties acknowledge that the Lessee and GLNG have:
|
(i)
|
confirmed that the basis of design for the FLNG Facility attached to the Heads of Terms (as defined in the Preliminary Agreement) had been progressed to their satisfaction for the purposes of clause 3.4.1(b) of the Preliminary Agreement, subject to the clarifications set out in paragraph 3.1 of the exchange of notices between the Lessee, BPSIL and GLNG dated 19 April 2018, pursuant to the Preliminary Agreement, and served as the basis for the PA Work; and
|
(ii)
|
achieved the requirements of the PA Hold-points in accordance with Appendix 1 of Schedule 5 (
Design, Build and Operational Readiness Requirements
).
|
3.4
|
Operator's General Obligations
|
(a)
|
Subject to and in accordance with the terms of this Agreement and the then applicable Work Programme and Budget, during the Lease Period the Operator shall provide the following services:
|
(i)
|
for and on behalf of the Owner, making the FLNG Facility capacity exclusively available to the Lessee;
|
(ii)
|
providing management, operation and maintenance services for the FLNG Facility;
|
(iii)
|
accepting Feed Gas that is delivered by the Lessee to the Feed Gas Receipt Point in accordance with the Operations Manual;
|
(iv)
|
in accordance with the LNG Production Plan, processing Feed Gas at the FLNG Facility to produce and store LNG;
|
(v)
|
in accordance with the Confirmed Delivery Schedule and the Operations Manual and provided that the Lessee delivers Feed Gas that meets the Feed Gas Specification, delivering LNG that meets the LNG Specification at the LNG Delivery Point; and
|
(vi)
|
providing sufficient competent and suitably qualified Personnel to ensure the proper and timely performance of the services set out in Clauses 3.4(a)(i) to 3.4(a)(v) (
Operator's General Obligations
),
|
(b)
|
If the provision of a part (or all) of the Operating Services is deficient and such deficiency is notified to the Operator by the Lessee as a Notice of Dispute in accordance with Clause 24.2(c) (
Occurrence of Disputes
) and the Operator has failed to:
|
(i)
|
develop a remedial action plan (that is acceptable to the Lessee acting reasonably) [*****] (or such other period as may be agreed by the Parties acting reasonably) from the date of the Notice of Dispute; and/or
|
(ii)
|
implement the agreed remedial action plan within [*****] (or such other period as may be agreed by the Parties acting reasonably or as may be outlined in the agreed remedial action plan) from the date of the Notice of Dispute,
|
(c)
|
The Operator shall:
|
(i)
|
obtain and maintain the Operator Permits, provided that any Operating Boundary Licences and Consents shall be obtained and maintained subject to and in accordance with Schedule 6 (
Responsibility for Compliance
); and
|
(ii)
|
upon request of the Lessee, provide reasonable assistance to the Lessee to obtain the Lessee Permits including in accordance with Schedule 6 (
Responsibility for Compliance
).
|
3.5
|
Subcontracting
|
(a)
|
Subject to this Clause 3.5 (
Subcontracting
), Clause 3.6(b) (
Local Content Obligations
) and Clause 7.1 (
Construction Parties
), the Owner and the Operator may subcontract a part (but not all) of the Work or Operating Services (as applicable) to any person pursuant to the terms of this Agreement. The Owner and the Operator shall be liable to the Lessee for the relevant acts and/or omissions of any of their respective Subcontractors in relation to the Work or Operating Services (as applicable) as fully as if they were the acts and/or omissions of the Owner or the Operator (as applicable).
|
(b)
|
The Owner or the Operator (as applicable) shall not subcontract any part of:
|
(i)
|
the Work (excluding the Conversion Contracts) in excess of a contract value of [*****] for any single subcontract or series of subcontracts for a related scope of work or services;
|
(ii)
|
the Operating Services (excluding the OSA) in excess of an annual contract value of [*****]; or
|
(iii)
|
[*****],
|
(c)
|
The Owner or the Operator (as applicable) shall conduct appropriate risk based due diligence on a proposed subcontractor including on the ability of the proposed subcontractor to perform that part of the Work or the Operating Services which the Owner or the Operator (as applicable) wishes to subcontract. Where the Lessee's written consent is required in accordance with Clause 3.5(b) (
Subcontracting
), such risk based due diligence shall be completed prior to seeking the Lessee's consent. On the first (1
st
) anniversary of the signing date of such Subcontractor's subcontract and annually thereafter for the term of such subcontract, the Owner or the Operator (as applicable) shall conduct a risk based review to ensure the Subcontractor remains suitable (technically, financially and from a compliance perspective) to perform that part of the Work or the Operating Services subcontracted to it.
|
(d)
|
If the prior written consent of the Lessee is required in accordance with Clause 3.5(b) or 3.5(g) (
Subcontracting
)
prior to entering into the relevant subcontract, then
the Owner or the Operator (as applicable) shall:
|
(i)
|
notify the Lessee of its intention to enter into any subcontract, providing details of the proposed subcontractor including trading names, nature of materials, plant, equipment and/or services to be procured, for that part of the Work or Operating Services which the Owner or the Operator (as applicable) wishes to subcontract;
|
(ii)
|
upon request by the Lessee, promptly provide the Lessee with copies of the terms and conditions of any subcontract (with any sensitive commercial information redacted);
|
(iii)
|
seek the Lessee's prior written consent (not to be unreasonably withheld, conditioned or delayed) to such subcontract prior to entering into the subcontract or making any commitment to the proposed subcontractor in respect of the proposed subcontract; and
|
(iv)
|
promptly provide the Lessee with such information in relation to the proposed subcontractor as the Lessee may reasonably require and which the Owner or Operator (as applicable) can reasonably obtain, having made reasonable efforts to obtain such information,
|
(e)
|
Subject to Clause 3.5(f) (
Subcontracting
), upon receipt of notice pursuant to Clause 3.5(d)(i) (
Subcontracting
), the Lessee may, by notice to the Owner or the Operator (as applicable), only refuse to consent to a proposed subcontractor if the Lessee has reasonable grounds to withhold such consent based on the suitability and/or capability of any proposed subcontractor to carry out the particular part of the Work or Operating Services which the Owner or Operator (as applicable) proposes to subcontract. If the Lessee refuses its consent to the proposed subcontractor, then the Owner or Operator (as applicable) may propose (at its sole cost and expense) alternative subcontractor(s) in accordance with this Clause 3.5 (
Subcontracting
) or perform that part of the Work or Operating Services itself.
|
(f)
|
If the Lessee fails to respond to a request for consent made pursuant to Clause 3.5(d)(i) (
Subcontracting
) within twenty (20) Days after the date the Owner or the Operator (as applicable) has notified the Lessee of its intention to enter into such subcontract and provided all relevant documentation referred to in Clause 3.5(d) (
Subcontracting
), then the Owner or the Operator (as applicable) shall have the right to enter into such subcontract with the subcontractor proposed pursuant to Clause 3.5(d)(i) (
Subcontracting
).
|
(g)
|
A Subcontractor to any subcontract that requires the Lessee's consent under this Clause 3.5 (
Subcontracting
) shall not be permitted to further subcontract any part of:
|
(i)
|
the Work subcontracted to it, in excess of a contract value of [*****] for any single subcontract or series of subcontracts for a related scope of work or services;
|
(ii)
|
the Operating Services subcontracted to it, in excess of an annual contract value of [*****]; or
|
(iii)
|
[*****],
|
(h)
|
Notwithstanding this Clause 3.5 (
Subcontracting
):
|
(i)
|
the Lessee's prior written consent to any subcontract, including the award to the proposed subcontractor, or the Lessee's failure to respond within the timeframe determined in accordance with Clause 3.5 (
Subcontracting
), shall not in any way relieve the Owner or the Operator of, nor in any way reduce, their respective obligations or liabilities under this Agreement;
|
(ii)
|
entry into any subcontract and/or, subject to Clause 15 (
Force Majeure
), the failure or refusal of a subcontractor of any tier (including a Key Contractor and their subcontractors of any tier) to perform its obligations under any subcontract shall not relieve the Owner or the Operator from any of its obligations under this Agreement;
|
(iii)
|
replacement of any Subcontractor shall not give rise to a Variation; and
|
(iv)
|
the Owner and Operator shall not have the right to subcontract the management and integration of any subcontracted Work or Operating Services to any person, other than an Affiliate.
|
(i)
|
Each subcontract entered into by the Owner or Operator in accordance with this Clause 3.5 (
Subcontracting
) shall, unless otherwise agreed by the Lessee, include:
|
(i)
|
provisions ensuring that the Subcontractor complies with the Localisation Plan and applicable Laws;
|
(ii)
|
provisions permitting the Lessee, the Co-venturers and the States to monitor the performance of the Work or the Operating Services (as applicable) in accordance with Clause 7.2 (
Inspection Rights
);
|
(iii)
|
provisions for the novation of such subcontract to the Lessee:
|
(A)
|
subject to the rights and obligations of the Lenders (if any) as set out in the Direct Agreements in relation to such subcontract; and
|
(B)
|
on termination of this Agreement;
|
(iv)
|
anti-bribery and corruption and human rights obligations equivalent to those set out in Clause 31 (
Business Principles
) and Clause 33 (
Human Rights
);
|
(v)
|
rights for the Lessee, the Co-venturers and the States to audit the Subcontractor's records as set out in Clause 14.7 (
Audit, Records and Financial Reporting
);
|
(vi)
|
obligations of confidentiality equivalent to those set out in Clause 26 (
Confidentiality
); and
|
(vii)
|
where the Subcontractors will have direct or indirect access to the Lessee's Confidential Information and/or IT systems (whether through email or other form of electronic communication or otherwise), digital security obligations equivalent to those set out in Clause 32 (
Digital Security
),
|
(viii)
|
ensure that the provisions set out in Clauses 3.5(i)(i) to 3.5(i)(vii) (
Subcontracting
) are enforceable in accordance with their respective terms; and
|
(ix)
|
procure that the rights and obligations identified in Clauses 3.5(i)(i) to 3.5(i)(vii) (
Subcontracting
) are included in any subcontract entered into by a Subcontractor pursuant to Clause 3.5(g) (
Subcontracting
) or (except to the extent the Owner, acting reasonably, forms the view that it is not required) Clauses 7.1(b) or 7.1(c) (
Construction Parties
).
|
(j)
|
The Owner or the Operator (as applicable) shall provide regular updates and keep the Lessee informed in relation to any subcontract in accordance with Schedule 5 (
Design, Build and Operational Readiness Requirements
).
|
3.6
|
Local Content Obligations
|
(a)
|
The Operator shall hire, retain and train, or procure the hiring, retaining and training of, all Personnel required to perform the Operating Services (the "
Crew
"), giving priority to the recruitment of qualified Mauritanian and Senegalese personnel, to the extent that the necessary expertise is locally available.
|
(b)
|
The Owner and Operator shall comply with the Localisation Plan. The Lessee shall provide such reasonable assistance to the Operator to comply with the Localisation Plan as is requested by the Operator from time to time.
|
3.7
|
Cost Competitiveness
|
(a)
|
The Operator shall, in relation to each cost to be incurred by it pursuant to the applicable Work Programme and Budget, take reasonable steps (including through the procurement of goods, works and services by way of competitive tendering procedures) as will ensure that the proposal in relation to such cost is the most competitive proposal, having regard to the technical capability and performance record of the proposed subcontractor.
|
(b)
|
Subject to Clause 3.7(a) (
Cost Competitiveness
), and except as included in an approved Work Programme and Budget, any cost which the Operator incurs to an Affiliate of the Operator shall not be reimbursable by the Lessee to the Operator to the extent that the Lessee, acting reasonably, determines that the amount of the expenditure exceeds the amount that would have been incurred if the goods, works or services in relation to which the cost was incurred had been competitively procured on an arm's length basis by a Reasonable and Prudent Operator from an entity which is not an Affiliate of the Operator.
|
(c)
|
The OSA and any other subcontracts associated with the Operator shall be deemed to satisfy the requirements of Clause 3.7(a) (
Cost Competitiveness
) only with the prior written agreement of the Lessee (such agreement not to be unreasonably withheld, conditioned or delayed) ("
Pre-Approved Subcontracts
"). Any amendments to the terms of any Pre-Approved Subcontract shall require the prior written consent of the Lessee (not to be unreasonably withheld, conditioned or delayed).
|
(d)
|
Any dispute arising in connection with this Clause 3.7 (
Cost Competitiveness
) shall be determined in accordance with Clause 24.4 (
Expert Determination
).
|
4.
|
LESSEE OBLIGATIONS
|
4.1
|
Upstream Project Obligations
|
(a)
|
During the Commissioning Period, the Lessee shall, subject to and in accordance with the terms of this Agreement:
|
(i)
|
complete the commissioning of the LNG Hub Facilities to serve as an LNG terminal to which the FLNG Facility will be moored and LNG Carriers will be separately berthed in accordance with Schedule 1 (
Basis of Design
);
|
(ii)
|
deliver Feed Gas to the Feed Gas Receipt Point; and
|
(iii)
|
use reasonable endeavours to procure the offtake of all on specification LNG made available for delivery by the Owner at the LNG Delivery Point,
|
(b)
|
During the Lease Period, the Lessee shall, subject to and in accordance with the terms of this Agreement:
|
(i)
|
operate, or procure the operation of, the LNG Hub Facilities to serve as an LNG terminal to which the FLNG Facility will be moored and LNG Carriers will be separately berthed in accordance with Schedule 1 (
Basis of Design
);
|
(ii)
|
deliver Feed Gas to the Feed Gas Receipt Point;
|
(iii)
|
procure the offtake of all on specification LNG made available for delivery by the Operator at the LNG Delivery Point in accordance with the Confirmed Delivery Schedule;
|
(iv)
|
procure any inventory management interface services required under the Operations Manual; and
|
(v)
|
conduct any contracted ancillary and logistical services,
|
(c)
|
The Lessee shall:
|
(i)
|
be responsible for obtaining and maintaining all Lessee Permits, provided that any Operating Boundary Licences and Consents shall be obtained and maintained subject to and in accordance with Schedule 6 (
Responsibility for Compliance
);
|
(ii)
|
upon request of the Owner, provide reasonable assistance to the Owner to obtain the Owner Permits including in accordance with Schedule 6 (
Responsibility for Compliance
);
|
(iii)
|
upon request of the Operator, provide reasonable assistance to the Operator to obtain the Operator Permits including in accordance with Schedule 6 (
Responsibility for Compliance
); and
|
(iv)
|
provide regular updates, including upon reasonable request of the Owner or Operator, to the Owner or Operator (as applicable) as to the progress of the Lessee interface with any Governmental Authority in both States in relation to relevant licences and consents for the GTA Project (including the Operating Boundary Licences and Consents).
|
4.2
|
GTA Project Offtake
|
4.3
|
Sub-letting the FLNG Facility
|
(a)
|
the Lessee may not sublet the FLNG Facility nor require the FLNG Facility to be located anywhere other than the territorial waters of either State without, in each case, the prior written consent of the Owner and in accordance with the following provisions of this Clause 4.3 (
Sub-letting the FLNG Facility
);
|
(b)
|
if the Lessee wishes to sublet the FLNG Facility or requires the FLNG Facility to be located anywhere other than the territorial waters of either State:
|
(i)
|
as a result, or in anticipation, of an HSSE incident;
|
(ii)
|
to comply with applicable Laws; or
|
(iii)
|
[*****],
|
(c)
|
except where one or more of the circumstances set out in Clause 4.3(b) (
Sub-letting the FLNG Facility
) applies, if the Lessee wishes to sublet the FLNG Facility or requires the FLNG Facility to be located anywhere other than the territorial waters of either State for the sole purpose of being able to exploit an opportunity, then:
|
(i)
|
the Lessee will make a proposal to the Owner for the subletting of the FLNG Facility or the relocation of the FLNG Facility and shall include in that proposal an equitable allocation of the risk and sharing of rewards; and
|
(ii)
|
subject to the rights and obligations of the Lenders (if any) as set out in the Direct Agreements, the consent of the Owner to such proposal shall not to be unreasonably withheld, conditioned, or delayed,
|
4.4
|
Emergency Events
|
4.5
|
Performance by an Affiliate
|
(a)
|
the Lessee shall remain responsible for such obligations in accordance with the terms of this Agreement; and
|
(b)
|
the Lessee shall be liable to the Owner and the Operator for the relevant acts and/or omissions of such Affiliate in relation to its performance of the Lessee's obligations under this Agreement as fully as if they were the acts and/or omissions of the Lessee.
|
5.
|
STANDARD OF RESPONSIBILITIES
|
5.1
|
Owner and Operator's Required Standard
|
(a)
|
good engineering and operating practices and relevant HSSE practices in the international maritime and oil and gas industries and relevant International Standards to the extent that this Agreement does not prescribe the relevant standard;
|
(b)
|
Schedule 1 (
Basis of Design
) and Schedule 2 (
Technical Specification
) or the applicable Work Programme and Budget (as applicable);
|
(c)
|
applicable Laws and the requirements of the relevant Classification Society;
|
(d)
|
the Performance Standards (including by repairing or reconstructing the Work in order to achieve the Performance Standards);
|
(e)
|
the requirements of Schedule 5 (
Design, Build and Operational Readiness Requirements)
applicable to the Owner or Operator (as applicable); and
|
(f)
|
an Operating Management System (including supporting systems and processes) that meets the requirements of Schedule 5 (
Design, Build and Operational Readiness Requirements
) and Schedule 8 (
HSSE Requirements
),
|
5.2
|
Lessee's Required Standard
|
(a)
|
good engineering and operating practices and relevant HSSE practices in the international maritime and oil and gas industries and relevant International Standards to the extent that this Agreement does not prescribe the relevant standard;
|
(b)
|
applicable Laws; and
|
(c)
|
the requirements of Schedule 5 (
Design, Build and Operational Readiness Requirements)
applicable to the Lessee,
|
6.
|
VARIATIONS
|
6.1
|
Lessee Request
|
(a)
|
At any time after the Effective Date, the Lessee may provide to the Owner a request in writing, in the form set out in Schedule 11 (
Lessee Variation Request
), requesting the Owner to make a Variation to the Work or to the FLNG Facility ("
Lessee Request
").
|
(b)
|
Each Lessee Request shall be sequentially numbered by the Lessee in accordance with the order in which such Lessee Request is issued.
|
(c)
|
The Owner shall acknowledge receipt of the Lessee Request within seven (7) Days after receipt of the Lessee Request.
|
6.2
|
Owner Request
|
(a)
|
the capital costs of, or the schedule for, performing the Work;
|
(b)
|
the Owner's ability to complete the Work or the Operator's ability to provide the Operating Services;
|
(c)
|
the FLNG Facility's ability to pass the Acceptance Tests or Acceptance Appraisals;
|
(d)
|
the Owner's or the Operator's ability to satisfy the Performance Standards; or
|
(e)
|
the safe operation of the FLNG Facility,
|
6.3
|
Response to Lessee Request
|
(a)
|
Subject to Clauses 6.3(b), 6.3(c) and 6.3(d) (
Response to Lessee Request
),
if the Owner receives a Lessee Request then the Owner shall submit to the Lessee a Variation Order Proposal in accordance with Clause 6.5 (
Variation Order Proposal
) within thirty (30) Days (or such other period as the Parties may agree acting reasonably) after receipt of the Lessee Request.
|
(b)
|
If the Owner receives a Lessee Request and the Owner determines, acting reasonably, that preparing a Variation Order Proposal will require the Owner to incur costs of more than [*****], then:
|
(i)
|
the Owner shall so notify the Lessee before commencing work on preparing a Variation Order Proposal (and in any event within seven (7) Days of acknowledgement of the Lessee Request pursuant to Clause 6.1(c) (
Lessee Request
));
|
(ii)
|
within seven (7) days of the Owner's notification pursuant to Clause 6.3(b)(i) (
Response to Lessee Request
), the Lessee shall notify the Owner to confirm whether the Lessee requires the Owner to prepare the Variation Order Proposal; and
|
(iii)
|
subject to the Lessee's confirmation being provided pursuant to Clause 6.3(b)(ii) (
Response to Lessee Request
), the Owner shall commence work to prepare the Variation Order Proposal.
|
(c)
|
The Owner may give notice to the Lessee at any time rejecting a Lessee Request (including a reasonably detailed written statement of the reasons for such rejection) if implementing the Variation requested by the Lessee Request would:
|
(i)
|
jeopardise the technical, structural or operational integrity of the FLNG Facility; or
|
(ii)
|
result in the FLNG Facility ceasing to comply with:
|
(A)
|
the requirements of the relevant Classification Society;
|
(B)
|
any applicable Mauritanian or Senegalese Law;
|
(C)
|
any applicable laws of the Flag State; or
|
(D)
|
any other applicable Laws,
|
(d)
|
If the Owner gives notice to the Lessee pursuant to Clause 6.3(c) (
Response to Lessee Request
), then duly authorised representatives of the Owner and the Lessee will meet and discuss in good faith the Owner's rejection of the Lessee Request and any potential alternatives to the rejected Lessee Request.
|
6.4
|
Response to Owner Request
|
(a)
|
Without limiting the Lessee's right to dispute a Variation Order Proposal (including in relation to an Owner Request) in accordance with Clause 6.7(d) (
Variation Order
), the Lessee shall not withhold its consent to any Owner Request that relates to an event described in sub-paragraphs (a) to (c) (inclusive) or (h) to (m) (inclusive) of the definition of "Change" and shall proceed to issue a Variation Order in accordance with Clause 6.7 (
Variation Order
) with respect to a Variation Order Proposal that relates to an Owner Request.
|
(b)
|
If the Owner Request relates to an event described in sub-paragraphs (d), (e), (f) or (g) of the definition of "Change", then the Lessee may decide (in its sole discretion) whether or not to proceed with the Variation. If the Lessee decides:
|
(i)
|
to proceed with the Variation, then Clause 6.7(a) (
Variation Order
) shall apply; or
|
(ii)
|
not to proceed with the Variation, then the Owner or the Operator (as applicable) shall not be:
|
(A)
|
in breach of the Performance Standards;
|
(B)
|
required to satisfy any relevant provision or requirement of the Acceptance Tests or Acceptance Appraisals;
|
(C)
|
subject to any Dayrate adjustment under this Agreement;
|
(D)
|
required to perform any obligation under this Agreement that would cause it to breach applicable Law; or
|
(E)
|
otherwise in breach of this Agreement,
|
6.5
|
Variation Order Proposal
|
6.6
|
Variation Cost
|
(a)
|
Unless the Owner and the Lessee otherwise agree, the costs and impacts of implementing any Variation Order Proposal (the "
Variation Cost
") shall be proposed by the Owner in accordance with the principles set out in Schedule 12 (
Variation Order Proposal
) and Clauses 6.6(e), 6.6(f), 6.6(g) and 6.6(h) (
Variation Cost
).
|
(b)
|
Unless the Owner and the Lessee agree to incorporate the Variation Cost into the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable) in accordance with Clause 6.6(c) (
Variation Cost
), the Lessee shall pay the Variation Cost to the Owner in accordance with the schedule for payment set out in the Variation Order Proposal.
|
(c)
|
Subject to Clause 6.6(d) (
Variation Cost
), the Owner and the Lessee may agree to incorporate the Variation Cost in the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable), in which case the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable) shall be increased or decreased by the amount, expressed in USD per Day, calculated in accordance with the following formula to determine the applicable Adjusted Nominal Set Rate:
|
(d)
|
Unless the Owner and the Lessee otherwise agree, the Variation Cost may only be incorporated into the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable):
|
(i)
|
in relation to up to [*****] in each calendar year;
|
(ii)
|
up to a maximum amount of [*****] in each calendar year; and
|
(iii)
|
up to a maximum aggregate amount for all Variations of [*****] during the Term.
|
(e)
|
Subject to Clauses 6.6(f), 6.6(g) and 6.6(h) (
Variation Cost
), any Variation Costs resulting from a Variation shall be for the account of the Lessee.
|
(f)
|
Subject to Clause 6.6(g) (
Variation Cost
), any Variation Costs resulting from a Variation that is:
|
(i)
|
necessary to give effect to any change required by a change in requirements of International Standards, international maritime regulations or international LNG regulations (even if such change is reflected in Mauritanian and Senegalese Laws), to the extent that the change in such standards or regulations imposes:
|
(A)
|
a higher standard than that prescribed under this Agreement; or
|
(B)
|
a new standard not otherwise prescribed under this Agreement;
|
(ii)
|
necessary to give effect to any requirements of any relevant Classification Society (even if such change is reflected in Mauritanian and Senegalese Laws);
|
(iii)
|
subject to Clause 6.6(f)(i) (
Variation Cost
), required as a result of a change to applicable Mauritanian or Senegalese Laws that had been announced by any Governmental Authority on or prior to 17 December 2018;
|
(iv)
|
[*****]:
|
(A)
|
compliance with Schedule 1 (
Basis of Design
) and/or Schedule 2 (
Technical Specification
); or
|
(B)
|
the achievement of the Performance Standards;
|
(v)
|
required as a result of the verification of the design and build pursuant to Schedule 5 (
Design, Build and Operational Readiness Requirements
) following which the Lessee and the Owner, acting reasonably, agree that the Work should be modified in order to ensure:
|
(A)
|
compliance with Schedule 1 (
Basis of Design
) and/or Schedule 2 (
Technical Specification
); or
|
(B)
|
the achievement of the Performance Standards;
|
(vi)
|
required to rectify any defects in the Work or defects in the Operating Services or necessary as a result of the Performance Standards not being achieved other than as a result of an FM Event, Upstream Failure, LNG Buyer Failure, or Suspension for Convenience;
|
(vii)
|
required pursuant to Clause 7.13(f) (
Acceptance Testing
);
|
(viii)
|
required pursuant to Clauses 8.2(e) or 8.2(f) (
Continuation Date
);
|
(ix)
|
required as a result of a change in the Operating Management System; and/or
|
(x)
|
required as a result of the Parties agreeing (acting reasonably) that an assumption contained in Schedule 1 (
Basis of Design
) and/or Schedule 2 (
Technical Specification
), other than an assumption that was provided by, or is in the control of, the Lessee, is incorrect,
|
(g)
|
Any Variation Costs resulting from a Variation that is:
|
(i)
|
required to achieve compliance with any Law of the States and/or the requirements of the World Bank Group Environmental, Health, and Safety Guidelines not known to the Lessee or the Owner on or prior to 17 December 2018 but which, had it been known by the Parties on or prior to that date, would have been reflected in Schedule 1 (
Basis of Design
) and/or Schedule 2 (
Technical Specification
); and/or
|
(ii)
|
required as a result of a Project Compliance Assumption being incorrect and/or having to be subsequently revised (including through a failure to secure necessary derogations),
|
(A)
|
[*****]; or
|
(B)
|
[*****],
|
(1)
|
the possibility of agreeing to revise the thresholds set out in Clauses 6.6(g)(ii)(A) and/or 6.6(g)(ii)(B) (
Variation Cost
);
|
(2)
|
the possibility of the Variation Order Proposal being revised or a Party requesting a new Variation in accordance with this Agreement; and/or
|
(3)
|
the terms of the Preliminary Agreement and/or the notices exchanged on 19 April 2018 between the Lessee, BPSIL and GLNG pursuant to the Preliminary Agreement, including the heads of terms for this Agreement attached thereto.
|
(h)
|
If:
|
(i)
|
the actual cost of performing a Variation is in excess of what the Parties agreed the impact of the Variation would be pursuant to this Clause 6 (
Variations
), such excess cost shall be borne by the Owner; or
|
(ii)
|
the actual cost of performing the Variation is lower than what the Parties agreed the impact would be pursuant to this Clause 6 (
Variations
), any savings arising from such lower cost shall accrue to the Owner.
|
(i)
|
The provisions of this Clause 6 (
Variations
) shall in no way prejudice the Owner's and Operator's other obligations under this Agreement including their obligations to meet the Target Connection Date and the LNG Delivery Performance Standard (in each case as amended by any Variation).
|
6.7
|
Variation Order
|
(a)
|
If:
|
(i)
|
in response to a Lessee Request, or an Owner Request to which Clause 6.4(b) (
Response to Owner Request
) applies, the Owner issues a Variation Order Proposal that complies with Clause 6.5 (
Variation Order Proposal
), then the Lessee shall decide [*****] whether or not to proceed with the Variation based on the Variation Order Proposal in accordance with this Clause 6.7 (
Variation Order
) and shall notify the Owner of the same within fifteen (15) Days (or such other period as the Parties may agree, acting reasonably) after receipt of such Variation Order Proposal; or
|
(ii)
|
there is an Owner Request that complies with Clause 6.5 (
Variation Order Proposal
) and to which Clause 6.4(b) (
Response to Owner Request
) does not apply then the Lessee shall notify the Owner of such compliance within fifteen (15) Days (or such other period as the Parties may agree, acting reasonably) after receipt of such Variation Order Proposal and issue a Variation Order in accordance with Clause 6.7(b) (
Variation Order
) (but subject always to the Lessee's right to dispute a Variation Order Proposal in accordance with the provisions of Clause 6.7(d) (
Variation Order
)).
|
(b)
|
If the Lessee decides, or is required in accordance with Clause 6.4(a) (
Response to Owner Request
), to proceed with a Variation, then:
|
(i)
|
the Lessee shall issue to the Owner two (2) copies of a draft variation order:
|
(A)
|
in the form set out in Schedule 13 (
Variation Order
); and
|
(B)
|
confirming the impacts for the Owner, the Operator and the Lessee, as set out in the Variation Order Proposal, including:
|
(1)
|
the proposed changes (if any) to the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable);
|
(2)
|
the proposed changes (if any) to the Base Work Programme and Budget Cycle; and
|
(3)
|
the proposed changes (if any) to the Performance Standards that will apply during the implementation of the Variation and upon the completion of the Variation; and
|
(C)
|
where a Variation is to be executed prior to the Anticipated Commercial Operations Date, acknowledging and agreeing to the proposed impact (if any) of the Variation on the Project Schedule, including any of the Critical Dates, which shall be as set out in the Variation Order Proposal; and
|
(ii)
|
within ten (10) Days (or such other period as the Parties may agree acting reasonably) after receipt of two (2) copies of a draft variation order:
|
(A)
|
the Owner shall promptly:
|
(1)
|
sign (and procure that the Operator signs) and return one (1) copy of such draft variation order to the Lessee (such signed order, a "
Variation Order
"); and
|
(2)
|
initiate and perform the works set out in the Variation Order in accordance with this Agreement and the schedule set out in the Variation Order; and
|
(B)
|
the Parties shall comply with the terms of the Variation Order, including:
|
(1)
|
the changes (if any) to the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable);
|
(2)
|
the proposed changes (if any) to the Base Work Programme and Budget Cycle;
|
(3)
|
the Performance Standards that will apply during the implementation of the Variation (in accordance with the schedule set out in the Variation Order) and upon the completion of the Variation; and
|
(4)
|
any consequential adjustment required to the Project Schedule (including any of the Critical Dates).
|
(c)
|
If the Variation Order Proposal is not with respect to a Variation that the Lessee is required to approve in accordance with Clause 6.4(a) (
Response to Owner Request
) and the Lessee rejects the Variation Order Proposal, then:
|
(i)
|
the Variation will not be implemented; and
|
(ii)
|
where the costs of the Variation, if implemented, would have been for the account of the Lessee, the Lessee shall promptly reimburse the Owner for its reasonable and documented costs incurred in connection with the preparation of the Variation Order Proposal in accordance with Clause 14 (
Invoicing
) subject to:
|
(A)
|
at any time prior to the aggregate of such costs incurred but not reimbursed (or not to be reimbursed) in relation to the aggregate of all such rejected Variation Order Proposals prepared in a calendar year being [*****], the amount to be reimbursed to the Owner shall be the amount of such reasonable and documented costs incurred by the Owner [*****] for each such rejected Variation Order Proposal in that calendar year; and
|
(B)
|
if at any time in a calendar year the aggregate of such costs incurred but not reimbursed (or not to be reimbursed) in relation to the aggregate of all such rejected Variation Order Proposals prepared in that calendar year is [*****], the Lessee shall reimburse the full amount of such reasonable and documented costs incurred by the Owner in connection with preparing any subsequent rejected Variation Order Proposal (where the costs of the Variation, if implemented, would have been for the account of the Lessee) and Clause 6.7(c)(ii)(A) (
Variation Order
) shall no longer apply for that calendar year.
|
(d)
|
If the Lessee disputes any of the terms of a Variation Order Proposal issued under Clauses 6.4(a) or 6.4(b) (
Response to Owner Request
) (including whether the requirements of Clause 3.5 (
Subcontracting
) have been met), then:
|
(i)
|
duly authorised representatives of the Owner and the Lessee will meet and discuss alternatives to, and/or changes to be made to, the terms of the Variation Order Proposal in accordance with Clause 24.2 (
Occurrence of Disputes
); and
|
(ii)
|
notwithstanding that the dispute may not have been resolved pursuant to Clause 24.2 (
Occurrence of Disputes
), the Owner shall, if so requested in writing by the Lessee, implement or procure the implementation of the Variation and proceed diligently with performance thereof and:
|
(A)
|
in respect of Variation Costs, the Lessee shall pay [*****], in each case in accordance with the payment schedule set out in the Variation Order Proposal;
|
(B)
|
in relation to any dispute regarding the deferral of any Critical Date, the mid-point of the difference between the Owner's position as set out in the Variation Order Proposal and the Lessee's position with respect to such disputed impact shall apply; and
|
(C)
|
in respect of all other disputed impacts, the mid-point of the difference between the Owner's position as set out in the Variation Order Proposal and the Lessee's position with respect to such disputed impact shall apply,
|
(e)
|
The Parties shall consolidate all agreed Variations into a restated version of this Agreement:
|
(i)
|
as soon as reasonably practicable after the Sailaway Date (and in any event before the Commissioning Start Date); and
|
(ii)
|
thereafter as agreed between the Parties (acting reasonably).
|
7.
|
FLNG PROJECT DEVELOPMENT
|
7.1
|
Construction Parties
|
(a)
|
The Owner shall enter into, or procure the entry into, the following engineering, procurement, construction, installation and commissioning contracts and associated management contracts (each, a "
Conversion
Contract
"):
|
(i)
|
an engineering, procurement and construction contract between the Owner and Keppel Shipyard for the repair, modification and conversion of the Golar Gimi into the FLNG Facility (the "
MBC
");
|
(ii)
|
an agreement for topsides design, engineering, procurement and commissioning works between Keppel Shipyard and Black & Veatch (the "
SBC
");
|
(iii)
|
a tripartite direct agreement between the Owner, Keppel Shipyard and Black & Veatch which regulates the relationship between the MBC, the SBC and the parties to those contracts; and
|
(iv)
|
a project management services agreement between the Owner and Golar Management Limited for the provision of project management services in relation to the Work (the "
PMSA
").
|
(b)
|
Subject to the provisions of Clauses 7.1(c), 7.1(d) and 7.1(h) (
Construction Parties
), each Key Contractor under the MBC, the SBC and the PMSA shall have the right to subcontract a part (but not all or substantially all) of its scope of work under its respective Conversion Contract.
|
(c)
|
The Parties have agreed that the list of approved entities to which the Key Contractors may, subject to Clause 7.1(b) (
Construction Parties
), subcontract a part of their scope of work under the Conversion Contracts, is included in Schedule 27 (
Approved Vendor List
) ("
Approved Vendor List
"). Any changes to the Approved Vendor List shall require consent of the Lessee (not to be unreasonably withheld, conditioned or delayed). If a Key Contractor wishes to engage a subcontractor that is not an entity listed in the Approved Vendor List, then the prior written consent of the Lessee shall be required in accordance with Clause 7.1(d) (
Construction Parties
).
|
(d)
|
If a Key Contractor wishes to subcontract a part of its scope of work under the Conversion Contracts that is Safety Critical to a person who is not on the Approved Vendor List, the Owner shall notify the Lessee prior to the Key Contractor entering into the subcontract or making any commitment to the proposed subcontractor in respect of the proposed subcontract. The Lessee shall have the right to reject the proposed subcontractor if the Lessee has reasonable concerns regarding the suitability of the proposed subcontractor (technically, financially and from a compliance perspective) to carry out the work that the Key Contractor proposes to subcontract, provided that the Lessee notifies the Owner of its rejection of such subcontractor within ten (10) Days of the notice received from the Owner under this Clause 7.1(d) (
Construction Parties
).
|
(e)
|
For the avoidance of doubt:
|
(i)
|
entry into a Conversion Contract and/or the failure or refusal of a Key Contractor to perform or deliver any portion of the Work pursuant to any Conversion Contract shall not relieve the Owner from any of its obligations under this Agreement; and
|
(ii)
|
replacement of any Key Contractor for any reason shall not give rise to a Variation.
|
(f)
|
On the first (1
st
) anniversary of the signing date of each Conversion Contract and annually thereafter for the term of such Conversion Contract, the Owner shall undertake a risk-based review to ensure the Key Contractors remain suitable (technically, financially and from a compliance perspective) to perform the relevant Core Work contracted to them.
|
(g)
|
The Owner shall procure that the Conversion Contracts contain obligations on the Key Contractors to meet the Owner and the Lessee and discuss in good faith the development of any remedial action plan required in the circumstances set out in Clause 23.7(c) (
Key Contractor Insolvency Cure Periods
).
|
(h)
|
The Owner shall include those rights and obligations identified in Clause 3.5(i) (
Subcontracting
) in each Conversion Contract and shall procure that such rights and obligations are included in any subcontract entered into by a Key Contractor pursuant to Clause 7.1(b) (
Construction Parties
).
|
(i)
|
The Owner shall provide regular updates to the Lessee and keep the Lessee informed in relation to the Conversion Contracts in accordance with Schedule 5 (
Design, Build and Operational Readiness Requirements
).
|
7.2
|
Inspection Rights
|
(a)
|
Except as provided for in the Acceptance Test Protocol, Acceptance Appraisal Protocol, Clause 4.4 (
Emergency Events
), this Clause 7.2 (
Inspection Rights
), Clause 7.3 (
Reporting, Verification, Control and Assurance Procedures
), Clause 7.7 (
Sailaway and Arrival Dates
), Clause 19.5(b) (
Pollution and Emergency Response
), Clause 23.9(a)(i) (
Bare Boat Charter
), Schedule 6 (
Responsibility for Compliance
) and Schedule 8 (
HSSE Requirements
), nothing in this Agreement confers any right of physical or direct access to, or control over, the FLNG Facility in favour of the Lessee, the Co-venturers and the States.
|
(b)
|
Duly authorised representatives of the Lessee, the Co-venturers and the States (at their own cost and risk and subject to Clause 17 (
Liability and Indemnity
)) shall have the right to inspect the Work and observe any tests undertaken pursuant to a Conversion Contract upon reasonable advance notice, provided that the relevant representatives of the Lessee, the Co-venturers and the States have completed (at the Lessee's cost) all HSSE training reasonably required by the Owner, the Key Contractors or their subcontractors in connection with such inspection.
|
(c)
|
Duly authorised representatives of the Lessee, the Co-venturers, the States and the LNG Buyers shall have the right to inspect the FLNG Facility and the performance of the Operating Services (at their own cost and risk (subject to the terms of Clause 17 (
Liability and Indemnity
)), provided that:
|
(i)
|
such inspection is carried out during the hours and on days reasonably required by the Operator or Owner (as applicable) having due consideration to the timing of the Lessee's request;
|
(ii)
|
the duly authorised representatives of the Lessee, the Co-venturers, the States and the LNG Buyers have completed (at the Lessee's cost) all HSSE training reasonably required by the Owner or Operator in connection with such inspection; and
|
(iii)
|
the Lessee has provided reasonable notice to the Owner and Operator of its intention to carry out any inspection of the FLNG Facility or Operating Services.
|
(d)
|
If any of the duly authorised representatives of the Lessee, the Co-venturers, the States or the LNG Buyers have completed substantially similar HSSE training to that required by the Owner, the Operator, the Key Contractors or their subcontractors and provide evidence of the same, such representatives shall be deemed to have completed the required training under Clauses 7.2(b) and 7.2(c)(ii) (
Inspection Rights
).
|
7.3
|
Reporting, Verification, Control and Assurance Procedures
|
(a)
|
Without prejudice to the generality of Clause 7.2 (
Inspection Rights
), the Owner and the Operator shall use all reasonable endeavours to provide, or procure the provision of, the information to the Lessee and its duly authorised representatives, and permit, or procure that its Subcontractors permit, the Lessee and its duly authorised representatives to exercise its access and inspection rights, all as provided for in Schedule 5 (
Design, Build and Operational Readiness Requirements
) to the Lessee and its duly authorised representatives to enable the Lessee to:
|
(i)
|
evaluate the progress of the Core Work (and any Additional Capital Work if applicable) against the Project Schedule; and
|
(ii)
|
respond to queries from LNG Buyers and/or potential LNG buyers and their representatives.
|
(b)
|
The Owner and the Operator may acting reasonably request information from the Lessee in respect of the Upstream Facilities to the extent such information assists the Owner or the Operator to:
|
(i)
|
engineer, design, develop, construct, commission or operate any connection or interface point between the FLNG Facility and the Upstream Facilities; or
|
(ii)
|
secure financing for the FLNG Facility,
|
(c)
|
Any obligation to provide, or procure the provision of, information and/or to permit a Party to exercise its access and/or inspection rights in accordance with Clause 7.2 (
Inspection Rights
) or this Clause 7.3 (
Reporting, Verification, Control and Assurance Procedures
) shall be subject to any contractual limitations, including confidentiality restrictions, to which the Party that is being asked to provide such information, or permit such exercise of access or inspection rights (or its Affiliates), is subject.
|
(d)
|
Any information, access and/or inspection rights required to be provided pursuant to this Clause 7.3 (
Reporting, Verification, Control and Assurance Procedures
) shall be provided in a timely manner.
|
7.4
|
Hold-points
|
(a)
|
The Owner shall not progress beyond a Hold-point other than in accordance with Clause 7.4(e)(i) or 7.4(e)(ii) (
Hold-points
).
|
(b)
|
No later than thirty (30) Days prior to the date the Owner expects to give a notice pursuant to Clause 7.4(c)(ii) (
Hold-points
) the Owner shall notify the Lessee as to the progress made in relation to the relevant Hold-point; and
|
(i)
|
the Lessee shall (no later than ten (10) Days after receiving such notice pursuant to this Clause 7.4(b) (
Hold-points
)) notify the Owner of its current best estimate of the evidence it will reasonably require in order to determine whether the relevant Hold-point has or will be achieved; and
|
(ii)
|
the Owner and the Lessee shall (no later than five (5) Days after the Owner receives such notice pursuant to Clause 7.4(b)(i) (
Hold-points
)) nominate a Hold-point Expert to serve as an Independent Expert in the event of a dispute pursuant to Clause 7.4(e) (
Hold-points
).
|
(c)
|
If the Owner considers that a Hold-point has been achieved or will be achieved within thirty (30) Days, then the Owner shall:
|
(i)
|
complete and deliver to the Lessee the checklist for the applicable Hold-point as set out in Schedule 5 (
Design, Build and Operational Readiness Requirements
); and
|
(ii)
|
notify the Lessee of the results of its readiness review confirming that the relevant Hold-point has been achieved or will be achieved within thirty (30) Days,
|
(d)
|
The Lessee shall, acting reasonably, review any Hold-point Confirmation proposed by the Owner pursuant to Clause 7.4(c) (
Hold-points
):
|
(i)
|
without undue delay; and
|
(ii)
|
by reference to the criteria set out in Schedule 5 (
Design, Build and Operational Readiness Requirements
) or any other checklist agreed in writing between the Owner and the Lessee.
|
(e)
|
The Lessee shall, within ten (10) Days of receiving a Hold-point Confirmation pursuant to Clause 7.4(c) (
Hold-points
), either:
|
(i)
|
confirm to the Owner that the relevant Hold-point has been achieved, in which case the Owner shall progress beyond the relevant Hold-point; or
|
(ii)
|
notify the Owner of the reasonable grounds (determined by reference to the criteria set out in Schedule 5 (
Design, Build and Operational Readiness Requirements
) or any other checklist agreed in writing between the Owner and the Lessee and including failure to provide the evidence notified under Clause 7.4(b)(i) (
Hold-points
)) on which the Lessee rejects the Hold-point Confirmation (acting reasonably), in which case:
|
(A)
|
the Owner shall not progress beyond the relevant Hold-point;
|
(B)
|
the Owner and the Lessee shall, jointly, promptly (and, in any event, within fifteen (15) Days) appoint and instruct the nominated Hold-point Expert chosen pursuant to Clause 7.4(b)(ii) (
Hold-points
) to be the Independent Expert to determine whether the Hold-point has been achieved, and all fees and expenses incurred by such Hold-point Expert shall be borne by the Owner and the Lessee in equal shares, and each of the Owner and the Lessee shall bear its own costs of participating in the expert determination process (including the costs of its own advisors or consultants); and notwithstanding the time periods in Clause 24.4 (
Expert Determination
), the Owner and the Lessee shall use all reasonable endeavours to expedite the expert determination process under this Clause 7.4(e)(ii) (
Hold-points
);
|
(C)
|
if the Hold-point Expert appointed pursuant to Clause 7.4(e)(ii)(B) (
Hold-points
) determines that the Hold-point Confirmation was:
|
(1)
|
correctly rejected by the Lessee, then:
|
(aa)
|
the Owner shall not progress beyond the relevant Hold-point;
|
(bb)
|
the Owner shall take such steps as it considers necessary to achieve the Hold-point; and
|
(cc)
|
the Owner and the Lessee shall follow the process set out in this Clause 7.4 (
Hold-points
);
|
(2)
|
subject to Clause 7.4(e)(ii)(C)(3) (
Hold-points
), wrongly rejected by the Lessee, then the Owner shall progress beyond the relevant Hold-point;
|
(3)
|
wrongly rejected by the Lessee but, within ten (10) Days of the Hold-point Expert's determination, the Lessee gives notice to the Owner that in the Lessee's reasonable opinion the Owner should not progress beyond the relevant Hold-point [*****], then:
|
(aa)
|
the provisions in Clause 7.4(e)(ii)(D) (
Hold-points
) shall apply until the relevant Hold-point is achieved;
|
(bb)
|
the Lessee shall promptly inform the Owner of the reasonable steps required to address the Lessee's reasonable concerns identified in Clause 7.4(e)(ii)(C) (
Hold-points
), and such notice shall be deemed to be a Lessee Request and the provisions of Clause 6 (
Variations
) shall subsequently be followed; and
|
(cc)
|
the Owner shall as soon as reasonably practicable following the signing of the Variation Order pursuant to Clause 6.7 (
Variation Order
), implement such Variation, and following the implementation of such Variation, the Lessee shall confirm to the Owner that the relevant Hold-point has been achieved, in which case the Owner shall progress beyond the relevant Hold-point; and
|
(D)
|
in respect of each Hold-point, if the Hold-point Expert determines that the Hold-point Confirmation was wrongly rejected by the Lessee, then such period of delay shall be considered to be a delay caused by, or attributable to, the Lessee Group for the purposes of determining whether:
|
(1)
|
the Owner is liable to pay Daily LDs under Clauses 7.11 (
Ready for Connection and Commissioning Start Dates
) and/or 7.13 (
Acceptance Testing
); and
|
(2)
|
the Lessee is liable to pay Standby Dayrate under Clause 7.11 (
Ready for Connection and Commissioning Start Dates
) and/or any amount due under Clauses 7.12(f)(iii) and 7.12(f)(iv) (
Commissioning Period
).
|
(f)
|
Confirmation by the Lessee that a Hold-point has been achieved shall not be deemed to constitute acceptance by the Lessee that all or part of the Work has been completed to the satisfaction of the Lessee, and shall not prejudice any other rights of the Lessee in respect of the performance or non-performance of the Owner's obligations under this Agreement.
|
7.5
|
Review-points
|
(a)
|
No later than thirty (30) Days prior to the date the Owner expects to start a process of reviewing a Review-point with the Lessee (the "
Review-point Process
"), the Owner shall notify the Lessee of the results of its readiness review confirming that the relevant Review-point is ready to be reviewed by the Lessee, and:
|
(i)
|
the Lessee shall (no later than ten (10) Days after receiving such notice pursuant to this Clause 7.5(a) (
Review-points
)) notify the Owner of its current best estimate of the information it will reasonably require in order to conduct its review of the relevant Review-point;
|
(ii)
|
the Owner shall provide all information reasonably required by the Lessee to conduct the review of the relevant Review-point; and
|
(iii)
|
the Owner and the Lessee shall agree, acting reasonably, when, and where, the Review-point Process shall commence.
|
(b)
|
The Owner and the Lessee shall conduct the Review-point Process in accordance with their agreement pursuant to Clause 7.5(a)(iii) (
Review-points
) and Schedule 5 (
Design, Build and Operational Readiness Requirements
).
|
(c)
|
The Lessee shall, as soon as reasonably practicable after the commencement of a Review-point Process, either:
|
(i)
|
confirm to the Owner that the relevant Review-point Process is concluded; or
|
(ii)
|
notify the Owner of any reasonable reservations which the Lessee requires to be addressed for the Review-point Process to be concluded (acting reasonably), in which case:
|
(A)
|
if:
|
(1)
|
the Owner agrees with the Lessee's reasonable reservations pursuant to Clause 7.5(c)(ii) (
Review-points
), or it is determined under Clause 7.5(c)(ii)(A)(2) (
Review-points
) that such reservations are reasonable, then duly authorised representatives of the Owner and the Lessee shall promptly (and, in any event, within fifteen (15) Days), meet and discuss the actions required to adequately address the relevant reservations following which the Owner shall take such actions as are agreed to adequately address the reservations, and provide information as reasonably requested by the Lessee in relation to the taking of such actions; or
|
(2)
|
the Owner disagrees with the Lessee's reasonable reservations pursuant to Clause 7.5(c)(ii) (
Review-points
), then the Owner may refer the matter for resolution in accordance with Clause 24 (
Dispute Resolution
); and
|
(B)
|
if the Lessee and the Owner fail to agree the actions required to adequately address the reservations agreed or determined to be reasonable under Clause 7.5(c)(ii)(A)(1) (
Review-points
), then the Lessee may refer the matter for resolution in accordance with Clause 24 (
Dispute Resolution
); and
|
(C)
|
following a resolution by the Independent Expert of the matter referred to in Clause 7.5(c)(ii)(B) (
Review-points
), if the Owner fails to implement the actions the subject of the Independent Expert's determination within a reasonable time frame (having regard to the nature of the actions), the Lessee shall be entitled to terminate this Agreement pursuant to Clause 23.2 (
Termination by the Lessee
).
|
(d)
|
Confirmation by the Lessee that a Review-point Process has completed or that the actions under Clause 7.5(c)(ii)(A)(1) (
Review-points
) have been taken shall not be deemed to constitute acceptance by the Lessee that all or part of the Work has been completed to the satisfaction of the Lessee, and shall not prejudice any other rights of the Lessee in respect of the performance or non-performance of the Owner's obligations under this Agreement.
|
7.6
|
Manuals and Protocols
|
(a)
|
The Owner, the Operator and the Lessee shall jointly develop the manuals and procedures in accordance with this Clause 7.6 (
Manuals and Protocols
) (the "
Manuals and Protocols
"). If the Owner, the Operator or the Lessee reasonably requires any content in the Manuals and Protocols to be determined at an earlier date than as provided in this Clause 7.6 (
Manuals and Protocols
), then the Parties shall use reasonable endeavours to agree such content ahead of the date so provided.
|
(b)
|
The Owner shall deliver to the Operator and the Lessee, by no later than twelve (12) months prior to the Target Connection Date:
|
(i)
|
a draft interface protocol that sets out the rights and responsibilities of the Owner, the Operator and the Lessee with respect to key GTA Project interfaces, including installation of the FLNG Facility (the "
Interface Protocol
");
|
(ii)
|
a draft commissioning protocol that sets out:
|
(A)
|
the rights and responsibilities of the Owner and the Lessee with respect to commissioning of the FLNG Facility;
|
(B)
|
flaring limits for Feed Gas volumes to apply during the Commissioning Period; and
|
(C)
|
requirements for delivery and receipt of Feed Gas in such volumes and pressure, and at such times, so as to permit commissioning and acceptance testing, and recognising the increased probability of temporary Off-Specification Feed Gas and temporary Off-Specification LNG during the Commissioning Period,
|
(iii)
|
a draft inspection and testing protocol that sets out the procedures regarding the acceptance testing of the FLNG Facility to verify that the FLNG Facility is capable of achieving the Availability and Capacity Performance Standards, which shall include, in reasonable detail, requirements for the attendance of witnesses and technical and operational parameters relevant to such testing, based upon the relevant part of Schedule 3 (
Acceptance Tests and Acceptance Appraisals
) (when finalised in accordance with this Clause 7.6 (
Manuals and Protocols
), the "
Acceptance Test Protocol
"); and
|
(iv)
|
a draft inspection and testing protocol that sets out the procedures regarding the acceptance testing of the FLNG Facility to verify that the FLNG Facility is capable of achieving the Performance Standards, which shall include, in reasonable detail, requirements for the attendance of witnesses and technical and operational parameters relevant to such testing, based upon the relevant part of Schedule 3 (
Acceptance Tests and Acceptance Appraisals
) (when finalised in accordance with this Clause 7.6 (
Manuals and Protocols
), the "
Acceptance Appraisal Protocol
").
|
(c)
|
The Lessee shall deliver to the Owner and the Operator, by no later than twelve (12) months:
|
(i)
|
after the Effective Date, draft accounting and procurement protocols to be used for invoice preparation and financial reporting as well as the processes to be applied when procuring goods, materials and services from Third Parties after the Commissioning Start Date (the "
Accounting Protocol
");
|
(ii)
|
prior to the Target Connection Date:
|
(A)
|
draft protocols that for each initiating event identified by major accident risk and quantitative risk assessment studies undertaken in connection with the LNG Hub Facilities, describe the event, potential consequences and escalation, control/mitigation and required responses; and
|
(B)
|
those components of the draft commissioning protocol contemplated by Clause 7.6(b)(ii) (
Manuals and Protocols
) that relate to the pre-commissioning and commissioning of the Upstream Facilities.
|
(d)
|
The Lessee shall deliver to the Owner and Operator, by no later than twenty-four (24) months prior to the Target Connection Date, the marine operations manual that sets out the interfaces, roles and responsibilities for LNG Carriers arriving at the LNG Hub Facilities for conducting approach, berthing, loading and departure operations in accordance with recognised practices in the LNG industry applying to LNG loading and transportation from LNG terminals (including the standard of incoming LNG Carriers, LNG Carrier nominations, notice of readiness, berthing assignment, loading time, purging and cool down operations, gas on-board the LNG Carrier, LNG Carrier not ready for loading and excess berth time), including the calculation of Allowed Laytime for respective LNG Carriers which shall be determined by taking into consideration:
|
(i)
|
the relevant rates of LNG Production from the FLNG Facility;
|
(ii)
|
the amount of LNG that the FLNG Facility has available for loading at the commencement of any LNG offloading;
|
(iii)
|
the achievable LNG offloading rate of the FLNG Facility;
|
(iv)
|
the LNG cargo containment capacity of the LNG Carrier receiving LNG from the FLNG Facility;
|
(v)
|
the acknowledgement of the Lessee and the Operator that the offloading of LNG from the FLNG Facility to an LNG Carrier may occur in multiple parcels, and the Allowed Laytime for an LNG Carrier shall accommodate for multiple parcels (as appropriate); and
|
(vi)
|
such other matters as the Parties may agree (acting reasonably),
|
(e)
|
The Operator shall deliver to the Owner and the Lessee:
|
(i)
|
by no later than twelve (12) months prior to the Target Connection Date, the manual that sets out protocols for the maintenance of the FLNG Facility based upon the principles set out in Schedule 18 (
Base Work Programme and Budget Cycle
) (the "
Maintenance Manual
");
|
(ii)
|
by no later than twenty-four (24) months prior to the Target Connection Date, a set of standard operating protocols that sets out standard operating procedures applicable to the Lessee and the Operator for planning Feed Gas receipt, the management of LNG inventory and LNG delivery and the measurement and testing of Feed Gas and LNG, based upon the principles set out in Schedule 20 (
Feed Gas and LNG Specification
) (the "
Feed Gas Receipt and LNG Delivery Procedure
");
|
(iii)
|
by no later than twenty-four (24) months prior to the Target Connection Date, standard operating procedures for the operation of the FLNG Facility including how the FLNG Facility integrates with the Upstream Facilities, including in particular:
|
(A)
|
standard operating procedures for the measurement and testing of Feed Gas (including Retainage) and LNG that will be applied during the Commissioning Period and the Lease Period, as applicable;
|
(B)
|
inventory management interface procedures for assessing and communicating adjustments to the LNG Production Plan, Feed Gas flow rates, LNG Production rate, LNG Production volume and LNG inventory build-up to ensure the production and loading of LNG in accordance with the Annual Delivery Programme and to address day-to-day operational and commercial requirements;
|
(C)
|
detailed procedures for nominating Feed Gas for delivery and receipt at the Feed Gas Receipt Point and delivery of LNG at the LNG Delivery Point;
|
(D)
|
the Feed Gas Usage Allowance;
|
(E)
|
procedures applicable to the Operator in performing the Operating Services in respect of the FLNG Facility;
|
(F)
|
arrangements for cooperation and coordination between the Parties, including by way of daily meetings, information sharing, long term planning and logistics operations;
|
(G)
|
a process for regular review to ensure continued relevance; and
|
(H)
|
the Feed Gas Receipt and LNG Delivery Procedure,
|
(iv)
|
by no later than twelve (12) months prior to the Target Connection Date, protocols for HSSE procedures and standards to be applied by the Parties in performing their respective obligations under this Agreement based upon the principles set out in Schedule 5 (
Design, Build and Operational Readiness Requirements
) and Schedule 8 (
HSSE Requirements
) (the "
HSSE Manual
"); and
|
(v)
|
by no later than twelve (12) months prior to the Target Connection Date, protocols that for each initiating event identified by major accident risk and quantitative risk assessment studies undertaken in connection with the FLNG Facility, describe the event, potential consequences and escalation, control/mitigation and required responses, which, together with the protocols developed in Clause 7.6(c)(ii) (
Manuals and Protocols
), make up the "
Emergency Response Plan
".
|
(f)
|
The Parties agree that:
|
(i)
|
each Manual and Protocol shall comply and be consistent with the requirements of this Agreement, applicable International Standards to the extent that this Agreement does not prescribe the relevant standard, the Lessee's reasonable requirements with regard to HSSE operations as a result of the FLNG Facility being in the Lessee's Operating Boundary to the extent that this Agreement does not prescribe the relevant requirement (provided that such requirements shall not impose a standard higher than those prescribed by this Agreement or International Standards), and the standards of a Reasonable and Prudent Operator; and
|
(ii)
|
each Party shall cooperate to provide such assistance as may be reasonably requested by any other Party in connection with the preparation of the draft Manuals and Protocols.
|
(g)
|
Following receipt of a draft Manual and Protocol, the receiving Party shall, within forty-five (45) Days following submission by the other Party of the draft Manual and Protocol, provide notice to each other Party:
|
(i)
|
that the relevant draft Manual and Protocol is approved without comment; or
|
(ii)
|
setting out any reasonable comments or amendments to be incorporated into the relevant draft Manual and Protocol.
|
(h)
|
Where the receiving Party is the Operator and/or the Owner, approval or comments on the draft Manual and Protocol shall be given or made by the Owner and shall be deemed to include the approval or comments of the Operator.
|
(i)
|
Any comments or amendments proposed by a Party under Clause 7.6(g)(ii) (
Manuals and Protocols
) shall be incorporated into the relevant Manual and Protocol to the extent that such comments or amendments:
|
(i)
|
are reasonable;
|
(ii)
|
do not conflict with International Standards or the standards of a Reasonable and Prudent Operator;
|
(iii)
|
if included, would not:
|
(A)
|
cause a material adverse effect on the Owner's or the Operator's ability to achieve Performance Standards; and
|
(B)
|
conflict or have a material adverse effect on the operation of Lessee's Upstream Facilities or its obligations to deliver Feed Gas or offload LNG under this Agreement.
|
(j)
|
Within thirty (30) Days (or such longer period as the Parties agree acting reasonably) of receiving any proposed comments or amendments pursuant to Clause 7.6(g)(ii) (
Manuals and Protocols
), the preparing Party shall submit a revised draft of the relevant Manual and Protocol to reflect such comments or amendments. If:
|
(i)
|
the preparing Party does not accept that the comments made by the receiving Party conform with Clause 7.6(i) (
Manuals and Protocols
); or
|
(ii)
|
the revised Manual and Protocol is not approved by the other Parties,
|
(k)
|
If:
|
(i)
|
the Parties agree to the relevant provisions of the draft Manual and Protocol in accordance with Clause 7.6(j) (
Manuals and Protocols
), then the relevant draft Manual and Protocol shall become the relevant Manual and Protocol; or
|
(ii)
|
the Parties are unable to agree to the relevant provisions of the draft Manual and Protocol in accordance with Clause 7.6(j) (
Manuals and Protocols
), the Parties shall continue to meet in good faith until the Parties are able to agree to the relevant Manual and Protocol.
|
(l)
|
Until such time as the relevant Manual and Protocol is agreed by the Parties:
|
(i)
|
the Parties shall perform their obligations under this Agreement in relation to the matters to be covered by such Manual and Protocol acting as Reasonable and Prudent Operators and in accordance with the principles set out in the Schedule applicable to such Manual and Protocol; and
|
(ii)
|
no Party shall make any Claim that all or any part of this Agreement cannot be performed as a result of the failure to agree to such Manual and Protocol.
|
(m)
|
Once finalised in accordance with this Clause 7.6 (
Manuals and Protocols
), the Manuals and Protocols shall form part of this Agreement and each Party shall comply with its obligations thereunder. Such Manuals and Protocols can only be amended by written agreement between the Parties such agreement not to be unreasonably withheld, conditioned or delayed.
|
7.7
|
Sailaway and Arrival Dates
|
(a)
|
In addition to the notices required to be provided pursuant to Clause 7.4 (
Hold-points
), the Owner shall provide notice to the Lessee:
|
(i)
|
of the scheduled Sailaway Date by no later than three (3) months prior to its good faith estimate of the scheduled Sailaway Date;
|
(ii)
|
on the Sailaway Date, of the date on which the FLNG Facility is estimated to arrive at the LNG Hub Facilities; and
|
(iii)
|
on the date on which the FLNG Facility arrives at the LNG Hub Facilities (the "
Arrival Date
").
|
(b)
|
On and from the Arrival Date until the Ready for Connection Date:
|
(i)
|
the Owner and the Lessee shall comply with their respective obligations under the Interface Protocol in order to prepare the FLNG Facility and the LNG Hub Facilities for connection and commissioning; and
|
(ii)
|
upon reasonable notice:
|
(A)
|
the Lessee shall provide reasonable access to the Upstream Facilities to authorised representatives of the Owner, its Key Contractors (and their subcontractors) and its Subcontractors; and
|
(B)
|
the Owner shall provide reasonable access to the FLNG Facility to authorised representatives of the Lessee and any Other Contractors,
|
7.8
|
Project Schedule
|
(a)
|
The schedule for design, engineering, construction, installation, connection, commissioning and start-up of the GTA Project is set out in Schedule 4 (
Integrated Project Schedule
) ("
Project Schedule
").
|
(b)
|
Having regard to the views of the Owner and the Operator, the Lessee may, from time to time, amend the Project Schedule. The Lessee shall notify the Owner and the Operator promptly (and, in any event, within ten (10) Days) upon making any amendment to the Project Schedule.
|
(c)
|
The Owner and the Operator shall accommodate changes to the Project Schedule notified to them by the Lessee, provided that any such change to the Project Schedule shall not alter the Target Connection Date or the Scheduled Commissioning Start Date unless agreed by the Owner and the Lessee (acting reasonably).
|
(d)
|
The Lessee shall use its reasonable endeavours to:
|
(i)
|
complete any necessary pre‑commissioning of the Upstream Facilities; and
|
(ii)
|
procure that the Upstream Facilities are ready to start the commissioning and testing of the FLNG Facility by the Scheduled Commissioning Start Date.
|
(e)
|
The Parties shall use all reasonable endeavours to agree the impact of any FM Events upon the Critical Dates (if any) as soon as reasonably practicable, after the occurrence of the FM Event.
|
7.9
|
Target Connection Date
|
(a)
|
The "
Target Connection Date
" is [*****] (or as otherwise agreed by the Parties).
|
(a)
|
The Target Connection Date shall be extended by any period of delay caused by any FM Event impacting upon:
|
(i)
|
the Owner's ability to get the FLNG Facility ready to be moored at the LNG Hub Facilities and securely interconnected to the Lessee's Feed Gas pipeline at the Feed Gas Receipt Point; and/or
|
(ii)
|
the Lessee's ability to get the Upstream Facilities ready to receive the FLNG Facility at the LNG Hub Facilities and to be securely interconnected to the FLNG Facility at the Feed Gas Receipt Point; and/or
|
(iii)
|
pre-commissioning of the Upstream Facilities.
|
(b)
|
The Owner shall ensure that the FLNG Facility is ready to be moored at the LNG Hub Facilities and securely interconnected to the Lessee's Feed Gas pipeline at the Feed Gas Receipt Point by the Target Connection Date.
|
(c)
|
The Owner shall notify the Lessee of the date when the FLNG Facility is ready to be moored at the LNG Hub Facilities and securely interconnected to the Lessee's Feed Gas pipeline at the Feed Gas Receipt Point in accordance with the Interface Protocol (the date when the FLNG Facility is ready to be moored at the LNG Hub Facilities and securely interconnected to the Lessee's Feed Gas pipeline at the Feed Gas Receipt Point shall be the "
Ready for Connection Date
").
|
(d)
|
If the Owner issues a valid notice in accordance with Clause 7.9(d) (
Target Connection Date
) within sixty (60) Days prior to the Target Connection Date then the Lessee shall pay the Owner [*****] for each Day from when the notice was issued until the earlier of:
|
(i)
|
the Connection Date; or
|
(ii)
|
the Target Connection Date,
|
7.10
|
Commissioning Start Date
|
(a)
|
As soon as reasonably practicable on or after the Ready for Connection Date, the Lessee shall, with the cooperation of the Owner, moor or procure the mooring of the FLNG Facility to the LNG Hub Facilities and the Owner shall, with the assistance of the Lessee, securely interconnect the FLNG Facility to the Lessee's Feed Gas pipeline at the Feed Gas Receipt Point in each case in accordance with the Interface Protocol and the Commissioning Protocol (the date the FLNG Facility is securely interconnected to the Lessee's Feed Gas pipeline at the Feed Gas Receipt Point shall be the "
Connection Date
").
|
(b)
|
The "
Scheduled Commissioning Start Date
" shall be the date that is [*****] (or such lesser period as may be agreed by the Parties acting reasonably) after the later of:
|
(i)
|
the Target Connection Date; and
|
(ii)
|
the Connection Date.
|
(c)
|
The Scheduled Commissioning Start Date shall be extended for any period of delay caused by an FM Event that affects the Lessee's ability to prepare the Upstream Facilities to start the pre-commissioning and testing of the FLNG Facility by the Scheduled Commissioning Start Date to the extent such period has not already been taken into account in extending the Target Connection Date under Clause 7.9(b) (
Target Connection Date
).
|
(d)
|
The Lessee shall tender a notice to the Owner of the date when it has completed any necessary commissioning of the Upstream Facilities and the Upstream Facilities are ready to deliver Feed Gas to enable the FLNG Facility to start the commissioning and testing of the FLNG Facility in accordance with the Commissioning Protocol (the date on which the necessary commissioning of the Upstream Facilities has been completed and the Upstream Facilities are ready to deliver Feed Gas to enable the FLNG Facility to start such commissioning and testing shall be the "
Commissioning Start Date
").
|
(e)
|
The Owner and the Lessee shall commence commissioning and testing the FLNG Facility on the Commissioning Start Date in accordance with Clause 7.12 (
Commissioning Period
).
|
7.11
|
Ready for Connection and Commissioning Start Dates
|
(a)
|
If the Ready for Connection Date does not occur on or before the Target Connection Date, then the Owner shall pay Daily LDs to the Lessee Group (as calculated in accordance with Clause 7.15 (
Daily LDs
)) for each Day of delay until the Ready for Connection Date occurs, provided that the Owner shall not be liable to pay Daily LDs for any Day of delay to the Ready for Connection Date to the extent such delay is caused by, or attributable to, any member of the Lessee Group or any member of any Other Contractor Group.
|
(b)
|
If:
|
(i)
|
the Owner has achieved the Ready for Connection Date but the Connection Date is not achieved by [*****] after the Target Connection Date as a result of any period of delay to the extent caused by or attributable to any member of the Lessee Group; or
|
(ii)
|
the Commissioning Start Date does not occur on or before the Scheduled Commissioning Start Date,
|
(c)
|
If the Commissioning Start Date does not occur on or before the Scheduled Commissioning Start Date as a result of any delay to the extent caused by, or attributable to, any member of the Owner Group, Daily LDs shall be payable by the Owner to the Lessee (as calculated in accordance with Clause 7.15 (
Daily LDs
)) from the Scheduled Commissioning Start Date until the Commissioning Start Date, unless such delay is caused by an FM Event impacting upon any member of the Owner Group that has not already been taken into account in extending the Target Connection Date under Clause 7.9(b) (
Target Connection Date
).
|
(d)
|
The Parties shall keep each other regularly informed as to the progress of the development of the Upstream Facilities and the Work in accordance with Schedule 5 (
Design, Build and Operational Readiness Requirements
).
|
7.12
|
Commissioning Period
|
(a)
|
The "
Scheduled Commissioning Period
" for the FLNG Facility shall be the period:
|
(i)
|
of [*****] from the Commissioning Start Date, as such period may be prolonged by any period of delay caused by any FM Event; and
|
(ii)
|
during which Acceptance Tests shall be conducted in accordance with the Acceptance Testing Protocol.
|
(b)
|
The "
Commissioning Period
" shall commence on the Commissioning Start Date and end on the Commercial Operations Date.
|
(c)
|
During the Commissioning Period, each Party shall comply with its obligations under the Commissioning Protocol in order to achieve acceptance of the FLNG Facility as soon as reasonably practicable.
|
(d)
|
Subject to Clause 7.12(f) (
Commissioning Period
), for each Billing Period during the Commissioning Period the Lessee shall pay to the Owner for each Day during the Billing Period, an amount equal to the sum of:
|
(i)
|
[*****] of the Nominal Set Rate or the Adjusted Nominal Set Rate (as applicable); and
|
(ii)
|
[*****] per mmBtu of LNG Production on such Day capable of acceptance by an LNG Buyer,
|
(e)
|
The Lessee will deliver, and the Owner will ensure that the FLNG Facility takes delivery of and consumes, Feed Gas (including any Retainage) during the Commissioning Period in accordance with the Commissioning Protocol.
|
(f)
|
If there is any suspension or interruption to the activities that would otherwise have been undertaken during the Commissioning Period (other than as permitted in accordance with the Commissioning Protocol) that is:
|
(i)
|
to the extent caused by, or attributable to, any member of the Lessee Group or any member of any Other Contractor Group (including as a result of any unavailability of sufficient quantities of Feed Gas or any Suspension for Convenience); and
|
(ii)
|
not a result of an FM Event or an act or omission of any member of the Owner Group,
|
(iii)
|
on and from the first (1
st
) Day of such suspension or interruption until the earlier of:
|
(A)
|
the Day that is [*****] after the first (1
st
) Day of such suspension or interruption; and
|
(B)
|
the Day that such suspension or interruption ceases,
|
(iv)
|
if Clause 7.12(f)(iii)(A) (
Commissioning Period
) applies due to ongoing suspension or interruption and such suspension or interruption continues, then on and from the [*****] after the first (1
st
) Day of such suspension or interruption until the Day that such suspension or interruption ceases: [*****] of the Nominal Set Rate or the Adjusted Nominal Set Rate (as applicable),
|
7.13
|
Acceptance Testing
|
(a)
|
The Owner shall provide reasonable notice to the Lessee of the Acceptance Tests, and the Lessee shall procure that its duly authorised representatives attend any Acceptance Tests, in each case in accordance with the Acceptance Test Protocol.
|
(b)
|
If the FLNG Facility has passed all of the Acceptance Tests, then the Owner shall promptly give notice (together with any necessary supporting information) to the Lessee. Subject to Clause 7.13(c) (
Acceptance Testing
) and unless otherwise specified in the Acceptance Test Protocol, within five (5) Days after the Lessee receives notice from the Owner that the FLNG Facility has passed all of the Acceptance Tests, the Lessee shall execute and deliver to the Owner a Certificate of Acceptance.
|
(c)
|
If, despite having received notice from the Owner that the FLNG Facility has passed all of the Acceptance Tests, the Lessee considers, acting reasonably, that the FLNG Facility has not passed the Acceptance Tests:
|
(i)
|
the Lessee shall provide written notice to the Owner promptly (and in any event within five (5) Days after the date of receipt of notice from the Owner that the FLNG Facility has passed all of the Acceptance Tests, or such other period as may be agreed by the Parties, acting reasonably) as to the reasons why the Lessee considers that the FLNG Facility has not passed the Acceptance Tests; and
|
(ii)
|
duly authorised representatives of the Owner and the Lessee shall meet promptly (and in any event within a further five (5) Days, or such longer period as may be agreed by the Parties acting reasonably), of such notice being received by the Owner under Clause 7.13(c)(i) (
Acceptance Testing
) to discuss.
|
(d)
|
Provided that the Owner has given the Lessee notice of the Acceptance Tests in accordance with the Acceptance Test Protocol, failure without good reason of the Lessee's authorised representative to attend any Acceptance Tests in accordance with the Acceptance Test Protocol shall not of itself be grounds for the Lessee to consider that the FLNG Facility has not passed the Acceptance Tests.
|
(e)
|
Subject to Clause 7.13(f) (
Acceptance Testing
), if the FLNG Facility has not passed the Acceptance Tests prior to the end of the Scheduled Commissioning Period:
|
(i)
|
Daily LDs shall be payable by the Owner to the Lessee (as calculated in accordance with Clause 7.15 (
Daily LDs
)) until such time as the FLNG Facility has passed all of the Acceptance Tests or a Certificate of Acceptance has been delivered by the Lessee in accordance with Clause 7.13(f) (
Acceptance Testing
), provided that the Owner shall not be liable to pay Daily LDs for any Day of delay in passing the Acceptance Tests caused by an FM Event or due to any reason to the extent caused by or attributable to the Lessee Group or any member of any Other Contractor Group; and
|
(ii)
|
if and to the extent the delay in passing the Acceptance Tests was due to any reason caused by or attributable to the Owner Group (other than as a result of an FM Event), any Incentive Payment (if any) received by the Owner pursuant to Clause 7.9(e) (
Target Connection Date
) shall be reimbursed to the Lessee on a day-for-day basis as a once off reimbursement, in which case the Lessee shall invoice the Owner (as a once off payment) and the Owner shall pay to the Lessee a sum equal to the day-for-day Incentive Payment to be reimbursed, in accordance with Clause 14 (
Invoicing
).
|
(f)
|
If the FLNG Facility has not passed the Acceptance Tests prior to the end of the Scheduled Commissioning Period, the Lessee may, in its sole discretion, give notice to the Owner that it proposes to accept the FLNG Facility prior to the date that the FLNG Facility has passed all of the Acceptance Tests, in which case:
|
(i)
|
the Lessee may execute and deliver the Certificate of Acceptance; or
|
(ii)
|
the Lessee may request the Owner and the Operator to meet and discuss in good faith the amendment of this Agreement to account for any failure of the FLNG Facility to pass the Acceptance Tests, and the Lessee may execute and deliver a Certificate of Acceptance once such amendments have been agreed, provided that the Owner shall have the right (from time to time during the Lease Period) upon giving not less than thirty (30) Days' notice to the Lessee, to demonstrate that the FLNG Facility has passed all of the Acceptance Tests that were not passed prior to the Commercial Operations Date, in which case the Parties will agree the extent to which the original terms and conditions of this Agreement should apply on and from the date that the FLNG Facility has passed all of the Acceptance Tests, taking into account the amendments that had been previously agreed because of the failure of the FLNG Facility to pass the Acceptance Tests.
|
7.14
|
Acceptance Appraisals
|
(a)
|
Subject to the FLNG Facility attaining an average performance of [*****] relative to the Availability and Capacity Performance Standard determined by the application of Clause 13.8(d) (
Availability and Capacity Performance
) over a minimum period of [*****] from the Commercial Operations Date, or the Lessee determining (in its sole discretion) that the Acceptance Appraisals can commence notwithstanding such average performance has not been achieved by the FLNG Facility over such period, the Acceptance Appraisals shall commence and (as may be required, at the Owner's discretion) continue from time to time until such date as the Acceptance Appraisals are passed in accordance with this Clause 7.14 (
Acceptance Appraisals
).
|
(b)
|
The Owner shall provide reasonable notice to the Lessee of the Acceptance Appraisals, and the Lessee shall procure that its duly authorised representatives attend any Acceptance Appraisals, in each case in accordance with the Acceptance Appraisal Protocol.
|
(c)
|
If the FLNG Facility has passed all of the Acceptance Appraisals, then the Owner shall promptly give notice (together with any necessary supporting information) to the Lessee. Subject to Clause 7.14(d) (
Acceptance Appraisals
) and unless otherwise specified in the Acceptance Appraisal Protocol, within five (5) Days after the Lessee receives notice from the Owner that the FLNG Facility has passed all of the Acceptance Appraisals, the Lessee shall, subject to Clause 7.14(d) (
Acceptance Appraisals
), provide a written confirmation to the Owner that the FLNG Facility has passed all of the Acceptance Appraisals.
|
(d)
|
If, despite having received notice from the Owner that the FLNG Facility has passed all of the Acceptance Appraisals, the Lessee considers, acting reasonably, that the FLNG Facility has not passed the Acceptance Appraisals:
|
(i)
|
the Lessee shall provide written notice to the Owner promptly (and in any event within five (5) Days after the date of receipt of notice from the Owner that the FLNG Facility has passed all of the Acceptance Appraisals, or such other period as may be agreed by the Parties, acting reasonably) as to the reasons why the Lessee considers that the FLNG Facility has not passed the Acceptance Appraisals; and
|
(ii)
|
duly authorised representatives of the Owner and the Lessee shall meet promptly (and in any event within a further five (5) Days, or such longer period as may be agreed by the Parties acting reasonably), of such notice being received by the Owner under Clause 7.14(d)(i) (
Acceptance Appraisals
) to discuss.
|
(e)
|
Provided that the Owner has given the Lessee notice of the Acceptance Appraisals in accordance with the Acceptance Appraisal Protocol, failure without good reason of the Lessee's authorised representative to attend any Acceptance Appraisals in accordance with the Acceptance Appraisal Protocol shall not of itself be grounds for the Lessee to consider that the FLNG Facility has not passed the Acceptance Appraisals.
|
(f)
|
During the period beginning on the Commercial Operations Date and ending on the date the Acceptance Appraisals are passed in accordance with this Clause 7.14 (
Acceptance Appraisals
):
|
(i)
|
the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable) shall be adjusted as follows:
|
(ii)
|
the Pre-Appraisal Base Capacity shall be calculated as follows:
|
7.15
|
Daily LDs
|
(a)
|
Subject to Clause 7.18 (
Liquidated Damages and Standby Dayrate Liability Cap
), the amount of any liquidated damages payable by the Owner to the Lessee in accordance with Clauses 7.11(a) or 7.11(c) (
Ready for Connection and Commissioning Start Dates
) or 7.13(e)(i) (
Acceptance Testing
) ("
Daily LDs
"), shall be:
|
(i)
|
for Daily LDs due in accordance with Clause 7.11(a) (
Ready for Connection and Commissioning Start Dates
), calculated for each relevant Day starting on the Target Connection Date and ending on the Ready for Connection Date, on the basis that:
|
(A)
|
for the [*****] that such Daily LDs are payable, the Daily LDs shall be [*****] per Day;
|
(B)
|
for the [*****] following the period described in (A) above that such Daily LDs are payable, the Daily LDs shall be [*****] per Day; and
|
(C)
|
for each additional Day that such Daily LDs are payable thereafter, the Daily LDs shall be [*****] per Day;
|
(ii)
|
for Daily LDs due in accordance with Clause 7.11(c) (
Ready for Connection and Commissioning Start Dates
), calculated for each relevant Day starting on the Scheduled Commissioning Start Date and ending on the Commissioning Start Date on the basis that:
|
(A)
|
for the [*****] that such Daily LDs are payable, the Daily LDs shall be [*****] per Day;
|
(B)
|
for the [*****] following the period described in (A) above that such Daily LDs are payable, the Daily LDs shall be [*****] per Day; and
|
(C)
|
for each additional Day that such Daily LDs are payable thereafter, the Daily LDs shall be [*****] per Day; and
|
(iii)
|
for Daily LDs due in accordance with Clause 7.13(e)(i) (
Acceptance Testing
), calculated for each relevant Day starting on the date immediately following the last day of the Scheduled Commissioning Period and ending on the date the FLNG Facility has passed all of the Acceptance Tests or a Certificate of Acceptance has been delivered by the Lessee in accordance with Clause 7.13(f) (
Acceptance Testing
) on the basis that:
|
(A)
|
for the [*****] that such Daily LDs are payable, the Daily LDs shall be [*****] per Day;
|
(B)
|
for the [*****] following the period in (A) above that such Daily LDs are payable, the Daily LDs shall be [*****] per Day; and
|
(C)
|
for each additional Day that such Daily LDs are payable thereafter, the Daily LDs shall be [*****] per Day.
|
(b)
|
Daily LDs shall be payable monthly in arrears in accordance with Clause 14 (
Invoicing
).
|
7.16
|
Standby Dayrate
|
(a)
|
Subject to Clause 7.18 (
Liquidated Damages and Standby Dayrate Liability Cap
), the amount of any Standby Dayrate payable by the Lessee to the Owner in accordance with Clauses 7.11(b)(i) or 7.11(b)(ii) (
Ready for Connection and Commissioning Start Dates
) ("
Standby Dayrate
"), shall be:
|
(i)
|
for Standby Dayrate due in accordance with Clause 7.11(b)(i) (
Ready for Connection and Commissioning Start Dates
), calculated for each relevant Day starting on the date that is [*****] after the Target Connection Date and ending on the Connection Date on the basis that:
|
(A)
|
for the [*****] that such Standby Dayrate is payable, the Standby Dayrate shall be [*****] per Day;
|
(B)
|
for the [*****] following the period described in (A) above that such Standby Dayrate is payable, the Standby Dayrate shall be [*****] per Day; and
|
(C)
|
for each additional Day that such Standby Dayrate is payable thereafter, the Standby Dayrate shall be [*****] per Day; and
|
(ii)
|
for Standby Dayrate due in accordance with Clause 7.11(b)(ii) (
Ready for Connection and Commissioning Start Dates
), calculated for each relevant Day starting on the Scheduled Commissioning Start Date and ending on the Commissioning Start Date on the basis that:
|
(A)
|
for the [*****] that such Standby Dayrate is payable, the Standby Dayrate shall be [*****] per Day;
|
(B)
|
for the [*****] following the period described in (A) above that such Standby Dayrate is payable, the Standby Dayrate shall be [*****] per Day; and
|
(C)
|
for each additional Day that such Standby Dayrate is payable thereafter, the Standby Dayrate shall be [*****] per Day.
|
(b)
|
The Standby Dayrate shall be payable monthly in arrears in accordance with Clause 14 (
Invoicing
).
|
7.17
|
Bullet Payment
|
(a)
|
If the Lessee is paying and/or is due to pay Standby Dayrate pursuant to Clause 7.16(a) (
Standby Dayrate
) and such liability for Standby Dayrate continues for an aggregate period of [*****], then the Owner shall invoice the Lessee (as a once off payment in addition to any ongoing obligation to pay Standby Dayrate) and the Lessee shall pay to the Owner an amount equal to the sum of [*****], the Lessee pursuant to Clause 7.16(a) (
Standby Dayrate
), in accordance with Clause 14 (
Invoicing
) (the "
Bullet Payment
").
|
(b)
|
On and from the Commercial Operations Date until the date that is the third (3
rd
) Commercial Operations Date Anniversary, a "
Production Bank
" may accrue with a balance determined in accordance with Clauses 7.17(c) and
7.17(d) (
Bullet Payment
).
|
(c)
|
On each of the first (1
st
) Commercial Operations Date Anniversary, the second (2
nd
) Commercial Operations Date Anniversary and the third (3
rd
) Commercial Operations Date Anniversary, the balance of the Production Bank shall increase by the difference (if positive) between:
|
(i)
|
the amount of CE paid by the Lessee to the Owner in accordance with this Agreement during the period that is [*****] prior to the relevant Commercial Operations Date Anniversary; and
|
(ii)
|
[*****].
|
(d)
|
The balance of the Production Bank shall reduce by an amount equal to the sum of any:
|
(i)
|
Bullet Reimbursement; and
|
(ii)
|
Project Delay Payment Reimbursement,
|
(e)
|
If the Owner has received the Bullet Payment pursuant to Clause 7.17(a) (
Bullet Payment
), then on each of the first (1
st
) Commercial Operations Date Anniversary, the second (2
nd
) Commercial Operations Date Anniversary and the third (3
rd
) Commercial Operations Date Anniversary (each a "
Bullet Reimbursement Date
"), the Owner shall reimburse the Lessee on such Bullet Reimbursement Date, an amount equal to the lower of:
|
(i)
|
the balance of the Production Bank (taking into account the reimbursement priority principle set out in Clause 7.17(d) (
Bullet Payment
)); and
|
(ii)
|
the amount of the Bullet Payment not yet reimbursed pursuant to this Clause 7.17(e) (
Bullet Payment
),
|
(f)
|
On and from the fourth (4
th
) Commercial Operations Date Anniversary, if any amount of the Bullet Payment has not been reimbursed to the Lessee pursuant to Clause 7.17(e) (
Bullet Payment
) (such amount being the "
Retained Bullet Payment
"), the Owner shall elect, in its sole discretion and by giving reasonable notice to the Lessee, to reimburse the Retained Bullet Payment to the Lessee either:
|
(i)
|
as a once off reimbursement, in which case the Lessee shall invoice the Owner (as a once off payment) and the Owner shall pay to the Lessee a sum equal to the Retained Bullet Payment in accordance with Clause 14 (
Invoicing
); or
|
(ii)
|
[*****], in which case the Lessee shall invoice the Owner, on a [*****] on the first (1
st
) Day of each calendar month, and the Owner shall pay to the Lessee [*****] per invoice, in accordance with Clause 14 (
Invoicing
), until such time as the Retained Bullet Payment amount is reduced to [*****], provided that the final monthly invoice issued pursuant to this Clause 7.17(f)(ii) (
Bullet Payment
) shall be for an amount that is the lower of:
|
(A)
|
[*****]; and
|
(B)
|
the Retained Bullet Payment amount outstanding on such date.
|
7.18
|
Liquidated Damages and Standby Dayrate Liability Cap
|
(a)
|
The aggregate total of Daily LDs payable by the Owner under this Agreement shall not exceed [*****] ("
Liquidated Damages Liability Cap
").
|
(b)
|
The aggregate total of Standby Dayrate payable by the Lessee under this Agreement shall not exceed [*****] ("
Standby Dayrate Liability Cap
").
|
(c)
|
The Parties agree that:
|
(i)
|
all amounts of Daily LDs for which the Owner may become liable or Standby Dayrate for which the Lessee may become liable are genuine pre-estimates of the losses which may be sustained by the Owner or the Lessee (as applicable) in the event of delay contemplated herein and are within proportion to the legitimate interests of the Party receiving Daily LDs or Standby Dayrate (as applicable) having regard to the nature of the obligations that are to be performed by the Party paying the Daily LDs or Standby Dayrate (as applicable) under this Agreement and are not a penalty;
|
(ii)
|
the Daily LDs and Standby Dayrate (as applicable) together with the remedies provided under Clauses 7.9 (
Target Connection Date
) to 7.18 (
Liquidated Damages and Standby Dayrate Liability Cap
) (inclusive), the relevant termination rights under Clause 23 (
Suspension and Termination
) and rights under Clause 24 (
Dispute Resolution
), shall be the sole and exclusive remedies for the Owner or the Lessee (as applicable) in relation to a failure to meet:
|
(A)
|
the obligations set out in Clauses 7.9 (
Target Connection Date
), 7.10 (
Commissioning Start Date
), 7.11 (
Ready for Connection and Commissioning Start Dates
), 7.12 (excluding, in the case of the Owner, Clauses 7.12(d) and 7.12(f)) (
Commissioning Period
) and 7.13(e) (
Acceptance Testing
); and
|
(B)
|
any failure to achieve the Project Schedule (as amended from time to time); and
|
(iii)
|
the Operator shall have no liability for, nor have any claim against the Lessee as a result of, any delay as contemplated under Clauses 7.10 (
Commissioning Start Date
), 7.11 (
Ready for Connection and Commissioning Start Dates
), 7.12 (
Commissioning Period
), 7.13 (
Acceptance Testing
) and/or 7.14 (
Acceptance Appraisals
).
|
7.19
|
Commercial Operations Date
|
(a)
|
the FLNG Facility passes the last Acceptance Test, which date shall be set out in the Certificate of Acceptance; or
|
(b)
|
the Lessee executes and delivers a Certificate of Acceptance in accordance with Clause 7.13(f) (
Acceptance Testing
).
|
8.
|
LEASE PERIOD
|
8.1
|
Lease Period
|
8.2
|
Continuation Date
|
(a)
|
For the purposes of this Clause 8.2 (
Continuation Date
):
|
(i)
|
"
Continuation Criteria
" means the continuation criteria set out in Part A of Schedule 16 (
Continuation Criteria
); and
|
(ii)
|
"
Minimum Criteria
" means the relevant minimum criteria set out in Part B of Schedule 16 (
Continuation Criteria
).
|
(b)
|
[*****] prior to:
|
(i)
|
[*****] Commercial Operations Date Anniversary, the Owner and the Lessee shall meet to discuss the performance of the FLNG Facility [*****] ("
First Continuation Date
"); and
|
(ii)
|
[*****] Commercial Operations Date Anniversary, the Owner and the Lessee shall meet to discuss the performance of the FLNG Facility [*****] ("
Second Continuation Date
"),
|
(c)
|
If, during the [*****] immediately prior to the meeting of the Owner and the Lessee in accordance with Clauses 8.2(b)(i) or 8.2(b)(ii) (
Continuation Date
) (as applicable), the FLNG Facility does not meet the relevant Minimum Criteria, the Lessee may terminate this Agreement with effect from the applicable Continuation Date. If this Agreement is terminated in accordance with this Clause 8.2(c) (
Continuation Date
), this Agreement (other than with respect to the Surviving Obligations) shall end on the applicable Continuation Date and, subject to Clause 23.8(c) (
Consequences of Termination
), the Parties shall have no further liability to each other, other than with respect to the Surviving Obligations and any rights and obligations that have accrued prior to the date of such termination.
|
(d)
|
If, during the [*****] immediately prior to the meeting of the Owner and the Lessee in accordance with Clauses 8.2(b)(i) or 8.2(b)(ii) (
Continuation Date
) (as applicable), the FLNG Facility meets or exceeds the Continuation Criteria, the Lease Period shall continue on the prevailing terms and conditions.
|
(e)
|
If, during the [*****] immediately prior to the meeting of the Owner and the Lessee in accordance with Clauses 8.2(b)(i) or 8.2(b)(ii) (
Continuation Date
) (as applicable), the FLNG Facility does not meet the Continuation Criteria but meets or exceeds the Minimum Criteria, then:
|
(i)
|
the Owner shall promptly prepare a Variation Order Proposal in accordance with Clause 6 (
Variations
), which the Owner considers would be reasonably expected to ensure that the FLNG Facility is able to meet the Continuation Criteria following the applicable Continuation Date if the Variation is implemented prior to such Continuation Date;
|
(ii)
|
the Lessee shall consider such Variation Order Proposal prepared by the Owner pursuant to
Clause
8.2(e)(i) (
Continuation Date
) without delay;
|
(iii)
|
if the Lessee agrees with the Variation Order Proposal prepared by the Owner pursuant to Clause 8.2(e)(i) (
Continuation Date
):
|
(A)
|
the Lessee shall give notice to the Owner requiring the Owner to implement the Variation in accordance with such Variation Order Proposal at the Owner's sole risk and cost before the applicable Continuation Date; and
|
(B)
|
the Lease Period shall continue without any amendment to the terms and conditions of this Agreement; or
|
(iv)
|
if the Lessee does not agree that the Variation Order Proposal prepared by the Owner in accordance with Clause 8.2(e)(i) (
Continuation Date
) would be reasonably expected to ensure that the FLNG Facility is able to meet the Continuation Criteria following the applicable Continuation Date if the Variation is implemented prior to such Continuation Date:
|
(A)
|
at the Lessee's request, the Owner and the Lessee shall meet and discuss the Variation Order Proposal, including:
|
(1)
|
whether the Owner should implement the Variation at the Owner's sole risk and cost before the applicable Continuation Date; and
|
(2)
|
the changes to the Performance Standards and terms of conditions of this Agreement that will apply if the FLNG Facility does not meet the Continuation Criteria after the implementation of such Variation; and/or
|
(B)
|
the Lessee may propose amendments to the Variation Order Proposal prepared by the Owner pursuant to Clause 8.2(e)(i) (
Continuation Date
) and/or any appropriate changes to the Performance Standards and the terms and conditions of the Agreement, and the Owner shall either:
|
(1)
|
accept the amendments to the Variation Order Proposal proposed by the Lessee and implement the Variation in accordance with the amended Variation Order Proposal at the Owner's sole risk and cost before the applicable Continuation Date, and the Lease Period shall continue without any amendment to the terms and conditions of this Agreement;
|
(2)
|
accept the proposed changes to the Performance Standards and the terms and conditions of this Agreement, and the Lease Period shall continue in accordance with such amended terms and conditions (including the Performance Standards); or
|
(3)
|
refer a dispute between the Owner and the Lessee as to whether the implementation of the Variation in accordance with the Variation Order Proposal prepared by the Lessee would be reasonably expected to ensure that the FLNG Facility is able to meet the Continuation Criteria if such Variation is implemented prior to the applicable Continuation Date to an Independent Expert for determination in accordance with Clause 24.4 (
Expert Determination
).
|
(f)
|
If the Owner refers the dispute regarding the Variation Order Proposal to an Independent Expert in accordance with Clause 8.2(e)(iv)(B)(3) (
Continuation Date
) and the Independent Expert determines that the Variation proposed by the Owner pursuant to Clause 8.2(e)(i) (
Continuation Date
) (with or without any amendments proposed by the Lessee), if implemented before the applicable Continuation Date:
|
(i)
|
would be reasonably expected to ensure that the FLNG Facility is able to meet the Continuation Criteria following the applicable Continuation Date:
|
(A)
|
the Owner shall implement the Variation, together with such of the Lessee's proposed amendments (if any) that the Independent Expert considers are necessary to ensure that the FLNG Facility is able to meet the Continuation Criteria at the Owner's risk and cost before the applicable Continuation Date; and
|
(B)
|
the Lease Period shall continue without any amendment to the terms and conditions of this Agreement; or
|
(ii)
|
would not be reasonably expected to ensure that the FLNG Facility is able to meet the Continuation Criteria following the applicable Continuation Date, then the Lessee may terminate this Agreement with effect from the applicable Continuation Date.
|
(g)
|
If this Agreement is terminated in accordance with Clause 8.2(f) (
Continuation Date
), then this Agreement (other than the Surviving Obligations) shall end on the applicable Continuation Date and, subject to Clause 23.8(c) (
Consequences of Termination
), the Parties shall have no further liability to each other, other than with respect to the Surviving Obligations and any rights and obligations that have accrued prior to the date of such termination.
|
8.3
|
Additional Term
|
(a)
|
If during the Lease Period:
|
(i)
|
the Lessee suspends the performance of the Operating Services for convenience pursuant to Clause 23.1(b) (
Suspension by Lessee
);
|
(ii)
|
a Zero Capital Dayrate applies in accordance with Clause 13.5 (
Zero Capital Dayrate
);
|
(iii)
|
there is an FM Event that does not give rise to a Project Delay Event;
|
(iv)
|
there is a Project Delay Event and Clause 15.5(d) (
Prolonged Project Delay FM
) applies; or
|
(v)
|
a right to convert any Accumulated Retainage Cost to an Excess Retainage Extension Day arises pursuant to Schedule 7 (
Feed Gas Usage Allowance
),
|
(vi)
|
not less than twenty-four (24) months prior to the end of the Lease Period (or, if the relevant event occurs within the final twenty-four (24) months of the Lease Period, as soon as reasonably practicable after such event), the Lessee requests in writing an extension to the Lease Period (which extension shall be for a period of not less than [*****];
|
(vii)
|
no amount due and payable by the Lessee to the Owner or the Operator is outstanding at the time of the request, save for any invoiced amount disputed in accordance with Clause 14.5 (
Disputed Invoices
); and
|
(viii)
|
the Owner, acting as a Reasonable and Prudent Operator, determines that the FLNG Facility can provide the relevant services in accordance with the relevant Performance Standards (including, without limitation, HSSE standards) for the period of the requested extension without any need for dry‑docking,
|
(b)
|
The period of the Additional Term (which period shall not be more than [*****] shall be:
|
(i)
|
the sum of:
|
(A)
|
the aggregate of the Suspension Extension Days, the Zero Capital Dayrate Extension Days, the FM Event Extension Days, the Project Delay Event Extension Days and the Excess Retainage Extension Days (the "
Aggregate Extension Days
"); and
|
(B)
|
if the Aggregate Extension Days is a period that is less than [*****], the number of Days which is the difference between [*****] and the Aggregate Extension Days (the "
Supplementary Extension Days
"); or
|
(ii)
|
if a period shorter than the sum calculated in Clause 8.3(b)(i) (
Additional Term
) is requested, a portion of the Aggregate Extension Days (which shall be for a period of not less than [*****].
|
(c)
|
The Adjusted Nominal Set Rate applicable on each Day during the Additional Term shall be equal to:
|
(i)
|
with respect to Aggregate Extension Days (such amount to apply prior to Clause 8.3(c)(ii) (
Additional Term
) (if any) during the Additional Term):
|
(A)
|
the sum of:
|
(1)
|
the number of Suspension Extension Days multiplied by the average Suspension Extension Dayrate;
|
(2)
|
the number of Zero Capital Dayrate Extension Days multiplied by the average Zero Capital Dayrate Extension Dayrate;
|
(3)
|
the number of FM Event Extension Days multiplied by the average FM Event Extension Dayrate;
|
(4)
|
the number of Project Delay Extension Days multiplied by the average Project Delay Extension Dayrate; and
|
(5)
|
the number of Excess Retainage Extension Days multiplied by the average Excess Retainage Extension Dayrate,
|
(B)
|
the Aggregate Extension Days; and
|
(ii)
|
with respect to Supplementary Extension Days, [*****] of the Nominal Set Rate or Adjusted Nominal Set Rate applicable immediately prior to the Additional Term (such amount to apply after Clause 8.3(c)(i) (
Additional Term
) during the Additional Term).
|
(d)
|
For the purposes of this Clause 8.3 (
Additional Term
):
|
(i)
|
a Day during which the Operating Services were suspended for convenience pursuant to Clause 23.1(b) (
Suspension by Lessee
) shall be a "
Suspension Extension Day
";
|
(ii)
|
the CE of the Dayrate for a Suspension Extension Day shall be equal to the Nominal Set Rate or Adjusted Nominal Set Rate that applied during such Suspension Extension Day less any CE actually paid on account of such Suspension Extension Day ("
Suspension Extension Dayrate
");
|
(iii)
|
a Day during which a Zero Capital Dayrate applied in accordance with Clause 13.5 (
Zero Capital Dayrate
) shall be a "
Zero Capital Dayrate Extension Day
";
|
(iv)
|
the CE of the Dayrate for a Zero Capital Dayrate Extension Day shall be equal to the Nominal Set Rate or Adjusted Nominal Set Rate that applied during such Zero Capital Dayrate Extension Day less any CE actually paid on account of such Zero Capital Dayrate Extension Day ("
Zero Capital Dayrate Extension Dayrate
");
|
(v)
|
a Day during which there was an FM Event that did not give rise to a Project Delay Event shall be an "
FM Event Extension Day
";
|
(vi)
|
the CE of the Dayrate for an FM Event Extension Day shall be equal to the Nominal Set Rate or Adjusted Nominal Set Rate that applied during such FM Event Extension Day less any CE actually paid on account of such FM Event Extension Day ("
FM Event Extension Dayrate
");
|
(vii)
|
the number of Days of extension during the Additional Term on account of a Project Delay Event shall be equal to the number of Days calculated in accordance with 15.5(d)(i) (
Prolonged Project Delay FM
) (each such Day, a "
Project Delay Event Extension Day
");
|
(viii)
|
the CE of the Dayrate for a Project Delay Event Extension Day shall be equal to the Nominal Set Rate or Adjusted Nominal Set Rate applicable immediately prior to the Additional Term, less any Project Delay Payment for each Day ("
Project Delay Event Extension Dayrate
");
|
(ix)
|
a Day converted pursuant to Schedule 7 (
Feed Gas Usage Allowance
) shall be an "
Excess Retainage Extension Day
"; and
|
(x)
|
the CE of the Dayrate for an Excess Retainage Extension Day shall be [*****] ("
Excess Retainage Extension Dayrate
");
|
9.
|
OPERATIONS AND MAINTENANCE
|
9.1
|
Timings to be Determined
|
9.2
|
Operating Plan
|
(a)
|
On or before 1 August of each Contract Year (other than the first Contract Year), the Operator shall provide the Lessee with an operating plan for the next Contract Year setting out:
|
(i)
|
details of all planned operation and maintenance activities to be carried out in the next Contract Year and a summary of planned operation and maintenance activities to be carried out in the two (2) Contract Years following the next Contract Year;
|
(ii)
|
subject to the provisions of Clauses 9.3(b) (
Scheduled Maintenance
) and 9.5 (
Work Programme and Budget
), details and proposed timing of the Scheduled Maintenance for the next Contract Year;
|
(iii)
|
details of the performance of the FLNG Facility in the current and previous Contract Year in accordance with the requirements of the Operations Manual;
|
(iv)
|
such other relevant information as may impact annual LNG Production and the Lessee's delivery and sales scheduling for the next Contract Year; and
|
(v)
|
such other information as is required pursuant to section 3.1 of Schedule 14 (
Operating Services
),
|
(b)
|
On or before twelve (12) months prior to the Scheduled Commercial Operations Date, the Operator shall provide the Lessee with the Operating Plan in respect of the first Contract Year.
|
9.3
|
Scheduled Maintenance
|
(a)
|
The Operator shall have the right to curtail or temporarily discontinue, in whole or in part, the receipt, treatment and liquefaction of Feed Gas by, and storage and offloading of LNG from, the FLNG Facility for the purposes of maintaining the FLNG Facility (other than as a result of any defect or deficiency in the FLNG Facility, including a failure of the FLNG Facility to achieve the Performance Standards) for such periods as would be required by a Reasonable and Prudent Operator and otherwise not exceeding [*****] ("
Scheduled Maintenance
"), and Clause 13.8(f) (
Availability and Capacity Performance
) shall apply.
|
(b)
|
The Parties shall discuss and agree a mutually convenient time for Scheduled Maintenance to occur during the next Contract Year in order to minimise, to the extent practicable, the impact of Scheduled Maintenance on GTA Project operations including LNG offtake and loading. The Scheduled Maintenance for the next Contract Year shall be agreed at the same time and in the same manner as the Work Programme and Budget for the next Contract Year in accordance with Clause 9.5 (
Work Programme and Budget
) and, unless otherwise agreed pursuant to Clause 9.5(g) (
Work Programme and Budget
), the Operator shall carry out Scheduled Maintenance at the time agreed in the Work Programme and Budget.
|
9.4
|
Forced Outage
|
9.5
|
Work Programme and Budget
|
(a)
|
No later than one hundred and eighty (180) Days prior to the end of a Contract Year, the Operator shall deliver to the Lessee a draft Work Programme and Budget for the next Contract Year. The Work Programme and Budget for the first Contract Year shall be based on the Base Work Programme and Budget Cycle in Schedule 18 (
Base Work Programme and Budget Cycle
) taking into account Lessee provided services.
|
(b)
|
No later than sixty (60) Days after receipt of the draft Work Programme and Budget, the Lessee shall notify the Operator that:
|
(i)
|
the relevant draft Work Programme and Budget is approved without comment; or
|
(ii)
|
the relevant draft Work Programme and Budget is not approved, in which case the Lessee shall include with such notice reasonable comments or amendments to the draft Work Programme and Budget and identify each line item of the Work Programme and Budget that the Lessee does not approve (including the Lessee's reasonable valuation of what such line item should be).
|
(c)
|
Within seven (7) Days after the Operator receives notice from the Lessee that the draft Work Programme and Budget is not approved, the Lessee and the Operator shall meet and discuss the Lessee's comments and/or amendments to the draft Work Programme and Budget. If the Lessee and the Operator are unable to agree the Work Programme and Budget during such meeting, the Operator may submit a further revised draft Work Programme and Budget to the Lessee for approval no later than fifteen (15) Days after the date of such meeting, and Clause 9.5(b) (
Work Programme and Budget
) shall apply with respect to such revised draft Work Programme and Budget.
|
(d)
|
Upon the Lessee notifying the Operator pursuant to Clause 9.5(b)(i) (
Work Programme and Budget
) that a draft Work Programme and Budget is approved, or the Lessee and the Operator agreeing to a Work Programme and Budget in accordance with Clause 9.5(c) (
Work Programme and Budget
), such draft Work Programme and Budget shall become the Work Programme and Budget for the next Contract Year for the purposes of this Agreement.
|
(e)
|
The Work Programme and Budget shall reflect a collaborative, reimbursable working model for the Operator. If the Lessee and the Operator are unable to agree upon the Work Programme and Budget for a Contract Year, then the Work Programme and Budget for the relevant Contract Year shall be the draft Work Programme and Budget proposed by the Operator in Clause 9.5(a) (
Work Programme and Budget
), as adjusted to account for each line item of the Work Programme and Budget notified pursuant to Clause 9.5(b)(ii) (
Work Programme and Budget
) that the Lessee did not approve whereby such line item shall be adjusted:
|
(i)
|
if the Work Programme and Budget from the preceding Contract Year included the respective line item, for US CPI; or
|
(ii)
|
if the Work Programme and Budget from the preceding Contract Year did not include the respective line item, to the mid-point of the difference between the Operator's position as notified pursuant to Clause 9.5(a) (
Work Programme and Budget
) and the Lessee's position as notified pursuant to Clause 9.5(b)(ii) (
Work Programme and Budget
) with respect to the value of the line item,
|
(f)
|
The Work Programme and Budget shall set out the amount of the OE that will apply for each Day during the Contract Year for the purposes of Clause 13.1 (
Elements of the Dayrate
).
|
(g)
|
The Lessee or the Operator may propose amendments to the agreed Work Programme and Budget within any given Contract Year. If the Lessee or the Operator proposes an amendment to the Work Programme and Budget, the Lessee and the Operator shall meet and discuss and shall endeavour to reach agreement on any such amendments.
|
(h)
|
Subject to Clause 9.5(k) (
Work Programme and Budget
), promptly after the end of each Contract Year, the Operator shall prepare a reconciliation of the actual operating costs properly incurred during such Contract Year (and, in the case of the first Contract Year, the amounts attributable to the reimbursable items contemplated by Clauses 9.5(l)(iv) and 9.5(l)(v) (
Work Programme and Budget
)) (the "
Actual Opex
") and the aggregate of the OE paid by the Lessee during such Contract Year including any amounts paid by the Owner pursuant to Clause 3.4(b) (
Operator's General Obligations
) and/or Clause 13.11 (
Emissions and HSSE Performance
). Any amounts paid by the Operator to the Lessee as a result of any Claim by the Lessee against the Operator under or in connection with this Agreement (including pursuant to Clause 11 (
Gas Specification and LNG Specification
)) shall not constitute Actual Opex. Any amounts paid by the Owner pursuant to Clause 3.4(b) (
Operator's General Obligations
) and Clause 13.11 (
Emissions and HSSE Performance
) shall not constitute Actual Opex. If the Actual Opex is greater than the aggregate OE paid by the Lessee during the Contract Year, the Lessee shall pay to the Operator such additional amount in accordance with Clause 14 (
Invoicing
). If the Actual Opex is less than the aggregate OE paid by the Lessee during the Contract Year, such difference shall be set off against the next amount(s) owing to the Operator by the Lessee, except in the final Contract Year when the Operator shall pay the Lessee such difference in accordance with Clause 14 (
Invoicing
). Any amounts due under this Clause 9.5(h) (
Work Programme and Budget
) are subject to the audit rights of the Lessee, Co-venturers and States set out in Clause 14.7 (
Audit, Records and Financial Reporting
).
|
(i)
|
The Parties have agreed a generic work programme and preliminary budget for three (3) Contract Years representing the full anticipated maintenance cycle of the FLNG Facility ("
Base Work Programme and Budget Cycle
"), as set out in Schedule 18 (
Base Work Programme and Budget Cycle
). The Work Programme and Budget for all Contract Years shall be developed by reference to the Base Work Programme and Budget Cycle, as adjusted to reflect any Variation implemented in accordance with this Agreement.
|
(j)
|
The Work Programme and Budget and Base Work Programme and Budget Cycle shall:
|
(i)
|
not include any work proposed for the maintenance, repair, modification, rectification and/or replacement of any Equipment or any part of the FLNG Facility which arises from deficiencies in the Work and/or Operating Services (to the extent not attributable to the Lessee Group);
|
(ii)
|
be inclusive of any forecasted Mauritanian and Senegalese Taxes (including on account of the GTA Fiscal Regime) to be properly and necessarily incurred by the Operator in performing the Operating Services in accordance with this Agreement; and
|
(iii)
|
be prepared on the principle that any contingencies shall not be used for any maintenance, repair, modification, rectification and/or replacement of any Equipment or any part of the FLNG Facility which arise from deficiencies in the Work and/or Operating Services (to the extent not attributable to the Lessee Group).
|
(k)
|
In any Contract Year, if any work is proposed and conducted for the maintenance, repair, modification, rectification and/or replacement of any Equipment or any part of the FLNG Facility that is not identified in the Base Work Programme and Budget Cycle, as adjusted to reflect any Variation implemented in accordance with this Agreement, such work shall be deemed to be Additional Capital Work, the cost of which shall be borne by the Owner unless otherwise agreed by the Parties, acting reasonably.
|
(l)
|
The pre-operations activities of the Operator shall be as set out in Schedule 18 (
Base Work Programme and Budget Cycle
) and comprise of the following elements:
|
(i)
|
Crew, the costs of which shall be wholly to the account of the Owner;
|
(ii)
|
field logistics, which shall be provided by the Lessee;
|
(iii)
|
in-land logistics, which shall be provided by the Lessee;
|
(iv)
|
two-year spares and capital spares, the initial costs of which shall be to the account of the Owner subject to reimbursement by the Lessee on the Commercial Operations Date for any two-year spares and capital spares not consumed during the Commissioning Period to the extent they can be utilised under the Work Programme and Budget, in which case the Owner shall invoice the Lessee (as a once off payment) and the Lessee shall pay to the Owner such amount in accordance with Clause 14 (
Invoicing
); and
|
(v)
|
consumables (including refrigerants), the initial costs of which shall be to the account of the Owner subject to reimbursement by the Lessee on the Commercial Operations Date for any consumables (including refrigerants) not consumed during the Commissioning Period to the extent they can be utilised under the Work Programme and Budget, in which case the Owner shall invoice the Lessee (as a once off payment) and the Lessee shall pay to the Owner such amount in accordance with Clause 14 (
Invoicing
).
|
10.
|
DELIVERY AND OFFTAKE ARRANGEMENTS
|
10.1
|
Timings to be Determined
|
10.2
|
Annual Delivery Programme
|
(a)
|
On or before 25 September of each Contract Year, other than the first Contract Year, the Lessee shall prepare and provide to the Operator and the Owner a proposed Annual Delivery Programme in respect of the next Contract Year. The Lessee shall prepare and provide the Annual Delivery Programme in respect of the first Contract Year by the time required by Clause 10.2(g) (
Annual Delivery Programme
) in the form substantially set out in Schedule 19 (Form of
First Annual Delivery Programme
).
|
(b)
|
On or before 15 November of each Contract Year, other than the first Contract Year:
|
(i)
|
the Lessee and the Operator shall meet to discuss the proposed Annual Delivery Programme; and
|
(ii)
|
the Lessee shall have regard to:
|
(A)
|
any comments made by the Operator during the meeting; and
|
(B)
|
the requirements of Clauses 10.2(d) and 10.2(e) (
Annual Delivery Programme
),
|
(c)
|
On or before 1 December of each Contract Year, other than the first Contract Year, the Lessee shall issue the final Annual Delivery Programme, including any agreed modifications arising out of the process contemplated by Clause 10.2 (
Annual Delivery Programme
).
|
(d)
|
The Annual Delivery Programme for the next Contract Year shall include:
|
(i)
|
the volume of LNG to be produced and loaded as Cargoes from the FLNG Facility (including individual instalments to be loaded where an LNG Carrier is loaded in more than one berthing);
|
(ii)
|
the proposed scheduling of Cargoes;
|
(iii)
|
the timing of Scheduled Maintenance, which shall be consistent with the Scheduled Maintenance agreed with the Operator in accordance with Clause 9.3(b) (
Scheduled Maintenance
);
|
(iv)
|
in respect of each Cargo (to the extent known), details of:
|
(A)
|
the arrival window, loading window, scheduled departure date and in respect of loadings taking place in more than one berthing, an estimate of the volumes to be loaded for each portion, the loading windows and the departure dates;
|
(B)
|
the proposed volume of LNG to be delivered to the LNG Delivery Point;
|
(C)
|
the name and cargo capacity (expressed in cubic metres of LNG) of the LNG Carrier expected to be utilised;
|
(D)
|
if applicable, the extent to which the last LNG Carrier in the loading pattern represents a partial delivery for the following Contract Year; and
|
(v)
|
such additional information as the Parties agree.
|
(e)
|
In preparing the Annual Delivery Programme, Confirmed Delivery Schedule, Specific Delivery Schedule and LNG Production Plan, the Lessee shall have regard to:
|
(i)
|
normal weather and metocean conditions at the LNG Hub Facilities;
|
(ii)
|
maximisation of LNG Production, and to the extent compatible with such maximisation of LNG Production, the principle that LNG Production should be reasonably ratable and Cargoes scheduled at reasonably evenly spaced intervals throughout the Contract Year (subject to and taking into account ambient conditions and variance in the production of LNG during the Contract Year) and having regard to the size of the LNG Carriers to be used by the LNG Buyers (and instalment loadings in respect of Cargoes);
|
(iii)
|
the LNG processing capacity and the working LNG storage capacity of the FLNG Facility as set out in Schedule 1 (
Basis of Design
) and Schedule 2 (
Technical Specification
);
|
(iv)
|
the Allowed Laytime;
|
(v)
|
the desire of all the Parties to have continuous LNG production by the FLNG Facility;
|
(vi)
|
the Operating Plan;
|
(vii)
|
any Scheduled Maintenance;
|
(viii)
|
the upstream gas production plan and any associated downtime for the Upstream Facilities;
|
(ix)
|
reasonable requests from LNG Buyers under the LNG SPA; and
|
(x)
|
any operational cooldown requirements of any LNG Carrier.
|
(f)
|
If the Operator and the Lessee cannot agree on the Annual Delivery Programme for any Contract Year by 1 December of each Contract Year, then the Lessee shall determine the Annual Delivery Programme in accordance with the requirements under Clauses 10.2(d) and 10.2(e) (
Annual Delivery Programme
).
|
(g)
|
The Parties agree that the Annual Delivery Programme for the first (1
st
) Contract Year shall be determined as follows:
|
(i)
|
Following the Commissioning Start Date, at a reasonable time prior to (but in any event not later than three (3) months prior to) the Anticipated Commercial Operations Date, the Lessee shall prepare and provide to the Operator and the Owner a proposed Annual Delivery Programme for the first (1
st
) Contract Year based on the progress of the commissioning work and other project conditions prevailing at such time.
|
(ii)
|
Within fifteen (15) Days of receipt of the proposed Annual Delivery Programme in accordance with Clause 10.2(g)(i) (
Annual Delivery Programme
), the Parties shall meet to discuss the Annual Delivery Programme proposed in accordance with Clause 10.2(g)(i) (
Annual Delivery Programme
), and the Lessee shall have regard to:
|
(A)
|
any comments made by the Operator during the meeting; and
|
(B)
|
the requirements of Clauses 10.2(d) and 10.2(e) (
Annual Delivery Programme
),
|
(iii)
|
Within five (5) Days of the meeting in Clause 10.2(g)(ii) (
Annual Delivery Programme
), the Lessee shall issue the final Annual Delivery Programme, including any agreed modifications arising out of the process contemplated by Clause 10.2(g)(ii) (
Annual Delivery Programme
), or, if the Parties cannot agree, the Lessee may determine the Annual Delivery Programme for the first Contract Year in accordance with the requirements under Clauses 10.2(g)(ii)(A) and 10.2(g)(ii)(B) (
Annual Delivery Programme
).
|
(iv)
|
In any event, the Annual Delivery Programme for the first Contract Year shall be finalised no later than sixty (60) Days prior to the Anticipated Commercial Operations Date.
|
10.3
|
Specific Delivery Schedule
|
(a)
|
No later than three (3) Days prior to the first (1
st
) Day of each month ("
m
1
") in each Contract Year, the Lessee shall produce and provide to the Operator and the Owner the forward schedule for deliveries of Cargoes:
|
(i)
|
for the Days in the month commencing on the first (1
st
) Day of the month following m
1
("
Confirmed Delivery Schedule
"); and
|
(ii)
|
to the extent known, for the period of two (2) months commencing on the first (1
st
) Day of the month that is the second (2
nd
) month following m
1
,
|
(b)
|
The Specific Delivery Schedule shall take into account the Annual Delivery Programme and shall include updated information in respect of the matters listed in Clause 10.2(d) (
Annual Delivery Programme
).
|
(c)
|
If the Lessee fails to issue a Specific Delivery Schedule for any month of a Contract Year, the schedule set out for that month in the immediately preceding Specific Delivery Schedule shall apply or, if there is no Specific Delivery Schedule that covers that month, the Annual Delivery Programme for that Contract Year shall apply for that month.
|
10.4
|
Changes to Schedules
|
(a)
|
The Lessee shall be entitled to make any change to the Annual Delivery Programme and/or the current Specific Delivery Schedule, by giving notice to the Operator of the proposed change, provided that such change:
|
(i)
|
does not require the operation of the FLNG Facility beyond any of the technical limits set out in this Agreement, except to the extent such technical limits are agreed to be altered by the Owner and the Lessee by way of amendment to the relevant Manuals and Protocols, with such amendments to remain under review from time to time;
|
(ii)
|
does not affect the Owner's or the Operator's ability to achieve the Performance Standards; and
|
(iii)
|
shall take into account the principles set out in Clause 10.2(e) (
Annual Delivery Programme
) and shall include updated information in respect of the matters listed in Clause 10.2(d) (
Annual Delivery Programme
).
|
(b)
|
As soon as practicable after the Operator receives notice from the Lessee under Clause 10.4(a) (
Changes to Schedules
), the Lessee and the Operator shall consult to discuss the proposed change and to agree any amendment to the Annual Delivery Programme and/or Specific Delivery Schedule provided that the Annual Delivery Programme and/or Specific Delivery Schedule complies with Clause 10.4(a)(i) to Clause 10.4(a)(iii) (
Changes to Schedules
).
|
(c)
|
The Operator may request the Lessee to amend the Annual Delivery Programme and/or the current Specific Delivery Schedule to enable the Operator to schedule additional maintenance, up to the maximum permitted amount of Scheduled Maintenance. The Lessee shall consider any such request and shall use its reasonable endeavours to accommodate the Operator's request within its schedule of Cargoes under and in accordance with any LNG SPA. For the avoidance of doubt, if the LNG Buyer does not agree to accommodate such change then the Lessee shall not be required to accommodate the Operator's request.
|
(d)
|
Upon an amendment to the Annual Delivery Programme or Specific Delivery Schedule made in accordance with this Clause 10.4 (
Changes to Schedules
), an updated Annual Delivery Programme and Specific Delivery Schedule shall be prepared by the Lessee in accordance with such amendments and provided to the Operator.
|
10.5
|
Monthly Capacity and Production Plan
|
(a)
|
The Operator shall nominate the scheduled capacity of the FLNG Facility to receive and process Feed Gas for each month in each Contract Year ("
Monthly Capacity Nomination
") by:
|
(i)
|
not less than sixty (60) Days prior to the first (1
st
) Day of the relevant month; or
|
(ii)
|
for the first month and second month of the first Contract Year, a reasonable time prior to (but in any event not later than three (3) months prior to) the Anticipated Commercial Operations Date.
|
(b)
|
Within ten (10) Days of receiving the Monthly Capacity Nomination, the Lessee may provide comments to the Operator with respect to the Monthly Capacity Nomination, including if the Lessee considers that adjustments to the Monthly Capacity Nomination are necessary to accommodate the applicable Specific Delivery Schedule and/or Annual Delivery Programme or to reflect the inventory management interface procedures set out in the Operations Manual.
|
(c)
|
The Operator shall consider the Lessee's comments (if any) with respect to the Monthly Capacity Nomination and use reasonable endeavours to take into account such comments and the current Confirmed Delivery Schedule and shall propose a draft plan for the production and offloading of LNG from the FLNG Facility for the relevant month by not less than forty-five (45) Days prior to the first (1
st
) Day of the relevant month.
|
(d)
|
The Lessee shall consider the Operator's draft plan for the production and offloading of LNG from the FLNG Facility for the relevant month and then finalise and provide to the Operator on a timely basis a binding plan for the production and loading of LNG from the FLNG Facility for the relevant month that complies with the principles set out in Clause 10.2(e) (
Annual Delivery Programme
) and the Specific Delivery Schedule for the relevant month ("
LNG Production Plan
"). The Operator shall promptly confirm receipt of the LNG Production Plan and comply with the same in accordance with the Operations Manual and the terms of this Agreement.
|
10.6
|
Daily Capacity and Report
|
(a)
|
On each Day during the Contract Year for the following Day, in accordance with the Operations Manual:
|
(i)
|
the Lessee shall give notice to the Operator setting out:
|
(A)
|
the energy quantity, volume, temperature and pressure of Feed Gas to be delivered to the Feed Gas Receipt Point; and
|
(B)
|
if applicable, the extent to which it is able to take LNG from the LNG Delivery Point and load it onto LNG Carriers; and
|
(ii)
|
the Operator shall give notice to the Lessee setting out:
|
(A)
|
the volume of Feed Gas the Operator expects to receive at the Feed Gas Receipt Point to meet the LNG Production Plan; and
|
(B)
|
the availability of the FLNG Facility to receive Feed Gas, process Feed Gas and produce and store LNG.
|
(b)
|
All Feed Gas delivered by or on behalf of the Lessee to the Feed Gas Receipt Point shall be delivered in accordance with the requirements of the Operations Manual and the terms of this Agreement.
|
(c)
|
The Operator shall deliver LNG to the LNG Delivery Point in accordance with the requirements of the Operations Manual and the terms of this Agreement.
|
(d)
|
Within eight (8) hours after the end of each Day during the Contract Year, the Operator shall deliver a report to the Lessee and the Owner with respect to such Day setting out:
|
(i)
|
the volume of Feed Gas received at the Feed Gas Receipt Point;
|
(ii)
|
the availability and capacity of the LNG Facility to receive and process Feed Gas and produce and store LNG ("
Actual Capacity Available
");
|
(iii)
|
the LNG Production;
|
(iv)
|
the volume of LNG taken at the LNG Delivery Point and offloaded onto LNG Carriers; and
|
(v)
|
such other information as is required pursuant to section 2.2 of Schedule 14 (
Operating Services
).
|
10.7
|
Monthly Performance Reports and Quarterly Meeting
|
(a)
|
Within fifteen (15) Days after the end of each month in each Contract Year, the Operator shall produce and provide to the Lessee a monthly report which consolidates the daily reports produced in the preceding month pursuant to Clause 10.6(d) (
Daily Capacity and Report
) to track performance in that relevant month against the agreed Operating Plan.
|
(b)
|
Within thirty (30) Days after the end of each quarter in each Contract Year, duly authorised representatives of the Operator and the Lessee will meet (either in person or via teleconference), discuss and conduct a performance review of the preceding quarter in accordance with section 2.2 of Schedule 14 (
Operating Services
) with a view of agreeing on any remedial measures necessary ("
Quarterly Meeting
"). The Operator and the Lessee shall use reasonable endeavours to agree a time and date for the Quarterly Meeting that is suitable to both Parties. If at any time in the reasonable opinion of the Operator or the Lessee a situation arises which requires the Operator and the Lessee to meet and discuss before the next Quarterly Meeting, the Operator and the Lessee may agree, acting reasonably, that a Quarterly Meeting takes place before the next Quarterly Meeting.
|
10.8
|
LNG Shipping Arrangements
|
10.9
|
Development of Operational Cooldown Service
|
(a)
|
if the operational cooldown services are to be provided by the FLNG Facility without any Variation, the capability of the FLNG Facility and the extent of the contractual or economic impact upon the Owner and the Operator for the appropriate period; and
|
(b)
|
if the operational cooldown services are to be provided by additional Plant or Equipment on the FLNG Facility, the need for an appropriate Variation.
|
11.
|
GAS SPECIFICATION AND LNG SPECIFICATION
|
11.1
|
General
|
(a)
|
The Owner and Operator shall ensure that the facilities and procedures for metering and testing of Feed Gas and LNG in the FLNG Facility shall comply with:
|
(i)
|
Schedule 1 (
Basis of Design
) and Schedule 2 (
Technical Specification
);
|
(ii)
|
applicable International Standards to the extent that this Agreement does not prescribe the relevant standard; and
|
(iii)
|
the requirements of applicable Laws.
|
(b)
|
The rights and obligations of the Operator under this Clause 11 (
Gas Specification and LNG Specification
) shall, during the Commissioning Period, be the rights and obligations of the Owner.
|
11.2
|
Feed Gas
|
(a)
|
The Lessee shall deliver to the Operator Feed Gas at the Feed Gas Receipt Point that complies with the Feed Gas Specification and the provisions of Clause 11.3 (
Off-Specification Feed Gas
), Clause 11.4 (
Off-Specification Feed Gas Consequences
) and the Commissioning Protocol shall apply to any failure or anticipated failure of Feed Gas delivered at the Feed Gas Receipt Point to comply with the Feed Gas Specification.
|
(b)
|
The Parties shall, from time to time, agree (acting reasonably) to adjust the Feed Gas Specification by taking into account the extent that the FLNG Facility has demonstrated the capability of processing Off-Specification Feed Gas to produce LNG that meets the LNG Specification.
|
11.3
|
Off-Specification Feed Gas
|
(a)
|
If the Lessee becomes aware that Feed Gas to be delivered at the Feed Gas Receipt Point is or is anticipated to be Off-Specification Feed Gas, then the Lessee shall give notice to the Operator as soon as is reasonably practicable in accordance with the Feed Gas Receipt and LNG Delivery Procedure detailing:
|
(i)
|
the failure or anticipated failure of the Feed Gas to meet the Feed Gas Specification including details of how the Feed Gas does not or will not comply with the Feed Gas Specification;
|
(ii)
|
the reasons for such failure (if then known); and
|
(iii)
|
the Lessee's good faith estimate of the likely duration of the ongoing failure or anticipated failure of the Feed Gas to meet the Feed Gas Specification and where appropriate the likely impact and consequences under the LNG SPA if the Operator accepts such Off-Specification Feed Gas,
|
(b)
|
If the Operator becomes aware that Feed Gas received by it at the Feed Gas Receipt Point is Off-Specification Feed Gas, then the Operator shall give notice to the Lessee as soon as is reasonably practicable of such occurrence and of its good faith estimate of the impact and consequences of accepting such Off-Specification Feed Gas.
|
(c)
|
The Operator shall use its reasonable endeavours to accept delivery of Off-Specification Feed Gas but shall be entitled to refuse to accept delivery of any quantity of Off-Specification Feed Gas where its receipt would, in the reasonable opinion of the Operator, cause damage to, or have an enduring negative impact on the performance or availability of, the FLNG Facility or cause a health, safety or environmental risk. The taking of delivery by the Operator of any quantity of Off-Specification Feed Gas shall neither vary the Feed Gas Specification nor prejudice the Operator's rights under this Clause 11.3 (Off-Specification Feed Gas) to refuse to take delivery of any subsequent quantity of Off-Specification Feed Gas and the remedies available under Clause 11.4 (
Off-Specification Feed Gas Consequences
).
|
11.4
|
Off-Specification Feed Gas Consequences
|
(a)
|
If the Operator agrees to accept delivery of Off-Specification Feed Gas in accordance with Clause 11.3(c) (
Off-Specification Feed Gas
), then:
|
(i)
|
the Operator shall promptly notify the Lessee of its reasonable estimate of the costs (if any and without prejudice to Clause 11.4(a)(ii) (
Off-Specification Feed Gas Consequences
)) related to its acceptance of Off-Specification Feed Gas and the impact that receipt of the Off-Specification Feed Gas could have on the FLNG Facility and the production of LNG; and
|
(ii)
|
the Lessee shall be liable for all reasonable and actual incremental costs, losses, damages, liabilities and expenses suffered or incurred by the Owner and/or the Operator in connection with receiving and treating such Off-Specification Feed Gas, up to an amount equal to [*****] received at the Feed Gas Receipt Point, in which case the Owner and/or the Operator (as applicable) shall invoice the Lessee (as a once off payment) and the Lessee shall pay to the Owner and/or the Operator (as applicable) such amount in accordance with Clause 14 (
Invoicing
).
|
(b)
|
If the Operator takes delivery of Off-Specification Feed Gas which the Lessee failed to give advanced notice in accordance with Clause 11.3(a) (
Off-Specification Feed Gas
) to the Operator of (or the amount of Off-Specification Feed Gas delivered to the Operator exceeds the amount in relation to which notice was provided), then:
|
(i)
|
the Operator shall promptly notify the Lessee of its reasonable estimate of the costs (if any and without prejudice to Clause 11.4(b)(ii) (
Off-Specification Feed Gas Consequences
) related to it taking delivery of such Off-Specification Feed Gas and the impact that receipt of such Off-Specification Feed Gas could have for the FLNG Facility and the production of LNG; and
|
(ii)
|
the Lessee shall be liable for all reasonable and actual incremental costs, losses, damages, liabilities and expenses suffered or incurred by the Owner and/or the Operator in connection with receiving and treating such delivery of Off-Specification Feed Gas, in which case the Owner and/or the Operator (as applicable) shall invoice the Lessee (as a once off payment) and the Lessee shall pay to the Owner and/or the Operator (as applicable) such amount in accordance with Clause 14 (
Invoicing
).
|
(c)
|
The remedies provided in Clauses 11.4(a)(ii) and 11.4(b)(ii) (
Off-Specification Feed Gas Consequences
), shall be the sole and exclusive remedies of the Owner Group in relation to the delivery of Off-Specification Feed Gas to the Feed Gas Receipt Point.
|
11.5
|
Prolonged Off-Specification Feed Gas
|
(a)
|
the Operator refuses to take delivery of any quantity of Off-Specification Feed Gas in accordance with Clause 11.3(c) (
Off-Specification Feed Gas Consequences
); and
|
(b)
|
the Lessee gives notice to the Operator and the Owner that the specification of the Feed Gas is expected to remain in non-conformity with the Feed Gas Specification for a material period of time,
|
(c)
|
the Operator and the Lessee shall promptly meet to discuss any remedial measures that may be implemented in order to address the ongoing delivery of the Off-Specification Feed Gas at the Feed Gas Receipt Point and the costs for such measures; and
|
(d)
|
if the Parties are unable to agree on remedial measures under Clause 11.5(c) (
Prolonged Off-Specification Feed Gas
), the Owner or the Lessee may request a Variation pursuant to Clause 6 (
Variations
) to address such change in the Feed Gas Specification, provided that:
|
(i)
|
without prejudice to the Lessee's right to decide to not proceed with the Variation under Clause 6.4, the Variation Cost shall be paid by the Lessee (unless otherwise agreed by the Parties, acting reasonably); and
|
(ii)
|
the Lessee shall continue to pay the Dayrate in accordance with Clause 13 (
Dayrate
) during the implementation of the Variation.
|
11.6
|
LNG Specification
|
(a)
|
The Operator shall deliver LNG to the Lessee at the LNG Delivery Point that complies with the LNG Specification and the provisions of Clause 11.7 (
Notification of Off-Specification LNG
), Clause 11.9 (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
) and Clause 11.10 (
Prolonged Off-Specification LNG
) shall apply in the event of any failure of LNG delivered at the LNG Delivery Point to comply with the LNG Specification.
|
(b)
|
The Operator's obligation to deliver LNG within specification under Clause 11.6(a) (
LNG Specification
)
shall be relieved to the extent the Operator is unable to redeliver LNG within specification at the LNG Delivery Point as a result of the Lessee delivering Off-Specification Feed Gas at the Feed Gas Receipt Point.
|
11.7
|
Notification of Off-Specification LNG
|
(a)
|
If the Operator becomes aware that LNG to be delivered at the LNG Delivery Point is or is anticipated to be Off-Specification LNG for reasons other than the receipt of Off-Specification Feed Gas, the Operator shall promptly give notice to the Lessee setting out:
|
(i)
|
the failure or anticipated failure of the Off-Specification LNG to comply with the LNG Specification, including details of how the LNG does not or will not comply with the LNG Specification;
|
(ii)
|
the reasons for such failure (if then known);
|
(iii)
|
the Operator's good faith estimate of the likely duration and quantity of the ongoing delivery of Off-Specification LNG that will be delivered at the LNG Delivery Point; and
|
(iv)
|
such other information as reasonably requested by the Lessee.
|
(b)
|
If the Lessee becomes aware that LNG received at the LNG Delivery Point is Off-Specification LNG for reasons other than the receipt of Off-Specification Feed Gas, the Lessee shall promptly give notice to the Operator of such Off-Specification LNG, including details of how the LNG does not comply with the LNG Specification.
|
(c)
|
Upon receipt of notice from the Operator in accordance with Clause 11.7(a) (
Notification of Off-Specification LNG
) or upon becoming aware that LNG received at the LNG Delivery Point is Off-Specification LNG for reasons other than the receipt of Off-Specification Feed Gas:
|
(i)
|
the Lessee shall request that the Lessee Group accepts, or request that the LNG Buyer accepts, the Off-Specification LNG, provided that the Lessee Group shall be entitled to refuse to accept the Off-Specification LNG if:
|
(A)
|
the LNG Buyer has refused to accept the LNG; or
|
(B)
|
the Lessee, acting reasonably, considers that the incremental costs, losses, damages, liabilities and expenses that will be suffered or incurred by the Lessee Group in accepting and disposing of the Off-Specification LNG will exceed an [*****];
|
(ii)
|
if the Lessee Group or the LNG Buyer accepts the Off-Specification LNG, the Lessee shall promptly give notice to the Operator setting out:
|
(A)
|
whether the LNG has been accepted by the LNG Buyer or by a member of the Lessee Group;
|
(B)
|
its good faith estimate of the incremental costs, losses, damages, liabilities and expenses that will be suffered or incurred:
|
(1)
|
if the Off-Specification LNG has been accepted by the LNG Buyer, by the Lessee Group in connection with the delivery of Off-Specification LNG to the LNG Buyer in accordance with the LNG SPA; and
|
(2)
|
if the Off-Specification LNG has been accepted by a member of the Lessee Group, in accepting and disposing of the Off-Specification LNG,
|
11.8
|
Off-Specification LNG from Off-Specification Feed Gas
|
11.9
|
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
|
(a)
|
This Clause 11.9 (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
) shall only apply if Off-Specification LNG is delivered and the cause of such Off-Specification LNG was not receipt of Off-Specification Feed Gas.
|
(b)
|
If, prior to delivery of the Off-Specification LNG, the Lessee provides notice to the Operator that the LNG Buyer will accept the Off-Specification LNG in accordance with Clause 11.7(c) (
Notification of Off-Specification LNG
):
|
(i)
|
the Owner shall be liable for:
|
(A)
|
all reasonable and actual incremental costs, losses, damages, liabilities and expenses suffered or incurred by the Lessee Group under the LNG SPA as a result of the LNG being Off-Specification LNG, provided that such amounts shall not exceed an amount equal to [*****]; and
|
(B)
|
if a member of the Lessee Group has sold the Off-Specification LNG as a Reasonable and Prudent Operator at a discounted price compared to the contract price that applies under the applicable LNG SPA for LNG that meets the LNG Specification, an amount equal to the difference between:
|
(1)
|
the value of the Cargo under the applicable LNG SPA had such LNG met the LNG Specification; and
|
(2)
|
the FOB price actually received by that member of the Lessee Group in relation to the relevant Cargo (which may be zero (0) or negative),
|
(ii)
|
Clause 13.10 (
LNG Delivery Performance
) shall apply as if the Off-Specification LNG were LNG that meets the LNG Specification to the extent that the Operator fails to deliver a Cargo of Off-Specification LNG to an LNG Carrier within the permitted period set out in the relevant Confirmed Delivery Schedule.
|
(c)
|
If, prior to delivery of the Off-Specification LNG, the Lessee provides notice to the Operator that a member of the Lessee Group will accept and dispose of the Off-Specification LNG in accordance with Clause 11.7(c) (
Notification of Off-Specification LNG
):
|
(i)
|
the Parties shall discuss the compensation nominated by the Lessee that is to be paid by the Owner to the Lessee for all reasonable and actual costs, losses, damages, liabilities and expenses suffered or incurred by the Lessee Group as a direct result of the acceptance and disposal of the Off-Specification LNG (including under the LNG SPA), provided that if the amount nominated by the Lessee pursuant to this Clause 11.9(c)(i) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
) is:
|
(A)
|
less than or equal to [*****] for disposal by such Lessee Group member, then the Owner shall agree to such compensation nominated by the Lessee pursuant to Clause 11.9(c)(i) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
), in which case the Lessee shall invoice the Owner (as a once off payment) and the Owner shall pay to the Lessee such amount in accordance with Clause 14 (
Invoicing
); or
|
(B)
|
greater than [*****] for disposal by such Lessee Group member, then the Operator shall (at its discretion) either notify the Lessee that the Owner will:
|
(1)
|
dispose of, or procure the disposal of, the Off-Specification LNG in accordance with Clause 11.9(d) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
); or
|
(2)
|
pay compensation to the Lessee in connection with the disposal of such Off-Specification LNG for the amount nominated by the Lessee pursuant to Clause 11.9(c)(i) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
) as a lump sum payment, in which case the Lessee shall invoice the Owner (as a once off payment) and the Owner shall pay to the Lessee such amount in accordance with Clause 14 (
Invoicing
); and
|
(ii)
|
if the Owner agrees to pay the compensation nominated by the Lessee pursuant to Clauses 11.9(c)(i)(A) or 11.9(c)(i)(B)(2) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
), then
Clause 13.10 (
LNG Delivery Performance
) shall apply as if the Off-Specification LNG were LNG that meets the LNG Specification to the extent that the Owner fails to deliver a Cargo of Off-Specification LNG to an LNG Carrier within the permitted period set out in the relevant Confirmed Delivery Schedule.
|
(d)
|
If, prior to the delivery of the Off-Specification LNG, the Lessee provides notice to the Operator that the LNG Buyer will not take the Off-Specification LNG under its LNG SPA and that the Lessee Group will not dispose of the Off-Specification LNG (including where the Owner has not agreed to the compensation nominated by the Lessee under Clause 11.9(c)(i) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
)):
|
(i)
|
the Owner must dispose of, or procure the disposal of, the Off-Specification LNG as soon as reasonably practicable and, in doing so, shall seek to minimise any disruption to the next Cargo or the amount of LNG storage available and if the Owner is to dispose of such Off‑Specification LNG, the Owner shall give notice to the Lessee of how it will dispose of such Off-Specification LNG, and the Lessee shall use reasonable endeavours to procure that the Co-venturers take such steps as may be reasonably necessary to enable the Owner to comply with its obligations under this Clause 11.9(d)(i) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
);
|
(ii)
|
the quantity of such Off-Specification LNG shall be deemed to have not been produced and offloaded from the FLNG Facility for the purposes of Clause 13.8 (
Availability and Capacity Performance
); and
|
(iii)
|
Clause 13.10 (
LNG Delivery Performance
) shall apply.
|
(e)
|
If Off-Specification LNG is delivered to an LNG Buyer without notice (or the amount of Off-Specification LNG delivered to an LNG Buyer exceeds the amount in relation to which notice was provided):
|
(i)
|
if the LNG Buyer confirms it will accept the Off-Specification LNG that has been delivered:
|
(A)
|
the Owner shall be liable for:
|
(1)
|
all reasonable and actual incremental costs, losses, damages, liabilities and expenses suffered or incurred by the Lessee Group under the LNG SPA as a result of the LNG being Off-Specification LNG; and
|
(2)
|
if a member of the Lessee Group has sold the Off-Specification LNG acting as a Reasonable and Prudent Operator at a discounted price compared to the contract price that applies under the applicable LNG SPA for LNG that meets the LNG Specification, an amount equal to the difference between:
|
(aa)
|
the value of the Cargo under the applicable LNG SPA had such LNG met the LNG Specification; and
|
(bb)
|
the FOB price actually received by such member of the Lessee Group in relation to the relevant Cargo (which may be zero or negative),
|
(B)
|
Clause 13.10 (
LNG Delivery Performance
) shall apply as if the Off-Specification LNG were LNG that meets the LNG Specification to the extent that the Owner fails to deliver a Cargo of Off-Specification LNG to the LNG Carrier within the permitted period set out in the Confirmed Delivery Schedule; or
|
(ii)
|
if the Lessee provides notice to the Operator that the LNG Buyer has rejected the Off-Specification LNG delivered to it under its LNG SPA, but that a member of the Lessee Group is prepared to dispose of the Off-Specification LNG:
|
(A)
|
the Parties shall discuss the compensation nominated by the Lessee that is to be paid by the Owner to the Lessee for all reasonable and actual costs, losses, damages, liabilities and expenses suffered or incurred by the Lessee Group as a direct result of the acceptance and disposal of the Off-Specification LNG (including under the LNG SPA), and if the amount nominated by the Lessee pursuant to this Clause 11.9(e)(ii)(A)(
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
) is:
|
(1)
|
less than or equal to [*****], then the Owner shall agree to such compensation nominated by the Lessee pursuant to Clause 11.9(e)(ii)(A) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
), in which case the Lessee shall invoice the Owner (as a once off payment) and the Owner shall pay to the Lessee such amount in accordance with Clause 14 (
Invoicing
); or
|
(2)
|
greater than [*****], then the Operator shall (at its discretion) either notify the Lessee that the Owner will:
|
(aa)
|
dispose of, or procure the disposal of, the Off-Specification LNG in accordance with Clause 11.9(e)(iii) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
); or
|
(bb)
|
pay compensation to the Lessee in connection with the disposal of such Off-Specification LNG for the amount nominated by the Lessee pursuant to Clause 11.9(e)(ii)(A) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
) as a lump sum payment, in which case the Lessee shall invoice the Owner (as a once off payment) and the Owner shall pay to the Lessee such amount in accordance with Clause 14 (
Invoicing
); and
|
(B)
|
if the Owner agrees to pay the compensation nominated by the Lessee pursuant to Clauses 11.9(e)(ii)(A)(1) or 11.9(e)(ii)(A)(2)(bb) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
), then Clause 13.10 (
LNG Delivery Performance
) shall apply as if the Off-Specification LNG were LNG that meets the LNG Specification to the extent that the Operator fails to deliver a Cargo of Off-Specification LNG to an LNG Carrier within the permitted period set out in the relevant Confirmed Delivery Schedule; or
|
(iii)
|
if the Lessee provides notice to the Operator that the LNG Buyer has rejected the Off-Specification LNG delivered to it under its LNG SPA and the Lessee is not prepared to dispose of the Off-Specification LNG (including where the Owner has not agreed to the compensation nominated by the Lessee under Clause 11.9(e)(ii)(A) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
)):
|
(A)
|
the Owner must dispose of, or procure the disposal of, the Off-Specification LNG as soon as reasonably practicable and, in doing so, shall seek to minimise any disruption to the next Cargo or the amount of LNG storage available, and the Lessee shall use reasonable endeavours to procure that the Co-venturers take such steps as may be reasonably necessary to enable the Owner to comply with its obligations under this Clause 11.9(e)(iii)(A) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
);
|
(B)
|
the quantity of such Off-Specification LNG shall be deemed to have not been produced and offloaded from the FLNG Facility for the purposes of Clause 13.8 (
Availability and Capacity Performance
);
|
(C)
|
Clause 13.10 (
LNG Delivery Performance
) shall apply as if the quantity of Off-Specification LNG were not produced and offloaded from the FLNG Facility; and
|
(D)
|
the Owner shall be liable for all reasonable and actual costs, losses, damages, liabilities and expenses suffered or incurred by the Lessee Group under the LNG SPA as a result of the LNG being Off-Specification LNG, in which case the Lessee shall invoice the Owner (as a once off payment) and the Owner shall pay to the Lessee such amount in accordance with Clause 14 (
Invoicing
).
|
(f)
|
The Parties agree that:
|
(i)
|
the rights of recovery under this Clause 11.9 (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
); and
|
(ii)
|
any reduction in the Normal Dayrate or Adjusted Dayrate (as applicable) in accordance with Clause 13.10 (
LNG Delivery Performance
),
|
11.10
|
Prolonged Off-Specification LNG
|
(a)
|
the Operator and the Lessee shall meet as soon as is reasonably practicable to discuss any remedial measures at the Owner's cost, risk and expense that could be implemented in order to address the delivery of Off-Specification LNG and the costs for such measures; and
|
(b)
|
either Party shall be entitled to request a Variation pursuant to Clause 6 (
Variations
) to address the non-conformity with the LNG Specification at the Owner's cost.
|
12.
|
PERFORMANCE STANDARDS
|
12.1
|
Performance Standards
|
(a)
|
the FLNG Facility shall be available and have the capacity to accept Feed Gas, produce LNG and deliver LNG in accordance with Schedule 1 (
Basis of Design
) in order to achieve the Base Capacity or Pre-Appraisal Base Capacity (as applicable) ("
Availability and Capacity Performance Standard
");
|
(b)
|
the amount of Retainage shall be equal to or less than the Feed Gas Usage Allowance ("
Feed Gas Usage Performance Standard
");
|
(c)
|
subject to receiving Feed Gas that meets the Feed Gas Specification, the LNG produced by the FLNG Facility shall comply with the LNG Specification ("
LNG Specification Performance Standard
");
|
(d)
|
the delivery of LNG by the Operator at the LNG Delivery Point shall enable the Lessee to load LNG onto LNG Carriers in accordance with Schedule 1 (
Basis of Design
) to enable the Lessee to comply with the Confirmed Delivery Schedule ("
LNG Delivery Performance Standard
");
|
(e)
|
the emissions from the FLNG Facility shall comply with Schedule 1 (
Basis of Design
) as reasonably adjusted to recognise the continued optimisation of the FLNG Facility from the Commercial Operations Date until the date the Acceptance Appraisals are passed in accordance with Clause 7.14 (
Acceptance Appraisals
) ("
Emissions Performance Standard
"); and
|
(f)
|
the HSSE performance of the FLNG Facility, and of the Operator in performing the Operating Services, shall comply with Schedule 8 (
HSSE Requirements
) ("
HSSE Performance Standard
"),
|
12.2
|
Failure to achieve Performance Standards
|
12.3
|
Relationship between Owner and Operator
|
12.4
|
Relief from obligation to achieve Performance Standards
|
(a)
|
any act or omission of any member of the Lessee Group (other than in the exercise of a right or obligation under this Agreement), any member of any Other Contractor Group or any LNG Buyer that prevents the Owner or the Operator from achieving such Performance Standard; or
|
(b)
|
the delivery by the Lessee of Off-Specification Feed Gas.
|
12.5
|
Adjustment of Base Capacity
|
(a)
|
The Base Capacity shall be adjusted in accordance with this Clause 12.5 (
Adjustment of Base Capacity
) to compensate for the differences between the actual annual average ambient conditions as measured at the location of the LNG Hub Facilities and the reference ambient conditions set out in Table 2 (
Nameplate Capacity conditions
) of Schedule 3 (
Acceptance Tests and Acceptance Appraisals
) using the Black & Veatch process model using (to the extent practicable) the same computer simulation software, methodology and principles used for the original FLNG Facility design, on:
|
(i)
|
the Commercial Operations Date (the "
First Base Capacity Adjustment
"); and
|
(ii)
|
every three (3) years thereafter (a "
Subsequent Base Capacity Adjustment
"),
|
(b)
|
The Operator and the Lessee shall agree the applicable Base Capacity Adjustment no later than sixty (60) Days prior to the date of the relevant Base Capacity Adjustment.
|
(c)
|
If the Operator and the Lessee fail to agree the applicable Base Capacity Adjustment pursuant to Clause 12.5(b) (
Adjustment of Base Capacity
), then the matter shall be resolved in accordance with Clause 24.4 (
Expert Determination
).
|
(d)
|
For the purpose of calculating the Base Capacity Adjustment, the Lessee shall collect, and continue to collect, adequate and relevant ambient condition data at the LNG Hub Facilities appropriately from the date of this Agreement.
|
(e)
|
Any dispute as to whether the results of the Black & Veatch process model properly reflects the technical compensation required for the differences in the ambient conditions shall be a Technical Dispute capable of resolution under Clause 24.3(b) (
Senior Management
).
|
13.
|
DAYRATE
|
13.1
|
Elements of the Dayrate
|
(a)
|
The Dayrate will comprise:
|
(i)
|
a capital element (the "
CE
"); and
|
(ii)
|
an operating element (the "
OE
").
|
(b)
|
The CE shall be equal to the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable) as adjusted in accordance with this Clause 13 (
Dayrate
) [*****].
|
(c)
|
The OE shall:
|
(i)
|
compensate the actual reasonable and documented operating costs and expenses incurred by the Operator in performing the Operating Services in accordance with the then applicable Work Programme and Budget, and be expressed as the fraction of such costs and expenses in the then applicable Work Programme and Budget evenly allocated to each Day of the Contract Year; provided that any amounts paid or to be paid by the Operator to the Lessee as a result of any Claim by the Lessee against the Operator under or in connection with this Agreement (including pursuant to Clause 11 (
Gas Specification and LNG Specification
)) shall not be included in the OE;
|
(ii)
|
be payable to the Operator by the Lessee for each Day during the Lease Period unless the Owner is required to pay the OE pursuant to:
|
(A)
|
Clause 3.4(b) (
Operator's General Obligations
); or
|
(B)
|
Clause 13.11 (
Emissions and HSSE Performance
); and
|
(iii)
|
be subject to a reduction in accordance with Clause 13.1(d) (
Elements of the Dayrate
).
|
(d)
|
During an FM Event, the Operator shall use reasonable endeavours to reduce its operating costs and, if the Operator is able to reduce its operating costs, it shall notify the Lessee of the amount by which its operating costs have been reduced and the reduced OE that is to be payable by the Lessee during the continuation of the FM Event.
|
(e)
|
Except as is agreed or determined in accordance with Clause 6 (
Variations
), the Nominal Set Rate and Adjusted Nominal Set Rate shall not otherwise be subject to escalation during the Lease Period.
|
13.2
|
Obligation to pay Dayrate
|
(a)
|
the CE to the Owner, as calculated in accordance with this Clause 13 (
Dayrate
); and
|
(b)
|
the OE to the Operator, as set out in the applicable Work Programme and Budget or as notified by the Operator to the Lessee in accordance with Clause 13.1(d) (
Elements of the Dayrate
), unless the Lessee is not liable to pay such amount in accordance with Clauses 3.4(b) (
Operator's General Obligations
) or 13.11 (
Emissions and HSSE Performance
).
|
13.3
|
Normal Dayrate
|
(a)
|
one hundred percent (100%) of the CE; and
|
(b)
|
one hundred percent (100%) of the OE.
|
13.4
|
Adjusted Dayrate
|
(a)
|
The "
Adjusted Dayrate
" shall be an amount equal to the sum of:
|
(i)
|
the CE, as adjusted on an aggregated basis in accordance with Clauses 13.8 (
Availability and Capacity Performance
), 13.9 (
Feed Gas Usage Performance
) and 13.10 (
LNG Delivery Performance
); and
|
(ii)
|
one hundred percent (100%) of the OE, unless the Lessee is not liable to pay such amount in accordance with Clauses 3.4(b) (
Operator's General Obligations
) or
13.11 (
Emissions and HSSE Performance
).
|
(b)
|
The Adjusted Dayrate shall apply if:
|
(i)
|
the CE is required to be adjusted in accordance with Clauses 13.8 (
Availability and Capacity Performance
), 13.9 (
Feed Gas Usage Performance
) or 13.10 (
LNG Delivery Performance
); and/or
|
(ii)
|
the OE is required to be adjusted in accordance with Clauses 3.4(b) (
Operator's General Obligations
) or
13.11 (
Emissions and HSSE Performance
).
|
(c)
|
Notwithstanding any other provision of this Agreement, the adjustments pursuant to Clauses 13.8 (
Availability and Capacity Performance
) and 13.10 (
LNG Delivery Performance
) shall never reduce the CE component of the Adjusted Dayrate for a Billing Period to less than USD zero ($0).
|
13.5
|
Zero Capital Dayrate
|
(a)
|
The "
Zero Capital Dayrate
" shall be an amount equal to the sum of:
|
(i)
|
the CE reduced to USD zero ($0) per Day; and
|
(ii)
|
one hundred percent (100%) of the OE, unless the Lessee is not liable to pay such amount in accordance with Clauses 3.4(b) (
Operator's General Obligations
) or
Clause 13.11 (
Emissions and HSSE Performance
).
|
(b)
|
The Zero Capital Dayrate shall apply:
|
(i)
|
if circumstances exist such that Lessee would be entitled to terminate this Agreement pursuant to Clauses 23.2(a), 23.2(b), 23.2(c), 23.2(d) (
Termination by the Lessee
) or Clauses 23.3(e)(i), 23.3(e)(ii) or 23.3(e)(iii) (
Termination for Owner or Operator Default
), for each Day on and from the date such termination right could have been exercised until the date the breach is remedied in full; or
|
(ii)
|
if the Capacity Available is less than or equal to [*****] of the Base Capacity or Pre-Appraisal Base Capacity (as applicable) on average for [*****] for reasons other than the occurrence of an FM Event or as a result of Scheduled Maintenance, on and from the Day such threshold is first reached until the Capacity Available is equal to or greater than seventy-five percent (75%) of the Base Capacity or Pre-Appraisal Base Capacity (as applicable) for a subsequent rolling period of thirty (30) Days.
|
13.6
|
FM Event Dayrate
|
(a)
|
The "
FM Event Dayrate
" shall be an amount equal to the sum of:
|
(i)
|
[*****] of the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable); and
|
(ii)
|
one hundred percent (100%) of the OE, subject to reduction in accordance with Clause 13.1(d) (
Elements of the Dayrate
). If immediately prior to the commencement of the FM Event the Lessee was not liable to pay such amount in accordance with Clause 3.4(b) (
Operator's General Obligations
) or Clause 13.11 (
Emissions and HSSE Performance
), the provisions of Clauses 3.4(b) (
Operator's General Obligations
) or 13.11 (
Emissions and HSSE Performance
) (as applicable) shall continue to apply until such time as the deficiency is remedied in accordance with Clauses 3.4(b) (
Operator's General Obligations
) or 13.11 (
Emissions and HSSE Performance
) (as applicable).
|
(b)
|
The FM Event Dayrate shall apply if Clause 15.2 (
Force Majeure
) applies.
|
13.7
|
Mobilisation and Demobilisation
|
(a)
|
as included in the dayrate payable under Clause 7.12(d) (
Commissioning Period
); and
|
(b)
|
where the FLNG Facility is sublet or relocated under Clause 4.3(b) (
Sub-letting the FLNG Facility
), provided such costs are included in the agreed Work Programme and Budget.
|
13.8
|
Availability and Capacity Performance
|
(a)
|
The extent to which the Availability and Capacity Performance Standard has been achieved on any given Day shall be determined by reference to:
|
(i)
|
the Capacity Available for the Day (expressed in MTPA/Day);
|
(ii)
|
the amount of the LNG Production for the Day (expressed in MTPA/Day); and
|
(iii)
|
the Base Capacity or Pre-Appraisal Base Capacity (as applicable),
|
(b)
|
The "
Capacity Available
" shall be an amount equal to the LNG Production (expressed in MTPA/Day), if:
|
(i)
|
the LNG Production for a Day is equal to or greater than the Base Capacity or Pre-Appraisal Base Capacity (as applicable); or
|
(ii)
|
the LNG Production for a Day is less than the Base Capacity or Pre-Appraisal Base Capacity (as applicable) as a result of the Owner's or the Operator's failure to take delivery of Feed Gas at the Feed Gas Receipt Point and/or failure to produce and store LNG,
|
(c)
|
If the LNG Production for a Day is less than the Base Capacity or Pre-Appraisal Base Capacity (as applicable) as a result of:
|
(i)
|
the Lessee's failure to deliver sufficient Feed Gas that meets the Feed Gas Specification to the Feed Gas Receipt Point;
|
(ii)
|
an LNG Buyer Failure; or
|
(iii)
|
a Suspension for Convenience during the Lease Period in accordance with Clause 23.1(b) (
Suspension by Lessee
),
|
(d)
|
The CE shall be adjusted as follows:
|
(i)
|
When Clause 13.8(b) (
Availability and Capacity Performance
) applies, if the Capacity Available for a Day is equal to or greater than the Base Capacity or Pre-Appraisal Base Capacity (as applicable), and the LNG Production for the Day is equal to or greater than the Base Capacity or Pre-Appraisal Base Capacity (as applicable), the CE to reflect the achievement of the Availability and Capacity Performance Standard for such Day shall be an amount determined as follows:
|
NSR
|
is the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable);
|
LP
|
is the amount of the LNG Production for the Day (expressed in MTPA/Day); and
|
BC
|
is the Base Capacity or Pre-Appraisal Base Capacity (as applicable) of the FLNG Facility for the Day (expressed in MTPA/Day).
|
(ii)
|
When Clause 13.8(b) (
Availability and Capacity Performance
) applies, subject to Clause 13.5 (
Zero Capital Dayrate
), if the Capacity Available for the Day is less than the Base Capacity or Pre-Appraisal Base Capacity (as applicable) as a result of the Owner's or the Operator's failure to take delivery of Feed Gas at the Feed Gas Receipt Point and/or failure to produce and store LNG, then the CE to reflect the achievement of the Availability and Capacity Performance Standard for such Day shall be an amount determined as follows:
|
NSR
|
is the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable);
|
LP
|
is the amount of the LNG Production for the Day (expressed in MTPA/Day); and
|
BC
|
is the Base Capacity or Pre-Appraisal Base Capacity (as applicable) of the FLNG Facility for the Day (expressed in MTPA/Day).
|
(iii)
|
When Clause 13.8(c) (
Availability and Capacity Performance
) applies, the CE to reflect the achievement of the Availability and Capacity Performance Standard for such Day shall be:
|
(A)
|
for each Day until such time as there have been three hundred sixty five (365) Days in which the Capacity Available was determined in accordance with Clauses 13.8(b)(i) or 13.8(b)(ii) (
Availability and Capacity Performance
), one hundred and five percent (105%) of the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable); and
|
(B)
|
for each other Day during the Lease Period, an amount determined as follows:
|
NSR
|
is the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable);
|
CA
|
is the Capacity Available for the Day (expressed in MTPA/Day) calculated as the arithmetic average of the Capacity Available for each Day on which the Capacity Available was able to be determined in accordance with Clauses 13.8(b)(i) or 13.8(b)(ii) (
Availability and Capacity Performance
) during the three hundred sixty five (365) Days immediately prior to the relevant Day; and
|
BC
|
is the Base Capacity or Pre-Appraisal Base Capacity (as applicable) of the FLNG Facility for the Day (expressed in MTPA/Day).
|
(e)
|
There shall be a reconciliation of any overpayment or underpayment of the CE paid pursuant to Clause 13.8(d)(iii)(A) (
Availability and Capacity Performance
) relative to the amount of CE that would have been payable had Clause 13.8(d)(iii)(B) (
Availability and Capacity Performance
) applied with respect to LNG Production for the Day in question in accordance with Clause 13.8(c) (
Availability and Capacity Performance
) once there have been three hundred sixty five (365) Days in which the Capacity Available was determined in accordance with Clauses 13.8(b)(i) or 13.8(b)(ii) (
Availability and Capacity Performance
), following which the Owner or Lessee (as applicable) shall invoice the other (as a once off payment) and the Owner or Lessee (as applicable) shall pay to the other such reconciliation amount in accordance with Clause 14 (
Invoicing
).
|
(f)
|
For the purposes of this Clause 13.8 (
Availability and Capacity Performance
), any periods of maintenance of the FLNG Facility shall be included in determining the Capacity Available.
|
(g)
|
The Parties recognise that:
|
(i)
|
it may be appropriate to incorporate a suitable reconciliation process to be applied over a yet to be agreed LNG Production period to be applied to and reconcile day-to-day payments of CE with longer term actual project performance;
|
(ii)
|
such reconciliation process will seek to preserve the fundamental principles upon which CE is payable over the extended period taking into account the actual day-to-day performance and impacts of the day-to-day performance regime; and
|
(iii)
|
the principles to be adhered to over the longer production period (which may be for up to one (1) Contact Year) shall include:
|
(A)
|
CE payment above one hundred percent (100%) of the Availability and Capacity Performance Standard is made to the extent that LNG Production was over one hundred percent (100%) of the Base Capacity or Pre-Appraisal Base Capacity (as applicable);
|
(B)
|
where LNG Production is less than the Base Capacity as a result of any action or inaction of any member of the Lessee Group, the CE is determined by the FLNG Facility's Capacity Available (which shall not exceed one hundred percent (100%) of Base Capacity or Pre-Appraisal Base Capacity (as applicable));
|
(C)
|
where LNG Production is less than Base Capacity or Pre-Appraisal Base Capacity (as applicable) as a result of any action or inaction of any member of the Owner Group, the CE is determined by the level of LNG Production (which shall not exceed one hundred percent (100%) of Base Capacity or Pre-Appraisal Base Capacity (as applicable));
|
(D)
|
payments under Clause 13.10 (
LNG Delivery Performance
) shall not be recoverable under the reconciliation process; and
|
(E)
|
reprofiling of production within a Cargo production period shall not constitute use of capacity above Base Capacity or Pre-Appraisal Base Capacity (as applicable).
|
13.9
|
Feed Gas Usage Performance
|
(a)
|
The amount of Retainage shall exclude any additional amount of Feed Gas necessarily consumed or lost by the Operator to the extent caused by or attributable to:
|
(i)
|
an FM Event;
|
(ii)
|
any Feed Gas being Off-Specification Feed Gas; or
|
(iii)
|
any member of the Lessee Group.
|
(b)
|
If the amount of Retainage exceeds the Excess Feed Gas Allowance, the CE shall be reduced in accordance with Clause 13.9(d) or Clause 13.9(e) (
Feed Gas Usage Performance
) (as applicable).
|
(c)
|
The extent to which the Feed Gas Usage Performance Standard has been achieved shall be determined in accordance with Schedule 7 (
Feed Gas Usage Allowance
).
|
(d)
|
For the first twelve (12) Billing Periods after the Commercial Operations Date, at the end of each such Billing Period if the aggregate amount of Retainage for the Billing Period exceeds the aggregate amount of the Excess Feed Gas Allowance for such Billing Period, the CE for each Day during the immediately following Billing Period shall be reduced by an amount in USD determined as follows:
|
B
|
means the amount (in mmBtu) by which the aggregate amount of Retainage for the Billing Period exceeds the aggregate amount of the Excess Feed Gas Allowance for such Billing Period; and
|
C
|
means the number of Days in the immediately following Billing Period.
|
(e)
|
For each Billing Period after the twelfth (12th) Billing Period ("
BP
m
"), if the aggregate amount of Retainage for the twelve (12) Billing Periods immediately preceding BP
m
exceeds the aggregate amount of the Excess Feed Gas Allowance for such Billing Periods, the CE for each Day during the immediately following Billing Period shall be reduced by an amount in USD determined as follows:
|
B
|
means one twelfth of (1/12th) of the amount (in mmBtu) by which the aggregate amount of Retainage for the twelve (12) Billing Periods immediately preceding BP
m
exceeds the aggregate amount of the Excess Feed Gas Allowance for such Billing Periods; and
|
C
|
the number of Days in the Billing Period immediately following the BP
m
.
|
13.10
|
LNG Delivery Performance
|
(a)
|
If the Lessee is not able to complete loading a Cargo onto an LNG Carrier within the permitted period set out in the relevant Confirmed Delivery Schedule and the Lessee's failure has not been caused by:
|
(i)
|
the Lessee failing to perform its obligations under this Agreement to the Lessee's Required Standard;
|
(ii)
|
the Lessee's failure to provide sufficient Feed Gas or Feed Gas that meets the Feed Gas Specification; or
|
(iii)
|
an FM Event,
|
(iv)
|
the Demurrage Costs, calculated by reference to the Allowed Laytime in the relevant Confirmed Delivery Schedule; and
|
(v)
|
[*****] of the difference between:
|
(A)
|
the volume of LNG scheduled to be delivered to the LNG Carrier, as set out in the relevant Confirmed Delivery Schedule in respect of that Cargo; and
|
(B)
|
the volume of LNG actually delivered to the LNG Carrier in respect of that Cargo,
|
(b)
|
Any reduction in the CE for an LNG Shortfall Reduction pursuant to Clause 13.10(a) (
LNG Delivery Performance
) shall only apply:
|
(i)
|
if the Lessee procures that the Lessee Group uses reasonable endeavours to mitigate any LNG Shortfall Reduction (including by incurring more demurrage in order to minimise the difference between the amounts in Clauses 13.10(a)(v)(A) and 13.10(a)(v)(B) (
LNG Delivery Performance
)) (for the avoidance of doubt, any refusal by the LNG Buyer to accommodate the Lessee Group's requests shall not of itself be grounds for the Owner to consider that the Lessee Group has not used reasonable endeavours); and
|
(ii)
|
if the Lessee Group has suffered or incurred actual costs, losses, damages, liabilities and expenses under the LNG SPA as a result of the Lessee not being able to complete loading a Cargo onto an LNG Carrier within the permitted period set out in the relevant Confirmed Delivery Schedule.
|
(c)
|
The maximum amount of any reduction in the amount of Dayrate otherwise payable by the Lessee on account of Clause 13.10(a) (
LNG Delivery Performance
) shall, subject to Clause 13.4 (
Adjusted Dayrate
), not in any circumstances exceed:
|
(i)
|
in respect of each Cargo, [*****] in aggregate;
|
(ii)
|
during any given Contract Year, [*****] in aggregate; and
|
(iii)
|
during the Lease Period, [*****] in aggregate.
|
13.11
|
Emissions and HSSE Performance
|
(a)
|
If the provision of a part (or all) of the Operating Services is deficient relative to the Emissions Performance Standard or the HSSE Performance Standard (as applicable), and such deficiency is notified by the Lessee to the Operator, then:
|
(i)
|
the Operator shall remedy the deficiency to the Emissions Performance Standard or the HSSE Performance Standard (as applicable) as soon as practicable and in any event within thirty (30) Days of receiving notice (or such other period as reasonably agreed by the Parties); and
|
(ii)
|
if the Operator has not remedied the deficiency to the Emissions Performance Standard or the HSSE Performance Standard (as applicable) within thirty (30) Days of receiving notice (or such other period as reasonably agreed by the Parties), then the Owner shall pay the OE until such time as the deficiency is remedied (and the Lessee shall not be liable to pay the OE during any such period that the Owner is required to pay the OE).
|
(b)
|
The Owner shall be responsible for, and shall indemnify, Defend and hold the Lessee Group harmless from and against, any and all Taxes, fines, penalties and/or interest, assessed or levied by an appropriate Government Authority as a result of, and to the extent that, the FLNG Facility's failure to achieve required emissions standards under applicable Law:
|
(i)
|
gave rise to the incident that is the subject of the Tax, fine, penalty and/or interest; and
|
(ii)
|
was not caused by an act or omission of the Lessee Group, including the provision of Off-Specification Feed Gas by the Lessee.
|
14.
|
INVOICING
|
14.1
|
Dayrate Invoices
|
(a)
|
Within five (5) Business Days after the end of each Billing Period, the Owner and the Operator shall each submit to the Lessee an invoice setting out:
|
(i)
|
the amount to be paid by the Lessee to each of the Owner and the Operator in respect of the Billing Period for which the invoice is submitted; and
|
(ii)
|
the basis for the calculation of the amount to be paid by the Lessee to the Owner and the Operator in respect of the Billing Period for which the invoice is submitted, including:
|
(A)
|
for each Billing Period prior to the Commercial Operations Date, the amount determined in accordance with Clauses 7.9(e) (
Target Connection Date
), 7.12(d) and 7.12(f) (
Commissioning Period
), 7.17(a) (
Bullet Payment
) and 15.5(a) (
Prolonged Project Delay FM
); and
|
(B)
|
for each Billing Period after the Commercial Operations Date, the applicable Dayrates that were charged for each Day in such relevant Billing Period, including details of any adjustment to the applicable Dayrates that were charged pursuant to Clauses 3.4(b) (
Operator's General Obligations
), 7.14(f)(i) (
Acceptance Appraisals
), 13.8 (
Availability and Capacity Performance
), 13.9 (
Feed Gas Usage Performance
), 13.10 (
LNG Delivery Performance
) and/or 13.11 (
Emissions and HSSE Performance
),
|
(b)
|
Invoices prepared under Clause 14.1(a) (
Dayrate Invoices
) and Clause 14.4 (
Other Amounts
)
shall be prepared in accordance with the Accounting Protocol.
|
14.2
|
Payment
|
(a)
|
Subject to this Clause 14.2(c) (
Payment
), Clause 14.3 (
Incomplete Invoices
), Clause 14.5 (
Disputed Invoices
), Clause 14.7(b) (
Audit, Records and Financial Reporting
), Clause 17.6(c) (
Liens
) and Clauses 22.2(b), 22.2(f) and 22.2(k) (
General Taxes
), each Party shall pay the full amount due to any other Party, without reduction or offset for exchange charges or bank transfer charges, as set out in each invoice issued by that other Party under Clause 14.1 (
Dayrate Invoices
) or Clause 14.4 (
Other Amounts
) within thirty (30) Days after the date of receipt of such invoice.
|
(b)
|
Payment shall be by wire transfer of immediately available funds in USD to an account of that Party with a bank designated by the relevant Party in writing (the "
Nominated Account
").
|
(c)
|
The Lessee shall have the right to offset monies owed to it by the Owner or the Operator under this Agreement that remain outstanding, following the expiry of any relevant payment periods in accordance with this Agreement, against payments due to the Owner or the Operator by the Lessee under this Agreement. The Owner or the Operator (as appropriate) shall remain liable to pay the Lessee in accordance with this Agreement any remaining sums outstanding (including any interest in accordance with Clause 14.6 (
Payment Default
) after such right of offset has been applied. Prior to exercising such right of offset, the Lessee shall provide the Owner or the Operator (as appropriate) reasonable supporting documentation in respect of such offset. If the liabilities to be offset are expressed in different currencies, the Lessee may convert either liability at a market rate of exchange for the purpose of offset.
|
14.3
|
Incomplete Invoices
|
14.4
|
Other Amounts
|
(a)
|
Within ten (10) Business Days after:
|
(i)
|
the end of a month in which Daily LDs or Standby Dayrate (as applicable) are payable, the Lessee and/or the Owner (as applicable) shall submit to the other an invoice setting out the amount of the Daily LDs or Standby Dayrate (as applicable) to be paid in respect of the month which has just completed and for which the invoice is submitted;
|
(ii)
|
the Bullet Payment becomes due pursuant to Clause 7.17(a) (
Bullet Payment
), the Owner shall submit to the Lessee an invoice setting out the amount of the Bullet Payment to be paid by the Lessee to the Owner;
|
(iii)
|
a lump sum amount is payable pursuant to Clauses 11.9(b)(i), 11.9(c)(i), 11.9(e)(i)(A), 11.9(e)(ii)(A) or 11.9(e)(iii)(D) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
), the Lessee shall submit to the Owner an invoice setting out the amount of the lump sum payment to be paid by the Owner to the Lessee pursuant to Clauses 11.9(b)(i), 11.9(c)(i), 11.9(e)(i)(A), 11.9(e)(ii)(A) or 11.9(e)(iii)(D) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
);
|
(iv)
|
a lump sum reconciliation amount is payable pursuant to Clause 13.8(e) (
Availability and Capacity Performance
), the Lessee and/or the Owner (as applicable) shall submit to the other an invoice setting out the reconciliation amount to be paid;
|
(v)
|
an amount is payable by the Lessee to the Owner and/or the Operator (as applicable) pursuant to Clause 11.4 (
Off-Specification Feed Gas Consequences
), the Owner and/or the Operator (as applicable) shall submit to the Lessee an invoice setting out the amount to be paid; or
|
(vi)
|
an amount is payable by the Lessee to the Owner pursuant to Clauses 9.5(l)(iv) and/or 9.5(l)(v) (
Work Programme and Budget
), the Owner shall submit to the Lessee an invoice setting out the amount to be paid.
|
(b)
|
Where a Bullet Reimbursement is payable pursuant to Clause 7.17 (
Bullet Payment
) and/or a Project Delay Payment Reimbursement is payable pursuant to Clause 15.5(c) (
Prolonged Project Delay FM
):
|
(i)
|
the Owner shall provide the Lessee with such information as is reasonably necessary to enable the Lessee to produce an invoice in accordance with Clause 14.4(b)(ii) (
Other Amounts
) by no later than five (5) Business Days after the end of a month in which a Bullet Reimbursement and/or Project Delay Payment Reimbursement is payable; and
|
(ii)
|
the Lessee shall submit an invoice to the Owner (within ten (10) Business Days after receipt of the information under Clause 14.4(b)(i) (
Other Amounts
)) setting out the amount of the Bullet Reimbursement and/or Project Delay Payment Reimbursement to be repaid to the Lessee.
|
(c)
|
If any other amounts are due from one Party to another Party, other than those amounts set out in an invoice issued pursuant to Clause 14.1 (
Dayrate Invoices
) or 14.4(a) (
Other Amounts
), then the Party to whom amounts are owed shall promptly, and in any event within ten (10) Business Days after the amount becomes due, issue an invoice setting out the amount to be paid by the other Party, together with sufficient supporting documentation.
|
14.5
|
Disputed Invoices
|
(a)
|
In the event of a good faith disagreement concerning any invoice, each Party (as applicable) shall:
|
(i)
|
make payment of the undisputed amount thereof (in accordance with Clauses 14.2 (
Payment
) and 14.3 (
Incomplete Invoices
));
|
(ii)
|
withhold payment of the disputed amount until such disagreement is resolved between the Parties or determined pursuant to Clause 24.5 (
Arbitration
), whereupon any amount that has been agreed or determined to be payable shall be paid by the paying Party within five (5) Business Days together with interest on that amount determined at a rate per annum equal to [*****] accruing on a daily basis from the date the relevant disputed amount fell due until the date of actual payment; and
|
(iii)
|
as soon as reasonably practicable and in any event on or before the due date for payment under Clause 14.2 (
Payment
), notify the issuing Party of the reasons for such disagreement.
|
(b)
|
Neither the presentation nor payment nor non-payment of an individual invoice shall constitute a settlement of a dispute, an accord, satisfaction, a remedy of account stated, or otherwise waive or affect the rights of the Parties. In particular, a Party may correct or modify any sum previously paid to another Party under this Agreement in any or all of the following circumstances:
|
(i)
|
any such sum was incorrect; or
|
(ii)
|
any such sum was not properly payable to the other Party.
|
14.6
|
Payment Default
|
14.7
|
Audit, Records and Financial Reporting
|
(a)
|
At any time during the Term and for a period of [*****] thereafter the Lessee, the Co-venturers and the States and its and their duly authorised representatives will have access to and the right to audit any of the Owner's and the Operator's (and their respective Subcontractors') books, vouchers, receipts, correspondence, memoranda, and other records relating to the correctness of any rate, adjustment or any invoice presented by the Owner or the Operator to the Lessee for payment, including all fiscal export meter readings and any documentation relating to the accuracy of such meters, and any tank measurement, meter readings and related data in relation to the FLNG Facility. The Owner and the Operator will preserve all such records for a period of not less than [*****] and will, upon written request, make them available to the Lessee, the Co-venturers and the States. Each of the Owner and the Operator shall use reasonable endeavours to include in any contract with a Subcontractor an obligation to preserve all records relating to the performance of the Work and/or the Operating Services for a period of not less than [*****] and that such records shall, upon written request be made available to the Lessee, the Co-venturers and the States. Any audits by the Lessee, the Co-venturers and the States will be made during the Owner's or Operator's normal working hours (as applicable) and following not less than thirty (30) Days' notice.
|
(b)
|
The Lessee, the Co-venturers and the States will notify the Owner and/or the Operator of any matters arising in an audit which they believe may necessitate the making of an adjustment. Within a period of thirty (30) Days from such notification the Parties shall consult with each other with a view to agreeing whether or not any adjustment is required and, if so, the nature of the adjustment to be made. In the event that the Parties fail within a further period of thirty (30) Days to reach agreement as to whether or not any adjustment is required and, if so, the nature of the adjustment to be made, then the matter shall be resolved in accordance with Clause 24.4 (
Expert Determination
). Following the determination of the Expert, the Parties shall within a period of thirty (30) Days implement the Expert's findings by way of set off or other balancing payment.
|
(c)
|
At any time during the period of this Agreement, but not more than once each Contract Year, the Lessee, the Co-venturers and the States may at their cost, procure an audit of the Operator's compliance with the Operating Management System
in accordance with section 1 of Schedule 14 (
Operating Services
), provided the audits will be made following not less than thirty (30) Days' notice. Any breach or deficiency found in the course of such audit shall be promptly notified to the Operator and rectified by the Operator at its sole cost. If any Party disputes a finding of breach or deficiency, or rejects an audit recommendation, then the Parties shall consult with each other within a period of thirty (30) Days from notification with a view to agreeing whether there has been a breach or deficiency or whether or not an audit recommendation should be accepted. In the event that the Parties fail within a further period of thirty (30) Days to reach agreement as to whether there has been a breach or deficiency or whether or not an audit recommendation should be accepted, then the matter shall be resolved in accordance with Clause 24.4 (
Expert Determination
). Following the determination of the Expert, the Parties shall within a period of thirty (30) Days implement the Expert's findings.
|
(d)
|
The Owner and the Operator shall throughout the Term and for a period of [*****] thereafter make available to the Lessee, the Co-venturers and the States on request, but not more often than once each Contract Year, the audited accounts in respect of the financial activities of the Owner and the Operator arising throughout the Term. Throughout the Term and for a period of [*****] thereafter the Owner and the Operator shall permit the inspection by the Lessee, the Co-venturers and the States of its annual return, register of members, directors, officers and charges at its registered office or a registered office of one of its Affiliates. Such inspection shall be made during normal working hours and following not less than thirty (30) Days' notice.
|
(e)
|
Any right to audit pursuant to this Clause 14.7(a) (
Audit, Records and Financial Reporting
) shall be exercised by the Lessee, the Co-venturers and the States no more than once each in a Contract Year and shall be conducted in such a manner so as to not unreasonably disrupt the Owner or Operator.
|
14.8
|
Nominated Account
|
15.1
|
Definition
|
(a)
|
"
FM Event
" means an event or circumstance (or series of connected events or circumstances) which is beyond the control of the Party affected and prevents or impedes the due performance of that Party's obligations under this Agreement:
|
(i)
|
but only if and to the extent that such circumstance, despite the exercise of reasonable diligence or adoption of reasonable precautions, acting as a Reasonable and Prudent Operator, cannot be prevented or overcome by such Party; and
|
(ii)
|
includes, provided the foregoing conditions are satisfied, any:
|
(A)
|
act of war (declared or not declared), invasion, act of foreign enemies, hostilities, civil war, insurrection of military or usurped power (whether war be declared or not), confiscation or expropriation on orders of any Government Authority (provided that in the case of any requisition, expropriation, confiscation, nationalisation and seizure of the FLNG Facility by each or any of the States, Clause 17.4 (
Requisition of FLNG Facility
) shall apply);
|
(B)
|
lapse of authorisation issued by Governmental Authority;
|
(C)
|
change of Law of either or both of the States that is enacted after the date of this Agreement, other than any change of Law that should have been in the reasonable contemplation of the Parties at the time of entering into this Agreement;
|
(D)
|
act of God, flood, earthquake, lightning or other natural physical disaster, hurricanes that in the Saffir-Simpson scale reach category 1 at the time of affecting the Upstream Facilities and/or the FLNG Facility, fire, explosion or navigational or maritime perils;
|
(E)
|
ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;
|
(F)
|
act of terrorism, riot, rebellion, revolution, sabotage or civil unrest (but not including any strike or slow down or obstructive or disruptive conduct or other labour disturbances restricted to any entity or entities within that Party's Group); or
|
(G)
|
sanctions or State imposed suspension of activities,
|
(b)
|
For the avoidance of doubt, FM Events shall not include any of the following occurrences:
|
(i)
|
breakdown or other failure of a Party's Group's equipment unless that failure was itself due to an FM Event;
|
(ii)
|
breakdown or other failure of any transportation used by any entity or entities within a Party's Group unless that failure was itself due to an FM Event;
|
(iii)
|
other commitments of a Party limiting its ability to perform its obligations under this Agreement;
|
(iv)
|
any failure by a subcontractor of any tier of a Party (including a Key Contractor and their subcontractors of any tier) to perform its obligations, unless that failure was itself due to an event of force majeure (and, for the avoidance of doubt an event of force majeure under a subcontract, any Conversion Contract and/or any construction contract for the Upstream Facilities shall not be deemed to be an FM Event under this Agreement if it does not meet substantially similar criteria for an FM Event);
|
(v)
|
any failure by an LNG Buyer (including any of its end customers of any tier) to perform its obligations, unless that failure was itself due to an event of force majeure (and, for the avoidance of doubt an event of force majeure under an LNG SPA or end customer agreement shall not be deemed to be an FM Event under this Agreement if it does not meet substantially similar criteria for an FM Event);
|
(vi)
|
rough sea and/or adverse weather conditions that are normal occurrences in the region and could reasonably have been expected (and, in respect of an assertion of the existence of an FM Event by the Owner or the Operator, rough sea and/or adverse weather conditions that were specified by the Lessee in Schedule 1 (
Basis of Design
));
|
(vii)
|
lack of finances, lack of funds or access to funds, or inability to borrow funds of a Party;
|
(viii)
|
lack of valid certificates, visas, permits, licences or any other documents of a Party resulting from a failure by the affected Party to comply with the requirements of this Agreement;
|
(ix)
|
shortage of labour or equipment, unless caused by events or circumstances that are themselves an FM Event; and
|
(x)
|
failure of the Unit Area to produce Natural Gas for any reason other than an FM Event.
|
15.2
|
Force Majeure
|
(a)
|
If, because of an FM Event (including an event of force majeure affecting any subcontractor of the affected Party or an LNG Buyer that meets substantially similar criteria for an FM Event):
|
(i)
|
the Owner is unable to undertake the Work or otherwise meet its obligations under this Agreement (other than any obligation to make payments);
|
(ii)
|
the Operator (or, if Clause 3.1(d) (
Owner's General Obligations
) applies, the Owner):
|
(A)
|
is unable to perform the Operating Services;
|
(B)
|
fails to achieve the Performance Standards; or
|
(C)
|
is otherwise unable to meet its obligations under this Agreement (other than any obligation to make payments); or
|
(iii)
|
the Lessee is unable to meet its obligations under this Agreement (other than any obligation to make payments),
|
(A)
|
the Lessee shall excuse the Owner and/or Operator (as applicable) from its obligations to undertake the Work, perform the Operating Services and/or achieve the Performance Standards under this Agreement (other than any obligation to make payments), to the extent that the FM Event affects the performance of such obligations and the affected Party shall not be in breach of this Agreement in respect of such failure;
|
(B)
|
the Owner and Operator shall excuse the Lessee from its obligations under this Agreement (other than any obligation to make payments) to the extent that the FM Event impacts upon the performance of the Lessee's obligations under this Agreement and the Lessee shall not be in breach of this Agreement in respect of such failure;
|
(C)
|
if the FM Event affects one or more of the LNG Buyers, the Lessee shall use reasonable endeavours to procure that the Co-venturers make alternative arrangements for the affected LNG Cargo or Cargoes;
|
(D)
|
the Dayrate payable by the Lessee to the Owner and the Operator shall be the FM Event Dayrate; and
|
(E)
|
the Lessee may request an extension to the Lease Period in accordance with Clause 8.3 (
Additional Term
) for each Day during which the Owner, the Operator or the Lessee is unable to meet its obligations under this Agreement (other than any obligation to make payments) due to an FM Event.
|
(b)
|
If an FM Event or series of FM Events (whether connected or not) continues to affect the Owner, the Operator and/or the Lessee under Clauses 15.2(a)(i), 15.2(a)(ii) and/or 15.2(a)(iii) (
Force Majeure
) (as applicable) for at least:
|
(i)
|
[*****]; or
|
(ii)
|
[*****],
|
(iii)
|
[*****] in writing to the other Parties; or
|
(iv)
|
if Clause 15.2(f) (
Force Majeure
) applies, [*****] in writing to the other Parties.
|
(c)
|
A notice under Clause 15.2(b)(iii) (
Force Majeure
) may be given not more than [*****] prior to the anticipated occurrence of such milestone in Clause 15.2(b)(i) or 15.2(b)(ii) (
Force Majeure
) and such termination shall become effective, subject to 15.2(g) (
Force Majeure
), on:
|
(i)
|
the date the relevant milestone in Clause 15.2(b) (
Force Majeure
) that was the subject of the notice of termination given by the Lessee occurs; or
|
(ii)
|
if Clause 15.2(c)(i) (
Force Majeure
) occurs prior the date that is [*****] by the Lessee was given, the date that is [*****].
|
(d)
|
If the milestone in Clause 15.2(b)(i) (
Force Majeure
) that was the subject of the notice of termination given by the Lessee under Clause 15.2(c) (
Force Majeure
) does not occur [*****] of the Lessee giving such notice of termination, then the Lessee may by giving notice in writing to the other Parties revoke such notice of termination upon which it shall be revoked and invalid for the purposes of Clause 15.2(b)(iii) (
Force Majeure
) (without any liability due by the Lessee to the Owner and/or the Operator).
|
(e)
|
If the milestone in Clause 15.2(b)(ii) (
Force Majeure
) that was the subject of the notice of termination given by the Lessee under Clause 15.2(c) (
Force Majeure
) does not occur, then such notice of termination shall be deemed revoked and invalid for the purposes of termination under Clause 15.2(b) (
Force Majeure
) (without any liability due by the Lessee to the Owner and/or the Operator).
|
(f)
|
If the Lessee has not exercised its right to terminate this Agreement under Clause 15.2(b) (
Force Majeure
) within [*****] of a milestone in Clause 15.2(b) (
Force Majeure
) occurring, any future exercise of the Lessee's right to terminate this Agreement under Clause 15.2(b) (
Force Majeure
) shall require at least [*****] notice in writing to the other Parties in accordance with Clause 15.2(b)(iv) (
Force Majeure
).
|
(g)
|
On or before the date of the termination of this Agreement in accordance with Clauses 15.2(b) or 15.2(c) (
Force Majeure
), the Lessee shall pay to the Owner a termination payment of an amount equal to the Lessee Credit Support Amount, less any FM Event Dayrate already paid or payable by the Lessee (or paid by a Lessee Credit Support provider) and any Project Delay Payment that has not been reimbursed to the Lessee pursuant to Clause 15.5 (
Prolonged Project Delay FM
) under this Agreement, and such termination payment is agreed by the Parties to be a genuine pre-estimate of the losses which may be sustained by the Owner and the Operator (as applicable) and is within proportion to the legitimate interests of the Owner and the Operator having regard to the nature of the obligations of each Party under this Agreement and is not a penalty.
|
(h)
|
If this Agreement is terminated in accordance with Clauses 15.2(b) or 15.2(c) (
Force Majeure
), the Parties shall have no further liability to each other, other than with respect to the Surviving Obligations and any rights and obligations that have accrued prior to termination.
|
15.3
|
Notification of FM
|
(a)
|
Not later than five (5) Days after becoming aware of the occurrence of an FM Event, the affected Party shall provide the other Parties with a written notice setting out:
|
(i)
|
a description of the FM Event;
|
(ii)
|
the obligations of that Party under this Agreement which are impacted by the FM Event;
|
(iii)
|
an estimate of the expected duration of the FM Event; and
|
(iv)
|
the steps that the affected Party is taking or intends to take to prevent, mitigate, rectify, and/or overcome the effects of the FM Event.
|
(b)
|
During the continuation of the FM Event, the affected Party shall provide regular written reports no less frequently than every ten (10) Days (except where otherwise agreed) updating the information required by Clause 15.3(a) (
Notification of FM
) and providing any other information that the other Parties may reasonably request.
|
(c)
|
The affected Party's timely provision of the notice required by Clause 15.3(a) (
Notification of FM
) is a condition precedent to any relief afforded or to be afforded to the affected Party in respect of an FM Event. For the purposes of determining whether a Party has provided a notice delivered in accordance with, and at the time required by, Clause 15.3(a) (
Notification of FM
), the other Parties shall not challenge the sufficiency of such notice to the extent that the information included in that notice (in accordance with Clause 15.3(a) (
Notification of FM
)) is incomplete at the time such notice is issued by the affected Party. If the affected Party provides notice within five (5) Days after becoming aware of the occurrence of an FM Event, it shall be entitled to the reliefs pursuant to this Clause 15 (
Force Majeure
) in respect of the FM Event from the FM Event Start Date. If the affected Party does not provide notice within such five (5) Day period then it shall be entitled to the reliefs pursuant to this Clause 15 (
Force Majeure
) in respect of the FM Event from the time it actually gives such notice.
|
15.4
|
Consequences of FM
|
15.5
|
Prolonged Project Delay FM
|
(a)
|
If a Project Delay Event or series of Project Delay Events (whether connected or not) extends the Anticipated Commercial Operations Date by a [*****] from the Scheduled Commercial Operations Date (such [*****] being the "
Project Delay Start Date
"), then the Lessee shall pay the Owner an amount equal to [*****] of the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable) for each Day from the Project Delay Start Date until the Commissioning Start Date (the "
Project Delay Payment
").
|
(b)
|
For the purposes of Clause 15.5(a) (
Prolonged Project Delay FM
), "
Project Delay Event
" means:
|
(i)
|
an FM Event (including an event of force majeure affecting any subcontractor of the affected Party or any LNG Buyer that meets substantially the similar criteria for an FM Event) affecting the Lessee's ability to meet its obligations under this Agreement (other than any obligation to make payments);
|
(ii)
|
on and from [*****] until the later of the date the FLNG Facility is ready to enter the Lessee's Operating Boundary and the date the Owner provides a Hold-point Confirmation in respect of the Hold-point at paragraph (b) of the definition of "Hold-point", a Political FM Event affecting the Owner's ability to undertake the Work or otherwise meet its obligations under this Agreement (other than any obligation to make payments); and
|
(iii)
|
on and from the later of the date the FLNG Facility is ready to enter the Lessee's Operating Boundary and the date the Owner provides a Hold-point Confirmation in respect of the Hold-point at paragraph (b) of the definition of "Hold-point", an FM Event (including an event of force majeure affecting any subcontractor of the affected Party or any LNG Buyer that meets substantially the similar criteria for an FM Event) affecting the Owner's ability to undertake the Work or otherwise meet its obligations under this Agreement (other than any obligation to make payments).
|
(c)
|
If the Owner has received the Project Delay Payment pursuant to Clause 15.5(a) (
Prolonged Project Delay FM
), then on each of the first (1
st
) Commercial Operations Date Anniversary, the second (2
nd
) Commercial Operations Date Anniversary and the third (3
rd
) Commercial Operations Date Anniversary (each a "
Project Delay Reimbursement Date
"), the Owner shall reimburse the Lessee on each Project Delay Reimbursement Date, an amount equal to the lower of:
|
(i)
|
the balance of the Production Bank (taking into account the reimbursement priority principle set out in Clause 7.17(d) (
Bullet Payment
)); and
|
(ii)
|
the aggregate amount of the Project Delay Payment not yet reimbursed pursuant to this Clause 15.5(c) (
Prolonged Project Delay FM
),
|
(d)
|
On and from the fourth (4
th
) Commercial Operations Date Anniversary, if any Project Delay Payment has not been reimbursed to the Lessee pursuant to Clause 15.5(c) (
Prolonged Project Delay FM
) (such amount being the "
Retained Project Delay Amount
"), then:
|
(i)
|
for the purposes of Clause 8.3(a)(iv) (
Additional Term
), there shall be deemed to be a Project Delay Event for a number of Days equal to:
|
(A)
|
the sum of:
|
(1)
|
the Retained Project Delay Amount; divided by
|
(2)
|
the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable);
|
(B)
|
[*****]; and
|
(ii)
|
the Owner shall not have any obligation to pay the Retained Project Delay Amount.
|
15.6
|
Obligations Following FM
|
(a)
|
To the extent any Party is entitled to relief from its obligations under this Agreement as a result of an FM Event, the affected Party shall, as soon as reasonably practicable, take the measures which a Reasonable and Prudent Operator would take to bring the FM Event to an end and to overcome and/or minimise the effects which prevent, impede or delay such affected Party's ability to resume performance under this Agreement. An affected Party shall not be entitled to relief, and an FM Event shall cease to be treated as an FM Event, to the extent that the affected Party claiming the FM Event relief fails to comply with this Clause 15.6(a) (
Obligations Following FM
), unless such failure is itself caused by the FM Event.
|
(b)
|
As soon as an affected Party ceases to be so affected by an FM Event and is no longer prevented from performing its obligations under this Agreement, such affected Party shall:
|
(i)
|
notify the other Parties accordingly, in writing; and
|
(ii)
|
recommence performance of such obligations as soon as reasonably practicable.
|
16.
|
REPRESENTATIONS AND WARRANTIES
|
16.1
|
Owner's Representations and Warranties
|
(a)
|
it is duly incorporated and validly existing under the laws of the Republic of the Marshall Islands;
|
(b)
|
it has the requisite power, capacity and authority to enter into this Agreement, the Conversion Contracts and all ancillary or related agreements and to perform its obligations in respect of such agreements;
|
(c)
|
it is not aware, having made reasonable enquiries, of any Law that would prevent it from entering into this Agreement and performing its obligations hereunder;
|
(d)
|
it is an Affiliate of GLNG, which is suitably qualified and experienced to perform the Owner's obligations under this Agreement;
|
(e)
|
it has conducted appropriate risk based due diligence on the Key Contractors and that each Key Contractor is suitable (technically, financially and from a compliance perspective) to perform that part of the Work or the Operating Services subcontracted to them;
|
(f)
|
it is the legal and beneficial owner of the Golar Gimi, with clear and valid title free of all mortgages, liens and any other encumbrances except for permitted encumbrances in connection with the debt or equity financing of the FLNG Facility pursuant to Clause 28.2 (
Security
); and
|
(g)
|
it has satisfied itself before entering into this Agreement as to the scope of Work (including the PA Work), including the Personnel, material, Equipment, Plant and facilities required to perform the Work, and the sufficiency of the Nominal Set Rate.
|
16.2
|
Operator's Representations and Warranties
|
(a)
|
it is duly incorporated and validly existing under the laws of the Islamic Republic of Mauritania;
|
(b)
|
it has the requisite power, capacity and authority to enter into this Agreement and all ancillary or related agreements and to perform its obligations under such agreements;
|
(c)
|
it has not undertaken any business (other than administrative business in the ordinary course) prior to the date that it accedes to this Agreement;
|
(d)
|
it is not aware, having made reasonable enquiries, of any Law that would prevent it from entering into this Agreement and performing its obligations thereunder;
|
(e)
|
it is an Affiliate of GLNG, which is suitably qualified and experienced to perform the Operator's obligations under this Agreement; and
|
(f)
|
it has satisfied itself before entering into this Agreement as to the scope of Operating Services, including the Personnel, material, Equipment, Plant and facilities required to perform the Operating Services.
|
16.3
|
Lessee's Representations and Warranties
|
(a)
|
it is duly incorporated and validly existing under the laws of England and Wales;
|
(b)
|
it has the requisite power, capacity and authority to enter into this Agreement and to perform its obligations under this Agreement (provided that such warranty with respect to performance of obligations shall only be given on the Effective Date); and
|
(c)
|
it is not aware, having made reasonable enquiries, of any Law that would prevent it from entering into this Agreement and performing its obligations thereunder.
|
17.
|
LIABILITY AND INDEMNITY
|
17.1
|
Liability of the Owner
|
(a)
|
any loss of, loss of use of or damage to property of the Owner Group or any injury, ill health, disease or death, to any members of the Owner Group, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Lessee Group;
|
(b)
|
injury to, ill health, disease or death of, or, subject to Clauses 11.9(b) and 11.9(e) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
), loss of, loss of use of or damage to the property of, any Third Party to the extent that such injury, ill health, disease, death, loss or damage is caused by the negligence or breach of duty (statutory or otherwise) of any member of the Owner Group; and
|
(c)
|
any pollution or contamination having escaped, been released or discharged from the FLNG Facility or any other property in the control of the Owner Group (including without limitation any support vessels) irrespective of cause even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Lessee Group,
|
17.2
|
Liability of the Lessee
|
(a)
|
any loss of, loss of use of or damage to property of the Lessee Group or any injury, ill health, disease or death, to any members of the Lessee Group, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Owner Group;
|
(b)
|
injury to, ill health, disease or death of, or, subject to the Lessee's rights of recovery under Clause 11.9(f)(i) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
), loss of, loss of use of or damage to the property of, any Third Party to the extent that such injury, ill health, disease, death, loss or damage is caused by the negligence or breach of duty (statutory or otherwise) of any member of the Lessee Group; and
|
(c)
|
any pollution or contamination having escaped, been released or discharged from the Upstream Facilities (other than the FLNG Facility or any other property in the control of the Owner Group) irrespective of cause even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Owner Group,
|
17.3
|
Exclusion of Consequential Loss
|
(a)
|
Except where amounts are expressly payable under this Agreement:
|
(i)
|
no Party shall be liable to another for Consequential Loss suffered in connection with or arising out of this Agreement; and
|
(ii)
|
each Party (the "
Indemnifying Party
") shall indemnify and hold each other Party (the "
Indemnified Party
") and its respective Group harmless from and against any and all Consequential Loss that the Indemnifying Party or any of its Group may suffer in connection with the performance or non-performance of this Agreement, whether such liability arises under contract or in tort, howsoever caused and whether resulting from or contributed to by any act, omission, negligence or fault or breach of duty (statutory or otherwise) on the part of the Indemnified Party or any member of its Group and regardless of the Indemnified Party's Wilful Misconduct/Gross Negligence.
|
(b)
|
For the purposes of this Clause 17.3 (
Exclusion of Consequential Loss
), the Owner and the Operator shall be deemed to be one "Party".
|
17.4
|
Requisition of FLNG Facility
|
(a)
|
If the FLNG Facility is requisitioned, expropriated, confiscated, nationalised or seized by either or both of the States ("
Requisitioned
") at any time on or after the Ready for Connection Date but before this Agreement expires or is terminated, the Lessee shall:
|
(i)
|
if the FLNG Facility is Requisitioned prior to the Commercial Operations Date, continue to pay to the Owner the amount determined in accordance with Clause 7.12(d) (
Commissioning Period
); or
|
(ii)
|
if the FLNG Facility is Requisitioned after the Commercial Operations Date, pay to the Owner and to the Operator the Dayrate in accordance with Clause 13.2 (
Obligation to pay Dayrate
).
|
(b)
|
During any period of Requisition, the Owner and the Lessee shall each have the right to terminate this Agreement immediately upon giving notice of termination to the other Parties. Upon such termination, the Lessee shall pay to the Owner an amount equal to the higher of:
|
(i)
|
if:
|
(A)
|
[*****]; or
|
(B)
|
[*****],
|
(ii)
|
the lower of:
|
(A)
|
[*****] (as determined by an internationally recognised accountancy firm instructed by the Owner and the Lessee); and
|
(B)
|
either:
|
(1)
|
on and from the date that the FLNG Facility enters the territorial waters of either State [*****] Commercial Operations Date Anniversary: [*****]; or
|
(2)
|
commencing on the date which is the [*****] Commercial Operations Date Anniversary, at the end of each complete [*****] period thereafter until the [*****] Commercial Operations Date Anniversary:
|
(3)
|
commencing on the date which is the [*****] Commercial Operations Date Anniversary, at the end of each complete [*****] period thereafter until the [*****] Commercial Operations Date Anniversary:
|
(c)
|
Upon full and final payment by the Lessee to the Owner in accordance with Clause 17.4(b) (
Requisition of FLNG Facility
):
|
(i)
|
all right, title and interest in any claim or right of recovery in relation to the Requisition held by the Owner shall immediately irrevocably pass to the Lessee; and
|
(ii)
|
the Owner shall be liable for and shall Defend, indemnify and hold the Lessee Group harmless from and against any and all Claims by the Lenders and the Owner Group's other creditors arising out of or in connection with the Requisition of the FLNG Facility.
|
(d)
|
For the avoidance of doubt, in the event of termination of this Agreement pursuant to Clause 17.4(b) (
Requisition of FLNG Facility
), upon payment of the sums due under Clause 17.4(b) (
Requisition of FLNG Facility
), the Parties shall have no further liability to each other, other than with respect to the Surviving Obligations and any rights and obligations that have accrued prior to termination.
|
(e)
|
The rights of the Parties under this Clause 17.4 (
Requisition of FLNG Facility
) shall prevail over any inconsistencies with Clause 7.2(a) (
Inspection Rights
).
|
17.5
|
Mutual Hold Harmless Arrangements
|
(a)
|
Except where Clause 17.5(b) (
Mutual Hold Harmless Arrangements
) applies, during the performance of the Work and the Operating Services:
|
(i)
|
the Owner shall be liable for and shall indemnify, Defend and hold each Other Contractor Group harmless from and against all Claims arising out of or in connection with the performance or non-performance of this Agreement in respect of:
|
(A)
|
all injuries to, deaths, or illnesses of persons in the Owner Group, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Other Contractor Group;
|
(B)
|
all damages to or losses of the Owner Group's property, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Other Contractor Group; and
|
(C)
|
the Owner Group's own Consequential Loss, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Other Contractor Group;
|
(ii)
|
the indemnities, Defence and hold harmless provisions given by the Owner in Clause 17.5(a)(i) (
Mutual Hold Harmless Arrangements
) in favour of any member of the Other Contractor Group shall be provided by the Owner to the extent that each such Other Contractor has provided indemnities, Defence and hold harmless provisions for the benefit of the Owner Group that give rise to the substantially equivalent rights and protection to the Owner Group; and
|
(iii)
|
the indemnities, Defence and hold harmless provisions provided by the Owner in Clauses 17.5(a)(i) (
Mutual Hold Harmless Arrangements
) in favour of any member of the Other Contractor Group shall become effective from such time and for such duration as each such Other Contractor becomes bound by such indemnities, Defence and hold harmless provisions in favour of the Owner Group as contemplated under Clause 17.5(a)(ii) (
Mutual Hold Harmless Arrangements
).
|
(b)
|
If an Other Contractor will be responsible for carrying out construction activity at or near to the LNG Hub Facilities (and in any event within the Lessee's Operating Boundary), the Lessee shall use reasonable endeavours to procure, and, if the Other Contractor accepts, the Owner and the Operator shall be required to take all action required in order to enter into, a mutual hold harmless and cross indemnity deed on the following terms and conditions ("
MHHCID
").
|
(i)
|
The MHHCID shall include the following mutual hold harmless and cross indemnity arrangements:
|
(A)
|
the Owner shall be liable for and shall indemnify, Defend and hold the Other Contractor Group harmless from and against all Claims arising out of or in connection with the performance or non-performance of this Agreement (including Claims arising out of the scope of work to be performed by the Other Contractor at or near to the LNG Hub Facilities) in respect of:
|
(1)
|
all injuries to, deaths, or illnesses of persons in the Owner Group, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Other Contractor Group;
|
(2)
|
all damages to or losses of the Owner Group's property, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Other Contractor Group; and
|
(3)
|
the Owner Group's own Consequential Loss, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Other Contractor Group; and
|
(B)
|
the Other Contractor shall be liable for and shall indemnify, Defend and hold the Owner Group harmless from and against all Claims arising out of or in connection with the scope of work to be performed by the Other Contractor at or near to the LNG Hub Facilities (including the performance or non-performance of this Agreement) in respect of:
|
(1)
|
all injuries to, deaths, or illnesses of persons in the Other Contractor Group, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Owner Group;
|
(2)
|
all damages to or losses of the Other Contractor Group's property, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Owner Group; and
|
(3)
|
the Other Contractor Group's own Consequential Loss, howsoever caused even if caused by any act, omission, fault, negligence or breach of duty (statutory or otherwise) of any member of the Owner Group.
|
(ii)
|
Pursuant to the MHHCID:
|
(A)
|
the Owner shall ensure that each relevant underwriter for the insurances that the Owner is required to take out and maintain in accordance with this Agreement waives any right of recourse against any member of the Other Contractor Group, including in particular subrogation rights against such member of the Other Contractor Group, in connection with this Agreement (including in connection with the scope of work to be performed by the Other Contractor at or near to the LNG Hub Facilities), irrespective of the negligence or breach of duty of any member of such Other Contractor Group;
|
(B)
|
the Operator shall ensure that each relevant underwriter for the insurances that the Operator is required to take out and maintain in accordance with this Agreement waives any right of recourse against any Other Contractor Group, including in particular subrogation rights against such Other Contractor Group, in connection with this Agreement (including in connection with the scope of work to be performed by the Other Contractor at or near to the LNG Hub Facilities), irrespective of the negligence or breach of duty of any member of such Other Contractor Group; and
|
(C)
|
the Other Contractor shall procure that each relevant underwriter for the insurances that the Other Contractor is required to take out and maintain in connection with the scope of work to be performed by the Other Contractor at or near to the LNG Hub Facilities waives any right of recourse against any member of the Owner Group, including in particular subrogation rights against such member of the Owner Group, in connection with the scope of work to be performed by the Other Contractor at or near to the LNG Hub Facilities (including in connection with this Agreement), irrespective of the negligence or breach of duty of any member of such Owner Group.
|
(iii)
|
The indemnities and Defence, save and hold harmless provisions provided by the Owner and the Other Contractor, as described in Clauses 17.5(b)(i) (
Mutual Hold Harmless Arrangements
) shall become effective from such time and for such duration as set out in the applicable MHHCID.
|
(c)
|
The Lessee shall use reasonable endeavours to procure that each of the LNG Buyers' LNG transporters shall enter into conditions of use acceptable to the International Group of Protection and Indemnity clubs prior to each of the LNG Buyers' LNG transporters entering into proximity of the LNG Hub Facilities. For the purposes of risk allocation, such conditions of use shall include the FLNG Facility within the same category of interests as the LNG Hub Facilities, and not within the same category of interests as the LNG Buyers' LNG transporters.
|
(d)
|
The Lessee shall, by no later than six (6) months prior to the Sailaway Date (or such other date as the Parties may agree, acting reasonably), provide the Owner with a copy of the then current draft of the:
|
(i)
|
MHHCID; and
|
(ii)
|
conditions of use pursuant to Clause 17.5(c) (
Mutual Hold Harmless Arrangements
).
|
17.6
|
Liens
|
(a)
|
Subject to Clause 28.2 (
Security
), the Owner and the Operator shall not permit any lien, attachment, charge, claim, encumbrances or the like (collectively, "
Liens
") to be imposed by any person, firm, or Government Authority upon the FLNG Facility or the Lessee Group's property by reason of any Claim or demand by or against the Owner, the Operator or any subcontractor thereof of any tier (including any Key Contractor and its subcontractors of any tier) without the Lessee's prior written approval and the Owner shall indemnify, Defend and hold the Lessee Group harmless from and against the same.
|
(b)
|
The Owner or the Operator (as applicable) shall, upon receiving notice from the Lessee or otherwise becoming aware of any asserted Lien of the type contemplated under Clause 17.6(a) (
Liens
) that may affect the FLNG Facility, the Lessee Group's property or any part thereof, immediately secure the release or discharge of such Lien at its own expense and shall promptly upon demand reimburse the Lessee Group for all reasonable and properly incurred cost or expense as a result of the imposition of the same.
|
(c)
|
If the Owner or the Operator (as applicable) fails to procure the release or discharge of any Lien within thirty (30) Days of receiving notice from the Lessee or otherwise becoming aware of such Lien, then the Lessee may procure the release or discharge of the same at its own expense and the Owner shall promptly upon demand reimburse the Lessee for all reasonable and properly incurred costs or expenses as a result of doing so. If the Lessee's reasonable and properly incurred costs and expenses remain unpaid by the Owner for a period of thirty (30) Days, the Lessee shall have the right to withhold an equal amount from any payments due to the Owner or the Operator under this Agreement.
|
17.7
|
Notice and Defence
|
(a)
|
The Owner, Operator or Lessee (as applicable) shall promptly give to the Owner and the Operator (in the case of the Lessee) or the Lessee (in the case of the Owner or the Operator) notice in writing of any Claims that have been made known to it or any proceedings commenced, in both cases for which indemnification under this Agreement is claimed. Such notice shall state with as much detail as is reasonably practicable the facts and circumstances giving rise to the Claims against the other Party.
|
(b)
|
Notwithstanding Clause 17.7(a) (
Notice and Defence
), if a Party is obligated to indemnify, Defend and hold harmless another Party (or any other person pursuant to the Agreement), lack of prompt notice shall not be a defence except to the extent prejudice has resulted from such lack of prompt notice.
|
(c)
|
The Party against whom the indemnity, Defence and hold harmless is being sought under this Agreement (the "
Indemnitor
") shall confer with the Party seeking to enforce the indemnity, Defence and hold harmless provisions (the "
Indemnitee
") concerning the Defence of any such Claims proceedings but, subject to the provisions of this Clause 17 (
Liability and Indemnity
) and any other applicable provisions of this Agreement, if the Indemnitor has assumed the full Defence of the Claims without qualification, the Indemnitor or its insurer shall retain control of the conduct of such Defence, including but not limited to the selection and management of counsel.
|
(d)
|
No Party shall effect settlement of or compromise any such Claims proceedings without having obtained the prior written consent of the other Parties. If the Indemnitee does not consent to a settlement that the Indemnitor is willing to accept, then the Indemnitor's liability shall be limited to the amount for which the lawsuit could have been settled.
|
(e)
|
If the Indemnitor has assumed the full Defence of the Claims without qualification, then the Indemnitee may, upon written notice to the Indemnitor and at the Indemnitee's sole cost and expense, select its own counsel to participate in and be present for the Defence of any such Claims proceeding, provided such counsel shall not take any action in the course of such Claims proceeding to prejudice the Indemnitor's Defence of such Claims proceeding.
|
(f)
|
Where the Indemnitor's proffered Defence is limited to the proportionate act, omission, fault, negligence or breach of duty of the Indemnitor, the Indemnitee may elect to Defend itself and obtain reimbursement of its Defence costs in proportion to the proportionate act, omission, fault, negligence or breach of duty of the Indemnitor and its Group, or reimbursement of all Defence costs if a full Defence is determined to have been owed.
|
18.
|
CREDIT SUPPORT
|
18.1
|
Lessee Credit Support
|
(a)
|
"
Lessee Credit Support
" means credit support:
|
(i)
|
in the relevant form set out in Schedule 21 (
Form of Credit Support
);
|
(ii)
|
for the Lessee Credit Support Amount, as determined in accordance with this Clause 18.1 (
Lessee Credit Support
) and as reduced by the aggregate amount of contributions made, from time to time, by the Lessee Credit Support providers, provided that, if the Lessee Credit Support has been replenished pursuant to Clauses 18.1(d) or 18.1(f) (
Lessee Credit Support
), then the amount of contributions to be deducted shall be the aggregate amount of contributions made by the Lessee Credit Support providers from the time of such replenishment until the time of the determination; and
|
(iii)
|
provided in accordance with Clause 18.1(g) or 18.1(h) (
Lessee Credit Support
) (as applicable).
|
(b)
|
The Lessee shall provide the Lessee Credit Support to the Owner, and shall maintain the Lessee Credit Support in accordance with this Clause 18 (
Credit Support
).
|
(c)
|
The Lessee Credit Support Amount shall be a sum equal to:
|
(i)
|
on and from the date that is [*****] after the date of this Agreement until the date that falls [*****];
|
(ii)
|
on and from the end of the period in Clause 18.1(c)(i) (
Lessee Credit Support
) until the date that falls [*****];
|
(iii)
|
on and from the end of the period in Clause 18.1(c)(ii) (
Lessee Credit Support
) until the date that falls [*****];
|
(iv)
|
on and from the end of the period in Clause 18.1(c)(iii) (
Lessee Credit Support
) until the date that falls [*****]; and
|
(v)
|
on and from the end of the period in Clause 18.1(c)(iv) (
Lessee Credit Support
) until such time as it reduces in accordance with Clause 18.1(e) (
Lessee Credit Support
): [*****].
|
(d)
|
If on the Commercial Operations Date the Lessee Credit Support is less than [*****], then on the Commercial Operations Date the Lessee shall procure that the Lessee Credit Support is replenished to an amount equal to [*****].
|
(e)
|
Commencing on the date which is [*****] after the Commercial Operations Date, and at the end of each complete [*****] after the Commercial Operations Date, if the current amount of the Lessee Credit Support is greater than the Required Lessee Credit Support Amount, the Lessee Credit Support Amount shall be reduced to an amount equal to the Required Lessee Credit Support Amount, where "
Required Lessee Credit Support Amount
" means the higher of:
|
(i)
|
the amount calculated as follows:
|
(ii)
|
[*****].
|
(f)
|
If the Lessee Credit Support is reduced to USD zero ($0), the Lessee may, in its sole discretion, replenish such Lessee Credit Support to an amount equal to the Lessee Credit Support Amount applicable at that time.
|
(g)
|
Subject to Clause 18.1(h) (
Lessee Credit Support
), the Lessee shall procure that the following persons shall (severally, but not joint and severally) provide the following proportionate shares of the amount of Lessee Credit Support determined in accordance with Clause 18.1(a)(ii) (
Lessee Credit Support
):
|
(i)
|
BP Exploration Operating Company Limited shall provide an amount equal to [*****] of the amount of Lessee Credit Support determined in accordance with Clause 18.1(a)(ii) (
Lessee Credit Support
); and
|
(ii)
|
Kosmos Energy Ltd. shall provide an amount equal to [*****] of the amount of Lessee Credit Support determined in accordance with Clause 18.1(a)(ii) (
Lessee Credit Support
),
|
(h)
|
The Lessee may request the Owner's consent for the Lessee Credit Support that is required to be provided and maintained by BP Exploration Operating Company Limited and Kosmos Energy Ltd. in accordance with this Agreement to be provided by another person or persons, in such proportions (severally, but not joint and severally) as the Lessee acting reasonably proposes, subject to:
|
(i)
|
the Lessee demonstrating, to the reasonable satisfaction of the Owner, that such change will not increase the credit risk to which the Owner is exposed; and
|
(ii)
|
the Owner giving its prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).
|
(i)
|
[*****]:
|
(i)
|
[*****]; or
|
(ii)
|
[*****]:
|
(A)
|
[*****]; and
|
(B)
|
[*****]:
|
(j)
|
Subject to Clause 18.1(d) (
Lessee Credit Support
) and Clause 23.4(e) (
Termination by the Owner
), and without limiting the Lessee's rights pursuant to Clause 18.1(f) (
Lessee Credit Support
), the Lessee shall have no obligation to procure the replenishment (in whole or in part) of the Lessee Credit Support where the Lessee Credit Support has been reduced to USD zero ($0) in accordance with this Agreement.
|
18.2
|
Owner Credit Support
|
(a)
|
"
Owner Credit Support
" means credit support:
|
(i)
|
in the relevant form set out in Schedule 21 (
Form of Credit Support
);
|
(ii)
|
for the Owner Credit Support Amount, as determined in accordance with this Clause 18.2 (
Owner Credit Support
) and as reduced by the aggregate amount of contributions made, from time to time, by the Owner Credit Support providers, provided that, if the Owner Credit Support has been replenished pursuant to Clauses 18.2(d) or 18.2(f) (
Owner Credit Support
), then the amount of contributions to be deducted shall be the aggregate amount of contributions made by the Owner Credit Support providers from the time of such replenishment until the time of the determination; and
|
(iii)
|
in accordance with Clause 18.2(g) or 18.2(h) (
Owner Credit Support
) (as applicable).
|
(b)
|
The Owner shall provide the Owner Credit Support to the Lessee, and shall maintain the Owner Credit Support in accordance with this Clause 18 (
Credit Support
).
|
(c)
|
The Owner Credit Support Amount shall be a sum equal to:
|
(i)
|
on and from the date that is [*****] after the date of this Agreement until the date that falls [*****];
|
(ii)
|
on and from the end of the period in Clause 18.2(c)(i) (
Owner Credit Support
) until the date that falls [*****];
|
(iii)
|
on and from the end of the period in Clause 18.2(c)(ii) (
Owner Credit Support
) until the date that falls [*****];
|
(iv)
|
on and from the end of the period in Clause 18.2(c)(iii) (
Owner Credit Support
) until the date that falls [*****]; and
|
(v)
|
on and from the end of the period in Clause 18.2(c)(iv) (
Owner Credit Support
) until such time as it reduces in accordance with Clause 18.2(e) (
Owner Credit Support
): [*****].
|
(d)
|
If on the Commercial Operations Date the Owner Credit Support is less than [*****], then on the Commercial Operations Date the Owner shall procure that the Owner Credit Support is replenished to an amount equal to [*****].
|
(e)
|
Commencing on the date which is [*****] after the Commercial Operations Date, and at the end of each complete [*****] thereafter until the date which is [*****] after the Commercial Operations Date, if the current amount of the Owner Credit Support is greater than the Required Owner Credit Support Amount, the Owner Credit Support Amount shall be reduced to an amount equal to the Required Owner Credit Support Amount, where the "
Required Owner Credit Support Amount
" means the higher of:
|
(i)
|
the amount calculated as follows:
|
(ii)
|
[*****].
|
(f)
|
If the Owner Credit Support is reduced to USD zero ($0), the Owner may, in its sole discretion, replenish such Owner Credit Support to an amount equal to the Owner Credit Support Amount applicable at that time.
|
(g)
|
Subject to Clause 18.2(h) (
Owner Credit Support
), the Owner shall procure that the following persons shall (severally, but not joint and severally) provide the following proportionate shares of the amount of Owner Credit Support determined in accordance with Clause 18.2(a)(ii) (
Owner Credit Support
):
|
(i)
|
GLNG shall provide an amount equal to seventy percent (70%) of the amount of Owner Credit Support determined in accordance with Clause 18.2(a)(ii) (
Owner Credit Support
); and
|
(ii)
|
[*****] shall provide an amount equal to thirty percent (30%) of the amount of Owner Credit Support determined in accordance with Clause 18.2(a)(ii) (
Owner Credit Support
),
|
(h)
|
The Owner may request the Lessee's consent for the Owner Credit Support that is required to be provided and maintained by GLNG and Keppel Corporation in accordance with this Agreement to be provided by another person or persons, in such proportions (severally, but not joint and severally) as the Owner acting reasonably proposes, subject to:
|
(i)
|
the Owner demonstrating, to the reasonable satisfaction of the Lessee, that such change will not increase the credit risk to which the Lessee is exposed; and
|
(ii)
|
the Lessee giving its prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).
|
(i)
|
[*****]:
|
(i)
|
[*****]; or
|
(ii)
|
[*****],
|
(A)
|
[*****]; or
|
(B)
|
[*****]:
|
(1)
|
[*****]; and
|
(2)
|
[*****]:
|
(j)
|
Subject to Clause 18.2(d) (
Owner Credit Support
) and Clause 23.2(l) (
Termination by the Lessee
), and without limiting the Owner's rights pursuant to Clause 18.2(f) (
Owner Credit Support
), the Owner shall have no obligation to procure the replenishment (in whole or in part) of the Owner Credit Support where the Owner Credit Support has been reduced to USD zero ($0) in accordance with this Agreement.
|
18.3
|
Other Security Arrangements
|
19.
|
MARITIME PROVISIONS
|
19.1
|
Health, Safety, Security and Environment
|
19.2
|
Salvage
|
19.3
|
Recovery of Sunken Items
|
19.4
|
ISPS Code
|
(a)
|
This Clause 19.4 (
ISPS Code
) makes reference to the International Code for the Security of Ships and of Port Facilities and the relevant amendments to Chapter XI of the Safety of Life at Sea Convention (the "
ISPS Code
"), in relation to the FLNG Facility only.
|
(b)
|
The Owner shall procure that both the FLNG Facility and "the Company" (as defined by the ISPS Code) shall comply with the requirements of the ISPS Code relating to the FLNG Facility and "the Company". Upon request, the Owner shall provide documentary evidence of compliance with this Clause 19.4(b) (
ISPS Code
).
|
(c)
|
The Parties agree that:
|
(i)
|
except as otherwise provided in this Agreement, loss, damage, expense or delay, caused by failure on the part of the Owner Group to comply with the requirements of the ISPS Code or this Clause 19.4 (
ISPS Code
) shall be for the Owner's account; and
|
(ii)
|
the Owner shall be proportionately relieved of its obligation to achieve the Performance Standards to the extent of any reasonably foreseeable impact of any loss of time caused by the Lessee Group's failure to comply with the ISPS Code.
|
(d)
|
Costs or expenses related to security regulations or measures required by the port facility or any relevant authority in accordance with the ISPS Code including, but not limited to, security guards, launch services, tug escorts, port security fees or taxes and inspections, for the FLNG Facility shall be for the Owner's account. All measures required by the Owner to comply with the security plan required by the ISPS Code shall be for the Owner's account.
|
(e)
|
If any Party makes any payment, which is for the other Party's account according to this Clause 19.4 (
ISPS Code
), the other Party shall indemnify the paying Party from and against such amount paid.
|
19.5
|
Pollution and Emergency Response
|
(a)
|
Each of the Owner and the Operator undertakes to exercise all due diligence to ensure that no oil, LNG or other harmful, hazardous or noxious substances of any description ("
Discharge Substance
") shall be discharged, or escape accidentally or otherwise into the environment from the FLNG Facility and that the FLNG Facility and its Crew comply with all international, national or state oil and air pollution Laws, conventions or regulations ("
Pollution Legislation
") applying in, or to, international waters and the territorial waters of all of those countries where the FLNG Facility may be present at any time. Each of the Owner and the Operator also undertakes to produce evidence satisfactory to the Lessee demonstrating the Owner's and the Operator's (as applicable) compliance with such financial responsibility requirements as may exist under any Pollution Legislation.
|
(b)
|
If an escape or discharge of a Discharge Substance into the environment occurs from the FLNG Facility and causes or threatens to cause pollution damage, or when there is the threat of an escape or discharge of a Discharge Substance into the environment, then upon notice to the Owner or the Operator (as applicable), the Lessee shall have the right (but shall not be obliged) to place on board the FLNG Facility and/or have in attendance at the incident one or more of the Lessee's representatives to observe the measures being taken by the Owner or the Operator (as applicable) and/or national or local authorities or their respective servants, agents or contractors to prevent or minimise pollution damage and to provide advice, equipment or manpower or undertake such other measures as are permitted under applicable Law and as the Lessee believes are reasonably necessary to prevent or minimise such pollution damage or to remove the threat of an escape or discharge of a Discharge Substance.
|
(c)
|
The FLNG Facility shall have on board all necessary certificates and other documents with respect to pollution prevention and control, including but not limited to any response plan, certificate of insurance, and other certificates and documents to meet the requirements of competent international, national, state and local authorities, including under any applicable international conventions, if and when in force, and any compulsory contribution funds thereunder.
|
(d)
|
The FLNG Facility shall also have on board any necessary certificates of financial responsibility in respect to pollution.
|
(e)
|
The obligations set out in this Clause 19.5 (
Pollution and Emergency Response
) are in addition to any duties of the Lessee, the Owner or the Operator whether under this Agreement, applicable Law or under any international conventions in respect of, or statutory obligations which state or local authorities may impose on, the FLNG Facility or the Owner or the Operator in the event of, any accident or incident, including instructions and procedures cited in contingency and oil spill plans.
|
20.
|
INTELLECTUAL PROPERTY
|
20.1
|
Exclusion of transfer or license
|
20.2
|
Limited exceptions
|
(a)
|
The Owner grants, or shall procure the grant, to the Lessee Group and/or its subcontractors a non-transferrable fully paid up, non-exclusive, irrevocable, worldwide, royalty free licence under any intellectual property rights owned or controlled by the Owner Group during the Term to use the FLNG Facility Information solely to the extent reasonably necessary for receiving the Work, the Operating Services and otherwise complying with their respective obligations under this Agreement.
|
(b)
|
The Lessee grants to the Owner Group a non-transferrable fully paid up, non-exclusive, irrevocable, worldwide, royalty free licence under any intellectual property rights owned or controlled by the Lessee Group during the Term to use the GTA Facility Information solely to the extent reasonably necessary for performing the Work, the Operating Services and otherwise complying with their respective obligations under this Agreement.
|
(c)
|
The Owner grants to the Lessee Group and/or its subcontractors, or shall procure the direct grant to the Lessee Group and/or its subcontractors of, a fully paid-up, non-exclusive, irrevocable, worldwide, royalty free licence under any applicable intellectual property rights, whether
owned or controlled by the Owner Group or any other person, solely to the extent reasonably necessary to construct, commission, operate and maintain the FLNG Facility in accordance with this Agreement and provided always that:
|
(i)
|
the licence to construct and commission the FLNG Facility shall apply only where any subcontract is novated to the Lessee pursuant to Clause 3.5 (
Subcontracting
) or any Conversion Contract is novated to the Lessee pursuant to Clause 7.1 (
Construction Parties
); and
|
(ii)
|
the licence to operate and maintain the FLNG Facility shall apply only in the circumstances described in Clause 20.2(c)(i) (
Limited exceptions
) or after the first occurring of the following events:
|
(A)
|
in the event of termination of this Agreement following Requisition of the FLNG Facility, upon payment of the sums due under Clause 17.4(b) (
Requisition of FLNG Facility
); or
|
(B)
|
the exercise of any bare boat charter rights pursuant to Clause 23.9 (
Bare Boat Charter
); or
|
(C)
|
any exercise of the purchase option contemplated by Clause 28.3 (
Purchase of the FLNG Facility
).
|
(d)
|
The licence granted to the Lessee Group pursuant to Clause 20.2(c) (
Limited exceptions
) includes the right to grant sub-licenses to any person contracted to perform work for the Lessee Group in relation to the construction, commissioning, operation and/or maintenance of the FLNG Facility.
|
(e)
|
In the event of the novation of any subcontract to the Lessee pursuant to Clause 3.5 (
Subcontracting
) and/or the novation any Conversion Contract to the Lessee pursuant to Clause 7.1 (
Construction Parties
) the Owner and/or Operator shall promptly on request and without additional cost make available to the Lessee Group such FLNG Facility Information as is reasonably required to complete the construction and commissioning of the FLNG Facility in accordance with the relevant subcontract or Conversion Contract.
|
(f)
|
In the event of any of the circumstances described in Clauses 20.2(c)(i) and 20.2(c)(ii) (
Limited exceptions
) arising, the Owner and/or Operator shall promptly on request and without additional cost make available to the Lessee Group such FLNG Facility Information as is reasonably required to enable the Lessee Group to operate and maintain the FLNG Facility.
|
20.3
|
Indemnity
|
(a)
|
The Owner and the Operator warrant that they shall not breach any intellectual property rights of any other person in their performance of the Work or the Operating Services or otherwise in connection with this Agreement.
|
(b)
|
The Owner shall Defend, indemnify and hold harmless the Lessee Group from and against any Claims arising out of or in connection with any infringement or alleged infringement of any intellectual property rights of any other person arising from or in connection with:
|
(i)
|
the performance of the Work and/or the Operating Services; or
|
(ii)
|
the possession, use or operation of the FLNG Facility following:
|
(A)
|
novation of any subcontract to the Lessee pursuant to Clause 3.5 (Subcontracting) and/or the novation any Conversion Contract to the Lessee pursuant to Clause 7.1 (Construction Parties); or
|
(B)
|
Requisition of the FLNG Facility, upon termination of this Agreement following payment of the sums due under Clause 17.4(b) (
Requisition of FLNG Facility
); or
|
(C)
|
the exercise of any bare boat charter rights pursuant to Clause 23.9 (
Bare Boat Charter
); or
|
(D)
|
any exercise of the purchase option contemplated by Clause 28.3 (
Purchase of the FLNG Facility
),
|
21.
|
INSURANCE
|
21.1
|
Owner Insurance
|
(a)
|
The Owner shall be responsible for obtaining and maintaining with reputable underwriters:
|
(i)
|
Employers Liability, Workmen's Compensation and Occupational Disease Insurance, including an Alternative Employer endorsement (where applicable) to the minimum value required by any applicable Laws. Where a limit of Employers Liability can be purchased or stated it should be in an amount not less than USD ten million ($10,000,000) per occurrence or the legal minimum, whichever is the greater;
|
(ii)
|
Comprehensive General Liability Insurance for any incident or series of incidents covering the operations of the Owner in the performance of the Work, in an amount not less than USD ten million ($10,000,000) per occurrence;
|
(iii)
|
Builders All Risks Insurance to include all subcontractors of any tier for all risks of loss or damage in respect of the FLNG Facility (and the Golar Gimi pre-conversion) and all Equipment and appurtenances whether at the shipyard of Keppel Shipyard or Keppel Shipyard's subcontractors' or suppliers' premises (unless such risk at subcontractors' or suppliers' premises is covered to an equivalent extent by the subcontractors' or suppliers' own insurance) or in transit or elsewhere and during launching, trial trips and gas trials, tie-in work and all other testing and commissioning activities as appropriate (such Builders All Risk Insurance required only for the period prior to the Commercial Operations Date);
|
(iv)
|
Hull and Machinery Insurance in an amount not less than the declared value of the FLNG Facility, including war risk coverage and, to the extent not covered by the Protection and Indemnity Insurance described in Clause 21.1(a)(v) (
Owner Insurance
), collision liability in respect of the FLNG Facility;
|
(v)
|
Protection and Indemnity Insurance in respect of the FLNG Facility with a Protection and Indemnity Club which is a member of the International Group of Protection and Indemnity Clubs, including wreck and debris removal, crew liability, third party injury and property damage liability and pollution liability (including oil pollution), including collision liability and towage liability coverage in an amount not less than USD one hundred and fifty million ($150,000,000), and pollution coverage in an amount not less than the standard cover available from the International Group of Protection and Indemnity Clubs (currently USD one billion ($1,000,000,000);
|
(vi)
|
additional insurance required by any applicable Law; and
|
(vii)
|
such other additional insurance as the Parties agree is reasonably necessary and available on reasonable commercial terms.
|
21.2
|
Operator Insurance
|
(a)
|
The Operator shall be responsible for obtaining and maintaining with reputable underwriters:
|
(i)
|
Employers Liability, Workmen's Compensation and Occupational Disease Insurance, including an Alternative Employer endorsement (where applicable) to the minimum value required by any applicable Laws. Where a limit of Employers Liability can be purchased or stated it should be in an amount not less than USD ten million ($10,000,000) per occurrence or the legal minimum, whichever is the greater;
|
(ii)
|
Comprehensive General Liability Insurance for any incident or series of incidents covering the operations of the Operator in the performance of the Operating Services, in an amount not less than USD ten million ($10,000,000) per occurrence;
|
(iii)
|
additional insurance required by any applicable Law; and
|
(iv)
|
such other additional insurance as the Parties agree is reasonably necessary and available on reasonable commercial terms.
|
(b)
|
The Parties agree that the insurances listed in Clause 21.2 (
Operator Insurance
) shall, for the purposes of Clause 9.5 (
Work Programme and Budget
), only be reimbursed under the Work Programme and Budget to the extent such insurances are:
|
(i)
|
required by applicable Law; and/or
|
(ii)
|
for the benefit of the Lessee Group.
|
21.3
|
Insurance Policies
|
(a)
|
The Owner and the Operator shall name each other and the Lessee Group as additional insureds and shall ensure each relevant underwriter waives any right of recourse against the Operator, the Owner and the Lessee Group including in particular subrogation rights against the Operator, the Owner and the Lessee Group, in each case in respect of each insurance policy, irrespective of the negligence or breach of duty of any member of the Lessee Group.
|
(b)
|
In respect of any claim arising under the insurance policies provided by the Owner's or the Operator's insurers, the Owner and the Operator shall ensure that each relevant underwriter waive any right of recourse against any Other Contractor Group, including in particular subrogation rights against such Other Contractor Group, irrespective of the negligence or breach of duty of any member of such Other Contractor Group, on the express understanding that they shall only apply where the Other Contractor Group's underwriters have provided reciprocal waivers of rights of recourse including subrogation rights against the Owner Group and only from such time as such Other Contractor Group's underwriters become bound by such reciprocal waivers of rights of recourse including subrogation rights and only for the duration they remain bound by such reciprocal waivers.
|
(c)
|
The Owner and the Operator shall provide to the Lessee evidence of all insurance that the Owner and/or the Operator is required to take out and maintain in accordance with this Clause 21 (
Insurance
) at least once each Contract Year. The receipt of such information shall not impose any obligation on the Lessee.
|
21.4
|
Subcontractor Insurances
|
22.
|
TAXES
|
22.1
|
Mauritanian and Senegalese Taxes
|
(a)
|
that all Mauritanian and Senegalese Taxes (and, for the avoidance of doubt, references in this Clause 22 (
Taxes
) to Senegalese and/or Mauritanian Taxes shall include any Taxes imposed in connection with the GTA Fiscal Regime) properly and necessarily incurred by the Owner in performing the Work in accordance with this Agreement, shall be to the account of the Lessee and the Lessee shall indemnify the Owner for any such Taxes (as well as any Taxes connected with the Work assessed or imposed on the Owner in respect of which the Lessee or one of its Affiliates is Primarily Liable or to the extent that any such assessment or imposition made in respect of such Taxes arises as a result of the Lessee's breach of this Agreement) in a timely manner as such Taxes fall due but excluding any such Taxes (and any fines, penalties and interest thereon) incurred by the Owner arising out of the Owner's breach of this Agreement;
|
(b)
|
that all Mauritanian and Senegalese Taxes properly and necessarily incurred by the Operator in performing the Operating Services in accordance with this Agreement shall be to the account of the Lessee and shall be reflected within costs pursuant to Clause 9.5 (
Work Programme and Budget
) and paid by the Lessee in accordance with Clause 13.2(b) (
Obligation to pay Dayrate
) and Clause 9.5(h) (
Work Programme and Budget
), but excluding any such Taxes (and any fines, penalties and interest thereon) incurred by the Operator arising out of the Operator's breach of this Agreement; and
|
(c)
|
[*****].
|
22.2
|
General Taxes
|
(a)
|
Subject to Clause 22.1 (
Mauritanian and Senegalese Taxes
), the Owner shall be solely responsible for and shall bear and pay all Taxes connected with the Work, and the Operator shall be solely responsible for and shall bear and pay all Taxes connected with the Operating Services, in each case assessed or imposed on the Owner or the Operator (as applicable) (including Taxes connected with Personnel but excluding Taxes in respect of which the Lessee or one of its Affiliates is Primarily Liable or to the extent that any such assessment or imposition made in respect of such Taxes arises as a result of the Lessee's breach of this Agreement), and shall fulfil all administrative and registration and de-registration requirements, maintain proper accounting records, and properly file all necessary documents. The Owner and the Operator shall comply with all applicable Laws, regulations and directives concerning all legal, company or branch office tax registration and de-registration requirements. Each of the Owner and the Operator shall use reasonable endeavours to procure that each of its respective subcontractors of any tier shall bear and pay all Taxes connected with the Work or the Operating Services assessed or imposed upon such subcontractor (including Taxes connected with Personnel) and that such subcontractor shall fulfil all administrative and registration and de-registration requirements, maintain proper accounting records, and properly file all necessary documents.
|
(b)
|
Subject to Clause 22.1 (
Mauritanian and Senegalese Taxes
), the Owner hereby indemnifies, Defends and holds harmless the Lessee Group from and against all Claims whatsoever connected with any assessment or imposition made in respect of all or any Taxes upon the Owner and/or the Operator and/or any subcontractor of any tier connected with the Work or the Operating Services (as applicable), together with any costs of compliance, except Taxes in respect of which the Lessee or one of its Affiliates is Primarily Liable or to the extent that any such assessment or imposition made in respect of such Taxes arises as a result of the Lessee's breach of this Agreement. The Lessee may offset any amounts due from the Owner under this indemnity from any payments the Lessee is due to make to the Owner and/or the Operator under this Agreement. Where Taxes connected with the Operating Services are assessed or imposed on the Operator in respect of which the Lessee or one of its Affiliates is Primarily Liable or to the extent that any such assessment or imposition made in respect of such Taxes arises as a result of the Lessee's breach of this Agreement, the Operator shall invoice the Lessee and the Lessee shall pay to the Operator an amount equal to such Taxes paid or to be paid by the Operator together with any costs of compliance, in accordance with Clause 14 (
Invoicing
).
|
(c)
|
Each of the Owner, the Operator and the Lessee shall, upon request, supply (and, in the case of the Owner and the Operator, shall use reasonable endeavours to procure that its respective subcontractors of any tier supply) to the Owner, the Operator and/or the Lessee (as applicable), such information (including documentary information) connected with the Work or the Operating Services (as applicable) as may be required by the Owner, the Operator or the Lessee (as applicable) for any of the following purposes to enable the Owner, the Operator or the Lessee (as applicable) to:
|
(i)
|
comply with the lawful demand or requirement for such information by any Government Authority;
|
(ii)
|
conduct, Defend, negotiate, or settle any Claim relating to Taxes in respect of which it may be liable in connection with this Agreement, whether or not such Claim shall have become the subject of arbitration or judicial proceedings; or
|
(iii)
|
make any application (including, but without limitation, any Claim for any allowances or relief) or representation connected with, or to contest any assessment on, or its liability to any Taxes.
|
(d)
|
Each of the Owner and the Operator shall, upon request of the Lessee, make available to the Lessee any of their respective tax returns as may be required by the Lessee for the purposes of calculating the adjustment to the CE of the Dayrate pursuant to Clause 22.3 (
GTA Fiscal Regime
).
|
(e)
|
The obligations set out in Clause 22.2(c) (
General Taxes
) shall continue for a period of six (6) years (or such longer period as any applicable Law may require) from the end of the Term. Each of the Owner and the Operator shall retain and shall use reasonable endeavours to ensure that its respective subcontractors of any tier retain, all information and documents connected with its activities under or pursuant to this Agreement as shall enable the Owner and the Operator to comply with its above obligations.
|
(f)
|
Where, under the provisions of any Laws for the time being in force, the Lessee is required to deduct any amount, whether as Tax or howsoever called, the Lessee shall without further notification to the Owner or the Operator deduct the specified amount from any amount payable to the Owner or the Operator (as appropriate). The Lessee shall pay over or deal with any amount so deducted in accordance with the provisions of the relevant Laws or regulations providing for the deductions. Where the Lessee makes any such deduction or withholding, the Lessee shall, within a reasonable time upon receipt of the official receipt(s), or other satisfactory verification in respect of such deduction or withholding from the relevant authority, submit same to the Owner and/or the Operator (as appropriate). Upon expiry of the relevant year of withholding, the Owner or the Operator (as appropriate) shall advise the Lessee of any official receipt(s) which remain outstanding for the aforesaid period whereupon the Lessee shall either provide satisfactory verification documentation evidencing payment of such deduction or shall provide the official receipt(s) if received by the Lessee.
|
(g)
|
Notwithstanding the provisions of Clause 22.1 (
Mauritanian and Senegalese Taxes
) and subject to the provisions of Schedule 6 (
Responsibility for Compliance
), the Owner and the Operator shall be responsible for obtaining all the necessary customs clearances, or other Approvals required for moving Personnel, Plant and Equipment, including the FLNG Facility, into and out of any jurisdiction. The Lessee will, if so requested by the Owner or the Operator, assist the Owner or the Operator (as applicable) to the extent reasonably necessary with regard to the obtaining of import assistance, or other Approvals required for moving Personnel, Plant and Equipment, including the FLNG Facility, into and out any jurisdiction.
|
(h)
|
In the event the Owner or the Operator claims to be exempted from any statutory deductions, it shall inform the Lessee and provide any necessary documentation to support its case, including a valid certificate of exemption from the relevant Government Authority, if applicable. The Lessee shall proceed to deduct taxes as required by Law and pursuant to Clause 22.2(f) (
General Taxes
), until the provision of such exemption certificate by the Owner or the Operator (as appropriate).
|
(i)
|
The Owner and the Operator shall import or export Plant and Equipment, including the FLNG Facility, in compliance with any and all applicable Laws, including any mandatory security guidelines or policies applicable in each jurisdiction where such import and/or export activity occurs. Subject to Clause 22.1 (
Mauritanian and Senegalese Taxes
), the Owner and the Operator (as applicable) shall be solely responsible for and shall bear and pay all Customs Duties (and any fines, penalties and interest thereon) and for all import and/or export declarations connected with the Work and the Operating Services (as applicable). The Owner and the Operator shall be solely responsible for all import and/or export declarations connected with the Work and the Operating Services. The Owner and the Operator will make use of duty preference and duty relief programmes if the imported products are eligible, and shall use reasonable endeavours to comply with all requirements of said programmes, including the timely submission of accurate supporting documentation and re-export of the relevant items if appropriate. In situations where the Lessee holds a license, permit or exemption pursuant to a duty preference or relief programme that is allowable when the Lessee is consignee, the Owner and the Operator shall use reasonable care to inquire about, identify and use any such license, program or permit.
|
(j)
|
Where this Agreement requires the Lessee or any member of the Lessee Group to import or export Plant and Equipment, the Owner and/or the Operator shall, upon request, assist the Lessee to comply with any and all applicable Laws, including any mandatory security guidelines or policies applicable in each jurisdiction where such import and/or export activity occurs, obtaining of import assistance, or other governmental authorizations required for moving Plant or Equipment into and out of any jurisdiction. The Owner and the Operator shall provide any and all such information (including copies of documentary information) that is reasonable for them to provide and is in their control as is necessary or deemed necessary by the Lessee to ensure compliance with the aforementioned Laws, guidelines, and policies. If as a result of the Owner or the Operator's act or omission the Lessee or any member of the Lessee Group incurs Customs Duties, including fines, penalties and interest, or other costs which otherwise would not have been due, the Owner shall indemnify and keep indemnified the Lessee Group in respect of such Customs Duties and fines, penalties and interest. Subject to Clause 22.1 (
Mauritanian and Senegalese Taxes
), all costs arising in connection with the import and/or export of the Operator's Equipment and/or consumable materials for use in connection with the Work and/or the Operating Services shall be for the account of the Operator.
|
(k)
|
The Operator shall submit to the Lessee a Sales Tax invoice for any payments due under this Agreement which shall properly account for and include and itemise all such Sales Taxes and the Lessee shall pay such Sales Taxes in compliance with the applicable Laws. The Operator shall pay over to the relevant Governmental Authorities any amounts of Sales Tax properly invoiced in accordance with the relevant Law and regulations in force at the time of making the supply. The Lessee shall be entitled to withhold any payments due under this Agreement until such time as the Lessee receives a valid Sales Tax invoice.
|
(l)
|
If the Operator and the Lessee do not agree as to the Sales Tax due in respect of any payment under this Agreement, Clause 14.5 (
Disputed Invoices
) shall apply and the Operator shall seek a written ruling from the relevant Government Authority, disclosing all relevant information necessary to enable the Government Authority to rule as to the Sales Tax liability in respect of such payment. The Lessee shall have the right to review and approve (such approval not to be unreasonably withheld, conditioned or delayed) all documentation to be submitted to the Government Authority for such purpose prior to submission. A copy of the resultant ruling shall promptly be disclosed by the Operator to the Lessee.
|
(m)
|
If as a result of enquiries by a Government Authority the Parties become aware of a Sales Tax adjustment then the Operator shall within thirty (30) Days issue a Sales Tax invoice. The Operator will promptly pay to the Lessee any amount overpaid, and the Lessee will pay to the Operator any amount underpaid.
|
(n)
|
If any Party is entitled to payment of any costs or expenses by way of reimbursement or indemnity, the payment must exclude any part of that cost or expense which is attributable to Sales Tax for which that Party or the representative member of any Sales Tax group of which that Party is a member is entitled to recover a credit or repayment in respect thereof.
|
(o)
|
The Owner and the Operator shall use reasonable endeavours, in relation to the performance of this Agreement, to apply all tax benefits, reductions and reliefs by all legally available means conferred by applicable legislation and applicable double tax conventions, and each of the Owner and the Operator shall use reasonable endeavours to procure that its respective subcontractors of any tier shall also seek to apply such legally available reductions, benefits and reliefs.
|
(p)
|
The Owner or the Operator (as applicable) shall, as soon as reasonably practicable after it becomes aware, inform the Lessee of any change in the Owner or the Operator's tax residence, domicile, permanent establishment, tax nexus, tax registration or similar status change. The Lessee shall be entitled to vary the administration of this Agreement as required by Law as a consequence thereof. Notwithstanding the provisions of Clause 22.1 (
Mauritanian and Senegalese Taxes
) and Clause 27.6(b) (
Ownership of the Operator
), the Lessee shall be under no obligation to compensate the Owner and/or the Operator for additional Taxes arising as a consequence of any change in the Owner or the Operator's tax residence, domicile, permanent establishment, tax nexus, tax registration or similar status change, other than additional Mauritanian or Senegalese Taxes (including any Taxes imposed in connection with the GTA Fiscal Regime) but only to the extent such change directly resulted from:
|
(i)
|
a change in Mauritanian or Senegalese Law or in the GTA Fiscal Regime; or
|
(ii)
|
an act or omission of the Lessee or one of its Affiliates that has a direct adverse effect on the Senegalese, Mauritanian or GTA Fiscal Regime Tax position of the Owner and/or Operator (as applicable).
|
(q)
|
The Parties acknowledge and agree that the introduction, initial imposition and coming into force of the GTA Fiscal Regime and the Owner and/or Operator's initial submission to it and the acts preparatory to the Owner and/or the Operator becoming subject to the GTA Fiscal Regime (including any related registration requirements) (the "
GTAFR Introduction
") will not:
|
(i)
|
constitute a change in the Owner or the Operator's tax residence, domicile, permanent establishment, tax nexus, tax registration or similar change for the purposes of Clause 22.2(p) (
General Taxes
);
|
(ii)
|
permit the Lessee to vary the administration of this Agreement under Clause 22.2(p) (
General Taxes
); and
|
(iii)
|
constitute a change to the GTA Fiscal Regime for the purposes of Clause 22.3 (
GTA Fiscal Regime
).
|
22.3
|
GTA Fiscal Regime
|
(a)
|
the governments of the States agree a change to the fiscal regime for the joint development and exploitation of the Unit Area ("
GTA Fiscal Regime
") such change having the force of law; and
|
(b)
|
as a direct result of such change to the GTA Fiscal Regime, the Owner and/or the Operator suffers (or will suffer) an additional Tax burden or enjoys (or will enjoy) an additional Tax benefit not reflected in the Nominal Set Rate or Adjusted Nominal Set Rate (as applicable),
|
22.4
|
Failure to Prevent Criminal Facilitation of Tax Evasion
|
(a)
|
Each of the Owner and the Operator shall not engage in any activity, practice or conduct, or omit to do any such act, which would constitute a UK or foreign tax facilitation offence under the Criminal Finances Act 2017.
|
(b)
|
Each of the Owner and the Operator shall ensure that any person associated with them that is performing the Work or Operating Services in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Owner and the Operator in Clause 22.4(a) (
Failure to Prevent Facilitation of Tax Evasion
).
|
(c)
|
Each of the Owner and the Operator shall implement and maintain policies and procedures which are reasonable to prevent the facilitation of tax evasion offences as described in the Criminal Finances Act 2017, and ensure compliance with this Clause 22.4 (
Failure to Prevent Facilitation of Tax Evasion
).
|
23.
|
SUSPENSION AND TERMINATION
|
23.1
|
Suspension by Lessee
|
(a)
|
if notice of Suspension for Convenience is given during the Commissioning Period, the Lessee shall pay to the Owner compensation in accordance with Clause 7.12(f) (
Commissioning Period
); or
|
(b)
|
if notice of Suspension for Convenience is given during the Lease Period, the Normal Dayrate shall apply as adjusted in accordance with Clause 13.8(c)(iii) (
Availability and Capacity Performance
),
|
23.2
|
Termination by the Lessee
|
(a)
|
the Owner or the Operator fails to effect or maintain any of the insurances required under Clause 21 (
Insurance
) and such failure persists for a period of [*****];
|
(b)
|
the Owner is in breach of its obligations under Clause 18.2(b) (
Owner Credit Support)
and such failure persists for a period of [*****];
|
(c)
|
the Owner fails to adhere to applicable Classification Society requirements which has resulted in, or could reasonably be expected to lead to, a loss of registration of the FLNG Facility and such failure persists for a period of [*****];
|
(d)
|
the Owner or the Operator fails to make any payment in excess of:
|
(i)
|
prior to the Commercial Operations Date, [*****]; and
|
(ii)
|
on and from the Commercial Operations Date, [*****],
|
(e)
|
the total amount of Daily LDs that:
|
(i)
|
have been paid to the Lessee; and/or
|
(ii)
|
are due and payable to the Lessee,
|
(f)
|
an Insolvency Event occurs (or, in the reasonable opinion of the Lessee, is reasonably likely to occur) in relation to:
|
(i)
|
the Owner;
|
(ii)
|
the Operator;
|
(iii)
|
one or more of the Owner's credit support providers; or
|
(iv)
|
subject to Clause 23.7 (
Key Contractor Insolvency Cure Periods
) and prior to the Commercial Operations Date, a Key Contractor (in its capacity as such);
|
(g)
|
a right to terminate contemplated in this Agreement for a prolonged FM Event by Clause 15 (
Force Majeure
) arises;
|
(h)
|
a Conversion Contract terminates without the Lessee's prior written consent;
|
(i)
|
there is an actual total loss of the FLNG Facility, or any other event which, in the opinion of the Owner's insurer(s) under hull and machinery policies, renders the FLNG Facility to be a constructive, compromised or arranged total loss for the purposes of such policies;
|
(j)
|
the FLNG Facility is on Zero Capital Dayrate for a period of [*****];
|
(k)
|
the Owner or the Operator breaches any of its obligations under Clause 31 (
Business Principles
);
|
(l)
|
the Owner Credit Support has been reduced to [*****] and the Owner has not replenished, in its sole discretion, the Owner Credit Support in accordance with Clause 18.2(f) (
Owner Credit Support
)
within [*****] after the date that the Owner Credit Support has been reduced to [*****];
|
(m)
|
the Lessee completes the purchase of the FLNG Facility in accordance with Clause 28.3 (
Purchase of the FLNG Facility
);
|
(n)
|
the Owner or Operator assigns, novates or transfers all or part of its rights or obligations under this Agreement, or is subject to a Change of Control, and does not obtain the prior written consent of the Lessee to such assignment, novation or transfer, or Change of Control, in accordance with Clause 27 (
Assignment and Change of Control
); or
|
(o)
|
the Owner fails to implement the actions the subject of the Independent Expert's determination within a reasonable time frame (having regarding to the nature of the actions) pursuant to Clause 7.5(c)(ii)(C) (
Review-points
).
|
23.3
|
Termination for Owner or Operator Default
|
(a)
|
Subject to Clause 23.2 (
Termination by the Lessee
), if the Owner or the Operator is in breach of any of its material obligations under this Agreement, or any of its representations under Clauses 16.1 (
Owner's Representations and Warranties
) or 16.2 (
Operator's Representations and Warranties
) (as applicable) is incorrect or misleading in any material way, then the Lessee may, subject to providing a notice in accordance with Clause 23.3(b) (
Termination for Owner or Operator Default
) and the other requirements set out in this Clause 23.3 (
Termination for Owner or Operator Default
) terminate this Agreement.
|
(b)
|
Upon becoming aware of any such breach by either the Owner or the Operator of one or more of its material obligations under this Agreement or that any representation is incorrect or misleading in any material respect, the Lessee may give notice to the Owner and Operator setting out full particulars of the relevant breach or misrepresentation ("
Notice of Default
").
|
(c)
|
Within [*****] of the Lessee providing a Notice of Default, the senior management of the Parties shall arrange a convenient date (which, in any event, shall be within [*****] of receipt of the Lessee's Notice of Default or such other period as may be agreed by the Parties acting reasonably) to meet and discuss the nature and scope of the breach or misrepresentation set out in the Notice of Default with a view to agreeing any immediate action required to remedy or mitigate such breach and/or any matters to be taken into account by the Parties in formulating a remedial action plan under Clause 23.3(d) (
Termination for Owner or Operator Default
).
|
(d)
|
Within [*****] (or such other period as may be agreed by the Parties acting reasonably) of the senior management of the Parties meeting in accordance with Clause 23.3(c) (
Termination for Owner or Operator Default
), representatives of the Parties, together with any credit support providers (as required), shall meet and discuss the development of a remedial action plan in response to the breach or misrepresentation set out in the Notice of Default.
|
(e)
|
If:
|
(i)
|
senior management of the Owner and/or the Operator fail to meet with senior management of the Lessee in accordance with Clause 23.3(c) (
Termination for Owner or Operator Default
) (other than to the extent such failure was caused by or attributable to the Lessee);
|
(ii)
|
the Owner or the Operator (as relevant) fails to commence taking steps to remedy the breach or misrepresentation set out in the Notice of Default within [*****] of the Parties agreeing a remedial action plan under Clause 23.3(d) (
Termination for Owner or Operator Default
); or
|
(iii)
|
the breach or misrepresentation set out in the Notice of Default has not been remedied within [*****] (or such other period as may be reasonable given the nature of the breach or misrepresentation, such period not to exceed [*****]) of the Lessee providing the Notice of Default,
|
23.4
|
Termination by the Owner
|
(a)
|
the Lessee is in breach of its obligations under Clause 18.1(b) (
Lessee Credit Support
) and such failure persists for a period of [*****];
|
(b)
|
the Lessee fails to make any payment in excess of:
|
(i)
|
prior to the Commercial Operations Date, [*****]; and
|
(ii)
|
on and from the Commercial Operations Date, [*****],
|
(c)
|
the total amount of Standby Dayrate (together with any Bullet Payment) that:
|
(i)
|
has been paid to the Owner; and/or
|
(ii)
|
is due and payable to the Owner,
|
(d)
|
an Insolvency Event occurs (or, in the reasonable opinion of the Owner, is reasonably likely to occur) in relation to the Lessee or one or more of the Lessee's credit support providers; or
|
(e)
|
the Lessee Credit Support has been reduced to [*****] and the Lessee has not replenished, [*****], the Lessee Credit Support in accordance with Clause 18.1(f) (
Lessee Credit Support
)
within [*****] after the date that the Lessee Credit Support has been reduced to [*****].
|
23.5
|
[*****]
|
(a)
|
[*****]:
|
(i)
|
[*****]; or
|
(ii)
|
[*****].
|
(b)
|
[*****].
|
(c)
|
[*****].
|
(d)
|
[*****].
|
(e)
|
[*****]:
|
(i)
|
[*****]; or
|
(ii)
|
[*****],
|
23.6
|
Cure Periods
|
(a)
|
Notwithstanding Clause 23.2(f) (
Termination by the Lessee
), the Lessee may not exercise its right to terminate this Agreement due to an Insolvency Event occurring (or, in the reasonable opinion of the Lessee, being reasonably likely to occur) in relation to one or more of the Owner Credit Support providers without giving the Owner at least [*****] notice of its intention to do so. If an Insolvency Event occurs (or, in the reasonable opinion of the Lessee, is reasonably likely to occur), in relation to one or more of the Owner Credit Support providers, the Lessee shall have no right to terminate this Agreement with respect to such Insolvency Event if the Owner:
|
(i)
|
gives notice to the Lessee that it will procure the required credit support from another person of sufficient standing in accordance with the provisions of Clause 18 (
Credit Support
) within [*****] of receipt of notice from the Lessee; and
|
(ii)
|
procures the required credit support from such other person in accordance with the provisions of Clause 18 (
Credit Support
) within a further [*****].
|
(b)
|
Subject to Clause 23.6(c) (
Cure Periods
) but notwithstanding Clause 23.4 (
Termination by the Owner
), the Owner may not exercise its right to terminate this Agreement due to a reason in Clause 23.4 (
Termination by the Owner
) (other than Clause 23.4(d) (
Termination by the Owner
) to which Clause 23.6(c) (
Cure Periods
)
applies) without giving the Lessee at least [*****] notice of its intention to do so and the Owner shall have no right to terminate this Agreement with respect such default if one or more Co-venturers gives notice prior to termination of this Agreement:
|
(i)
|
requesting the Owner not to terminate this Agreement;
|
(ii)
|
acknowledging that it or they will assume all the Lessee's obligations under this Agreement; and
|
(iii)
|
undertaking to pay to the Owner and the Operator any and all undisputed amounts due under this Agreement now and in the future.
|
(c)
|
Notwithstanding Clause 23.4(d) (
Termination by the Owner
), the Owner may not exercise its right to terminate this Agreement due to an Insolvency Event occurring (or, in the reasonable opinion of the Owner, being reasonably likely to occur) in relation to the Lessee or one or more of the Lessee Credit Support providers without giving the Lessee at least [*****] notice of its intention to do so. If an Insolvency Event occurs (or, in the reasonable opinion of the Owner, is reasonably likely to occur), in relation to:
|
(i)
|
the Lessee, then the Owner shall have no right to terminate this Agreement with respect such Insolvency Event if one or more Co-venturers gives notice prior to termination of this Agreement:
|
(A)
|
requesting the Owner not to terminate this Agreement;
|
(B)
|
acknowledging that it or they will assume all the Lessee's obligations under this Agreement; and
|
(C)
|
undertaking to pay to the Owner and the Operator any and all amounts due under this Agreement now and in the future, and such Co-venturer provides a deed of novation duly executed by the relevant Co-venturer(s) and by or on behalf of the Lessee, which shall be substantially in the form of deed of novation in Schedule 23 (
Form of Deed of Novation
) within [*****] of receipt of notice under Clause 23.6(c)(i) (
Cure Periods
) (or such longer period as the Parties agree, acting reasonably); or
|
(ii)
|
one or more of the Lessee Credit Support providers, then the Owner shall have no right to terminate this Agreement with respect such Insolvency Event if the Lessee:
|
(A)
|
gives notice that it will procure the required credit support from another person in accordance with Clause 18 (
Credit Support
) within [*****] of receipt of notice from the Owner; and
|
(B)
|
procures the required credit support from such other person in accordance with Clause 18 (
Credit Support
) within a further [*****].
|
(a)
|
Notwithstanding Clause 23.2(f)(iv) (
Termination by the Lessee
), the Lessee may not exercise its right to terminate this Agreement due to an Insolvency Event occurring (or, in the reasonable opinion of the Lessee, being reasonably likely to occur) in relation to one or more of the Key Contractors other than GLNG without giving the Owner at least [*****] notice of its intention to do so and setting out the basis upon which it has formed the good faith view that an Insolvency Event has occurred (or, in the reasonable opinion of the Lessee, being reasonably likely to occur) in relation to one or more of the Key Contractors ("
Key Contractor Insolvency Event Notice
").
|
(b)
|
Within [*****] of the Lessee providing a Key Contractor Insolvency Event Notice, the senior management of the Parties shall arrange a convenient date (which, in any event, shall be within [*****] of receipt of the Lessee's Key Contractor Insolvency Event Notice or such other period as may be agreed by the Parties acting reasonably) to meet and discuss the basis for the Lessee's good faith view that an Insolvency Event has occurred (or, in the reasonable opinion of the Lessee, being reasonably likely to occur) in relation to one or more of the Key Contractors with a view to agreeing any immediate action required to remedy or mitigate the circumstances and/or any matters to be taken into account by the Parties in formulating a remedial action plan under Clause 23.7(c) (
Key Contractor Insolvency Cure Periods
).
|
(c)
|
Within [*****] (or such other period as may be agreed by the Parties acting reasonably) of senior management of the Parties meeting in accordance with Clause 23.7(b) (
Key Contractor Insolvency Cure Periods
), representatives of the Parties, together with representatives of any Key Contractors or potential alternative key contractors (as required), shall meet and discuss the development of a remedial action plan in response to the matters set out in the Key Contractor Insolvency Event Notice taking into account any matters that senior management agreed to address.
|
(d)
|
If:
|
(i)
|
senior management of the Owner fail to meet with senior management of the Lessee in accordance with Clause 23.7(b) (
Key Contractor Insolvency Cure Periods
) (other than to the extent such failure was caused by or attributable to the Lessee);
|
(ii)
|
the Owner fails to commence taking steps to implement the remedial action plan agreed under Clause 23.7(c) (
Key Contractor Insolvency Cure Periods
) within [*****] (or such other period as the Parties agree acting reasonably) of the Parties agreeing it; or
|
(iii)
|
if the Owner and the Lessee fail to agree on a remedial action plan within [*****] of the initial meeting convened pursuant to Clause 23.7(c) (
Key Contractor Insolvency Cure Periods
),
|
23.8
|
Consequences of Termination
|
(a)
|
If the Lessee validly terminates this Agreement pursuant to Clause 23.2 (
Termination by the Lessee
) (other than Clauses 23.2(g) and 23.2(m) (
Termination by the Lessee
)) or Clause 23.3 (
Termination for Owner or Operator Default
), then subject to the Surviving Obligations:
|
(i)
|
the Owner shall (or shall procure that the provider of Owner Credit Support
shall) immediately pay to the Lessee the Owner Credit Support Amount at the point in time of termination, less:
|
(A)
|
if the Agreement is validly terminated prior to the Commercial Operations Date:
|
(1)
|
any Daily LDs already paid by the Owner; and
|
(2)
|
amounts already paid by an Owner Credit Support provider (provided that if the Owner Credit Support has been previously replenished pursuant to Clauses 18.2(d) or 18.2(f) (
Owner Credit Support
), such reduction shall only be for the amounts already paid by an Owner Credit Support provider from the date of the immediately prior replenishment),
|
(B)
|
if the Agreement is validly terminated on or after the Commercial Operations Date:
|
(1)
|
any Daily LDs paid by the Owner; and
|
(2)
|
amounts paid by an Owner Credit Support provider (provided that if the Owner Credit Support has been previously replenished pursuant to Clauses 18.2(d) or 18.2(f) (
Owner Credit Support
), such reduction shall only be for the amounts already paid by an Owner Credit Support provider from the date of the immediately prior replenishment),
|
(ii)
|
none of the Lessee, the Owner or the Operator shall have any further claims, rights or remedies under this Agreement, at Law or otherwise upon such valid termination, subject to the exercise by the Lessee of:
|
(A)
|
any step-in rights in favour of the Lessee in any Direct Agreement; and/or
|
(B)
|
any bare boat charter rights pursuant to Clause 23.9 (
Bare Boat Charter
).
|
(b)
|
If the Owner validly terminates this Agreement pursuant to Clause 23.4 (
Termination by the Owner
) or Clause 23.5 (
Termination for Breach of Business Principles
), then subject to the Surviving Obligations:
|
(i)
|
the Lessee shall (or shall procure that the provider of Lessee Credit Support shall) immediately pay to the Owner the Lessee Credit Support Amount at the point in time of termination, less:
|
(A)
|
if the Agreement is validly terminated prior to the Commercial Operations Date:
|
(1)
|
any Standby Dayrate and Bullet Payment already paid by the Lessee; and
|
(2)
|
amounts already paid by a Lessee Credit Support provider (provided that if the Lessee Credit Support has been previously replenished pursuant to Clauses 18.1(d) or 18.1(f) (
Lessee Credit Support
), such reduction shall only be for the amounts already paid by a Lessee Credit Support provider from the date of the immediately prior replenishment),
|
(B)
|
if the Agreement is validly terminated on or after the Commercial Operations Date:
|
(1)
|
any Bullet Payment not yet reimbursed;
|
(2)
|
any Standby Dayrate paid by the Lessee; and
|
(3)
|
amounts paid by a Lessee Credit Support provider (provided that if the Lessee Credit Support has been previously replenished pursuant to Clauses 18.1(d) or 18.1(f) (
Lessee Credit Support
), such reduction shall only be for the amounts already paid by a Lessee Credit Support provider from the date of the immediately prior replenishment),
|
(ii)
|
none of the Lessee, the Owner or the Operator shall have any further claims, rights or remedies under this Agreement, at law or otherwise upon such valid termination.
|
(c)
|
At the end of the Lease Period or if this Agreement is validly terminated pursuant to:
|
(i)
|
Clause 8.2(c) or Clause 8.2(f) (
Continuation Date
);
|
(ii)
|
Clause 15 (
Force Majeure
); or
|
(iii)
|
at any point following the arrival of the FLNG Facility at the Lessee's Operating Boundary, this Clause 23 (
Suspension and Termination
) except where the Lessee exercises its right to enter into a bareboat charter under Clause 23.9 (
Bare Boat Charter
),
|
(d)
|
The Owner and the Lessee shall use reasonable endeavours to agree the necessary steps to be taken by the Owner and the Lessee to safely disconnect and demobilise the FLNG Facility from the LNG Hub Facilities in accordance with Schedule 8 (
HSSE Requirements
) prior to the Owner disconnecting and demobilising the FLNG Facility.
|
23.9
|
Bare Boat Charter
|
(a)
|
Subject to the Commercial Operations Date having occurred, if the Lessee is entitled to terminate this Agreement in accordance with Clause 23.2 (
Termination by the Lessee
) (other than Clauses 23.2(h), 23.2(i), 23.2(k) or 23.2(m) (
Termination by the Lessee
)) or Clause 23.3 (
Termination for Owner or Operator Default
), then the Lessee may (in its sole discretion) give notice to the Owner that it wishes to enter into a bare boat charter, in which case:
|
(i)
|
the Owner shall allow (at the Lessee's cost) the attendance on board the FLNG Facility of a reasonable number of the Lessee's representatives for a period of up to thirty (30) Days after the notice given pursuant to Clause 23.9(a) (
Bare Boat Charter
), and shall further allow (at the Lessee's cost) the attendance on board of the Lessee's crew for up to twenty (20) Days prior to execution of the bare boat charter, and the Owner shall co-operate with the Lessee's representatives and crew to allow them to familiarise themselves with the FLNG Facility's systems, and reasonably assist with and/or submit documentation (at the Lessee's cost) relating to the change in operator, technical managers and/or crew to the FLNG Facility's Flag State, Classification Society and any other relevant authorities or entities as may be reasonably notified by the Lessee;
|
(ii)
|
promptly following the thirtieth (30
th
) Day after the notice given pursuant to Clause 23.9(a) (
Bare Boat Charter
), the Owner and the Lessee shall execute a bare boat charter in accordance with the principles in Schedule 22 (
Bare Boat Charter
);
|
(iii)
|
upon execution of the bare boat charter, this Agreement shall terminate; and
|
(iv)
|
subject to Clause 23.8(a)(i) (
Consequences of Termination
) and the Surviving Obligations, no Party shall have any entitlement, and will not assert the existence of any entitlement, to additional claims, rights, remedies or payments upon such termination.
|
(b)
|
The rights of the Parties under this Clause 23.9 (
Bare Boat Charter
) shall prevail over any inconsistencies with Clause 7.2(a) (
Inspection Rights
).
|
24.
|
DISPUTE RESOLUTION
|
24.1
|
Governing Law
|
24.2
|
Occurrence of Disputes
|
(a)
|
The Parties agree to attempt to resolve any dispute, controversy, difference or claim arising out of or in respect of this Agreement ("
Dispute
") promptly and in a good faith manner. Without prejudice to any Party's rights to apply to any competent judicial authority for interim or conservatory measures, a Dispute shall be settled in accordance with the procedures set out in this Clause 24 (
Dispute Resolution
).
|
(b)
|
For the avoidance of doubt, neither the existence of any Dispute, nor the commencement of any proceedings thereto, shall relieve a Party of its obligations to continue to observe and perform the provisions of this Agreement.
|
(c)
|
In the event a Dispute exists, the Party raising any Dispute shall first serve upon the other Parties a written notice setting out the material particulars of the Dispute ("
Notice of Dispute
").
|
24.3
|
Senior Management
|
(a)
|
within
[*****]
from the date of a Notice of Dispute, the senior management of all Parties shall meet with a view to resolving the Dispute notified by the Notice of Dispute; and
|
(b)
|
if the Dispute is not resolved between the Parties within
[*****]
from the date of the Notice of Dispute, any Party shall be entitled to refer such Dispute to:
|
(i)
|
expert determination in accordance Clause 24.4 (
Expert Determination
) for any Dispute arising in connection with Clauses 3.4(b) (
Operator's General Obligations
), 3.7 (
Cost Competitiveness
), 6.7 (
Variation Order
), 7.4 (
Hold-points
), 7.5 (
Review-points
), 8.2(e)(iv)(B)(3) (
Continuation Date
), 12.5 (
Adjustment of Base Capacity
) 14.7(b) (
Audit, Records and Financial Reporting
), 14.7(c) (
Audit, Records and Financial Reporting
), 17.4(b)(i) (
Requisition of FLNG Facility
) or 28.3(a)(ii) (
Purchase of the FLNG Facility
) (a "
Technical Dispute
"); or
|
(ii)
|
arbitration in accordance with Clause 24.5 (
Arbitration
) for any other Dispute.
|
24.4
|
Expert Determination
|
(a)
|
Any Technical Dispute that is not resolved pursuant to Clause 24.3 (
Senior Management
) shall be referred to an expert for determination ("
Independent Expert
") pursuant to this Clause 24.4 (
Expert Determination
). The Party that requires a Technical Dispute to be submitted to an Independent Expert shall send a written notice to the other Party or Parties to the Technical Dispute, specifying that such Technical Dispute be submitted to an Independent Expert who shall be designated to consider and decide the issues raised by such Technical Dispute (a "
Technical Dispute Submission
").
|
(b)
|
The Parties to the Technical Dispute shall discuss and seek to agree on a designated Independent Expert within [*****] of the date of the relevant Technical Dispute Submission. If the Parties fail to designate the Independent Expert within the time period stipulated above, upon the request of any of the Parties to the Technical Dispute, the International Chamber of Commerce ("
ICC
") International Centre for ADR shall appoint such Independent Expert in accordance with the ICC Rules for the Appointment of Experts and Neutrals, subject to the provisions set forth in this Clause 24.4 (
Expert Determination
). Within [*****] of the appointment of the Independent Expert, the Parties shall submit to the Independent Expert a notice (a "
Position Notice
") setting forth such Party's position in respect of the issues in dispute. Such Position Notice shall include supporting documentation, if appropriate.
|
(c)
|
The Independent Expert shall complete all proceedings and issue his decision with reasons with regard to the Technical Dispute as promptly as reasonably possible, but in any event within [*****] of the date on which both Position Notices are submitted, unless the Independent Expert reasonably determines that additional time is required in order to give adequate consideration to the issues raised. If the Independent Expert reasonably determines that additional time is required in order to give adequate consideration to the issues raised, the Independent Expert shall state in writing his reasons for believing that additional time is needed and shall specify the additional period required, which period shall not exceed [*****] unless the Parties agree otherwise. If the Parties agree to such additional time, the Independent Expert shall render his decision within such extended time period. In resolving a Technical Dispute, the Independent Expert shall consider all facts and circumstances he deems reasonable given the nature of the Technical Dispute.
|
(d)
|
If the Independent Expert fails to notify the Parties of his decision with respect to any Technical Dispute referred to him pursuant to Clause 24.4(a) (
Expert Determination
) within the time limit pursuant to Clause 24.4(c) (
Expert Determination
), a Party to the Technical Dispute may give notice that the Technical Dispute is to be decided by arbitration pursuant to Clause 24.5 (
Arbitration
), whereupon the Independent Expert shall give no further consideration to the Technical Dispute and shall not issue a decision.
|
(e)
|
The decision of the Independent Expert may only be challenged on the grounds of (i) procedural unfairness, (ii) the Independent Expert materially departed from his instructions or (iii) manifest error or fraud. A Party wishing to challenge the Independent Expert's decision must issue a written notice of dissatisfaction with the decision to the other Party or Parties to the Technical Dispute, with a copy to the Independent Expert, within [*****] of such Party's receipt of the Independent Expert's decision, in which event such Technical Dispute shall be referred to arbitration pursuant to Clause 24.5 (
Arbitration
), provided such Party commences arbitration within [*****] from the date of the receipt by the other Party or Parties to the Technical Dispute of the notice of dissatisfaction. In such a case, the Independent Expert's decision will remain binding on the Parties until it is superseded by any decision or award of the arbitral tribunal under Clause 24.5 (
Arbitration
). If the arbitration is not commenced within such [*****], the Independent Expert's decision shall, in the absence of manifest error or fraud, be final and binding upon the Parties, notwithstanding the timely notice of dissatisfaction given by the dissatisfied Party.
|
(f)
|
All individuals appointed by the Parties or the ICC International Centre for ADR as an Independent Expert shall be independent of the Parties and shall be experienced in comparable projects and have the expertise in the area to which such Technical Dispute relates.
|
(g)
|
The Independent Expert shall have the power to award costs as well as interest on any sums awarded as it deems appropriate. All fees and expenses incurred by the Independent Expert shall be borne by the Parties to the Technical Dispute in equal shares, unless the Independent Expert decides otherwise. Each Party shall bear its own costs of participating in the expert determination process (including the costs of its advisors or consultants).
|
(h)
|
The Independent Expert will determine its own procedures for the resolution of the Technical Dispute. The Independent Expert shall act as an expert and not as an arbitrator.
|
(i)
|
All proceedings (including all documents submitted in connection with such proceedings) before the Independent Expert shall be conducted in the English language and shall be kept confidential among the Parties and the Independent Expert.
|
(j)
|
Where there is any dispute about whether a Dispute constitutes a Technical Dispute, such dispute shall be resolved in accordance with Clause 24.5 (
Arbitration
).
|
24.5
|
Arbitration
|
(a)
|
Any Dispute (other than a Technical Dispute) which is not resolved in accordance with Clause 24.3 (
Senior Management
) and any Technical Dispute that has been challenged in accordance with Clause 24.4(e) (
Expert Determination
) shall be referred to final and binding determination by arbitration under the arbitration rules (the "
Rules
") of the London Court of International Arbitration (the "
LCIA
"), which Rules are deemed to be incorporated by reference into this Clause 24.5 (
Arbitration
).
|
(b)
|
The seat and venue for the arbitration shall be London, England.
|
(c)
|
The tribunal (the "
Arbitral Tribunal
") shall consist of three (3) arbitrators. One arbitrator shall be nominated by the claimant (or claimant parties jointly) in the request for arbitration and the second arbitrator shall be nominated by the respondent (or respondent parties jointly) in the response to the request for arbitration, for appointment by the LCIA court. If there are multiple claimants and/or multiple respondents, each Party agrees that, in the absence of a joint nomination of an arbitrator by one side, any existing nomination or confirmation of the arbitrator chosen by the Party or Parties on the other side of the proposed arbitration shall be unaffected, and the remaining arbitrator(s) shall be appointed in accordance with the LCIA Rules. If this Clause 24.5(c) (
Arbitration
) operates to exclude a Party's right to choose its own arbitrator, each Party irrevocably and unconditionally waives any right to do so. The third arbitrator, who shall be the presiding arbitrator, shall be jointly selected by the other two (2) arbitrators within fourteen (14) Days of the selection of the second arbitrator. If the third arbitrator is not selected within this time period, the LCIA court shall appoint such arbitrator, unless the Parties to the Dispute agree otherwise. No arbitrator appointed pursuant to this Clause 24.5 (
Arbitration
) shall be an employee or agent or former employee or agent of any of the Parties. The Parties agree that Article 6 of the LCIA Rules shall not apply in relation to the presiding arbitrator of the Arbitral Tribunal.
|
(d)
|
The language to be used in the arbitral proceedings shall be English.
|
(e)
|
This arbitration agreement shall be governed by the laws of England and Wales.
|
(f)
|
Before the constitution of the Arbitral Tribunal in an Existing Dispute, any party to such Existing Dispute may effect Joinder by serving notice on any party to this Agreement or a Related Agreement whom it seeks to join, provided that such notice is also sent to all other parties to the Existing Dispute and the LCIA court within thirty (30) Days of service of the request for arbitration. The joined party will become a claimant or respondent party (as appropriate) to the Dispute and participate in the arbitrator appointment process in Clause 24.5(c) (
Arbitration
). After the constitution of the Arbitral Tribunal in an Existing Dispute, any party to that Existing Dispute may apply to the Arbitral Tribunal for a Joinder Order provided that such application is also sent to all parties to the Existing Dispute and the party it seeks to join. On hearing such application, the Arbitral Tribunal may, if it considers it appropriate, make a Joinder Order. Notice of such Joinder Order must be given to all parties to the Existing Dispute, the joined party and the LCIA registrar.
|
(g)
|
Any party to an Existing Dispute, including any joined party, may make a cross-claim under this Agreement or any Related Agreement against any other party, provided that:
|
(i)
|
such cross-claim is based upon a Dispute substantially related to the Dispute in the relevant request for arbitration; and
|
(ii)
|
such cross-claim is made by written notice to the LCIA court and to all other parties within either twenty-eight (28) Days from the receipt by such party of the relevant request for arbitration or such longer time as may be determined by the LCIA court or the arbitrators.
|
(h)
|
Each Party: (i) consents to Joinder in accordance with Clause 24.5(f) (
Arbitration
) or in accordance with any Related Agreement, (ii) agrees that the Arbitral Tribunal in an Existing Dispute shall have jurisdiction to determine any cross-claim made in accordance with Clause 24.5(g) (
Arbitration
); and, (iii) agrees to be bound by any award made by the Arbitral Tribunal in an Existing Dispute to which it is joined, including in relation to any cross-claim made under Clause 24.5(g) (
Arbitration
) or any Related Agreement, even if it chooses not to participate in the proceedings.
|
(i)
|
Any party to both a First-filed Dispute and Later Dispute(s) may apply to the Arbitral Tribunal appointed in the First-filed Dispute for a Consolidation Order in relation to any Later Dispute(s). That party must also send such application to all parties to the First-filed Dispute and the Later Dispute. The Arbitral Tribunal appointed in relation to the First-filed Dispute may, if it considers it in the interests of justice and efficiency, make a Consolidation Order on hearing such application. If the Arbitral Tribunal in the First-filed Dispute makes a Consolidation Order it will immediately, to the exclusion of other Arbitral Tribunals, have jurisdiction to resolve finally the Later Dispute(s). The Parties agree that if a Consolidation Order is made the requirements of Article 6 of the LCIA Rules shall not apply in relation to the presiding arbitrator of the Arbitral Tribunal in the First-filed Dispute. The Parties agree that they will be bound by the Consolidation Order and any subsequent orders and awards issued in such circumstances even if they choose not to participate in the proceedings. Notice of the Consolidation Order must be given to any arbitrators already appointed in relation to the Later Dispute(s) and the LCIA registrar. Any appointment of an arbitrator in relation to the Later Dispute(s) before the date of the Consolidation Order will terminate immediately and the arbitrator will be deemed to be discharged. This termination is without prejudice to the validity of any act done or order made by that arbitrator or by any court in support of that arbitration before that arbitrator's appointment is terminated; his or her entitlement to be paid proper fees and disbursements; and the date when any claim or defence was raised for the purpose of applying any limitation bar or any similar rule or provision. If this Clause 24.5(i) (
Arbitration
) operates to exclude a Party's right to choose its own arbitrator, each Party irrevocably and unconditionally waives any right to do so.
|
(j)
|
Without prejudice to Clauses 24.5(f) and 24.5(i) (
Arbitration
), Claims arising out of or in connection with this Agreement and one or more Related Agreements may be made in a single arbitration and commenced in the same request for arbitration.
|
(k)
|
Any award shall be final, binding and enforceable against the Parties in any court of competent jurisdiction and, to the extent permitted by law, the Parties waive all rights to appeal such award on any question of law to the courts of England and Wales under Sections 45 or 69 of the Arbitration Act 1996.
|
25.
|
WAIVER OF IMMUNITY
|
(a)
|
The execution, delivery and performance of this Agreement constitute private and commercial acts.
|
(b)
|
To the extent that a Party may in any jurisdiction claim for itself or its assets immunity from suit, execution, attachment (whether in aid of execution, before award or judgment, or otherwise) or other legal process and to the extent that in any such jurisdiction there may be attributed to itself or its assets such immunity (whether or not claimed), such Party irrevocably agrees not to claim and irrevocably waives such immunity to the fullest extent permitted by the laws of such jurisdiction.
|
26.
|
CONFIDENTIALITY
|
26.1
|
Naming Conventions
|
26.2
|
General Obligation
|
(a)
|
use Confidential Information except in connection with the performance of activities to be conducted pursuant to or for the purposes of this Agreement (the "
Permitted Purpose
"); nor
|
(b)
|
sell, trade, publish or otherwise disclose to anyone in any manner whatsoever such Confidential Information, including by means of photocopy or reproduction unless expressly permitted by this Clause 26 (
Confidentiality
).
|
26.3
|
Exclusions from General Obligation
|
(a)
|
is already in possession of the public or becomes available to the public other than through its disclosure in breach of the confidentiality undertakings provided in this Agreement or under the Preliminary Agreement;
|
(b)
|
was available to the Receiving Party on a non-confidential basis before disclosure by the Disclosing Party;
|
(c)
|
was, is or becomes available to the Receiving Party on a non-confidential basis from a Third Party that is not bound by a confidentiality agreement with the Disclosing Party and has the right to disclose such information at the time it is acquired by the Receiving Party (without binder or secrecy);
|
(d)
|
is developed independently by or for the Receiving Party without reliance on the Confidential Information disclosed by the Disclosing Party; or
|
(e)
|
is required to be disclosed in order to comply with the requirements of any law, rule or regulation of any Governmental Authority or regulatory body, court or other authority of competent jurisdiction having jurisdiction over this Agreement or any of the Parties, or of any relevant stock exchange (provided that the Receiving Party shall, to the extent legally permissible, give advance notice to the Disclosing Party prior to such disclosure and shall seek to limit any such disclosure to the greatest extent practicable).
|
26.4
|
Permitted Disclosure
|
(a)
|
its employees, officers, directors, agents and representatives;
|
(b)
|
its Affiliates and the employees, officers, directors, agents and representatives of such Affiliates;
|
(c)
|
where the Lessee is the Receiving Party, its Co-venturers, their respective Affiliates and the States, together with their respective employees, officers, directors, agents and representatives, and their respective professional consultants and advisers;
|
(d)
|
its or its Affiliates' professional consultants and advisers including insurers, underwriters and brokers;
|
(e)
|
its and, where the Lessee is the Receiving Party, its Co-venturers' financial advisers, investment bankers, underwriters, brokers, lenders or other financial institutions advising on, providing or considering the provision of finance or guarantees or insurance in connection which such finance (including as contemplated under Clause 28.1(h) (
Owner Financing
));
|
(f)
|
any LNG Buyer;
|
(g)
|
its subcontractors of any tier (including the Key Contractors) in connection with the Upstream Project and GTA Project; and
|
(h)
|
to bona fide intending assignees of a Co-venturer's interest in the Unit Area.
|
26.5
|
Responsibilities
|
(a)
|
The Receiving Party shall be responsible for ensuring that all of its Recipients to whom the Confidential Information is disclosed under this Agreement shall keep such information confidential in accordance with the terms of this Clause 26 (
Confidentiality
) and shall not disclose, divulge or use such Confidential Information in violation of this Clause 26 (
Confidentiality
). The Receiving Party shall be liable to the Disclosing Party for any breach of this Clause 26 (
Confidentiality
) by the Recipients of the Receiving Party.
|
(b)
|
If at any time the Disclosing Party, wishes to disclose Technical Information to the Receiving Party or any of its Recipients, the Disclosing Party shall prior to the disclosure notify the Receiving Party in writing on a non-confidential basis of:
|
(i)
|
the nature of the information;
|
(ii)
|
the fact that it is Technical Information; and
|
(iii)
|
the additional use or other restrictions attaching to it,
|
26.6
|
Public Announcements
|
27.
|
ASSIGNMENT AND CHANGE OF CONTROL
|
27.1
|
Requirement for Consent
|
27.2
|
Assignment by Owner
|
27.3
|
Assignment by Lessee
|
(a)
|
Subject to the rights and obligations of the Lenders (if any) as set out in the Direct Agreements, the Lessee may:
|
(i)
|
assign all or any part of its rights; and
|
(ii)
|
subject to Clause 27.4 (
Novation
), novate or transfer all (but not part) of its obligations,
|
27.4
|
Novation
|
(a)
|
procures that the incoming party or parties (as the case may be) executes and delivers to the other Parties a deed of novation which shall be substantially in the form set out in Schedule 23 (
Form of Deed of Novation
); and
|
(b)
|
procures that, in the case of a proposed novation by:
|
(i)
|
the Lessee, if the incoming party or parties (as the case may be) is not an Affiliate of the Lessee, Lessee Credit Support is provided to the Owner and the Operator in a form that satisfies the requirements set out in Clause 18 (
Credit Support
); or
|
(ii)
|
the Owner, if the incoming party or parties (as the case may be) is not an Affiliate of the Owner, Owner Credit Support is provided to the Lessee in a form that satisfies the requirements set out in Clause 18 (
Credit Support
); and
|
(c)
|
is not, at the time of the proposed novation or transfer, in material breach of any of its obligations under this Agreement,
|
27.5
|
Change of Control of Owner
|
27.6
|
Ownership of the Operator
|
(a)
|
The Owner covenants in favour of the Lessee that on and from the date of execution of the deed of accession by the entity who will be the Operator pursuant to Clause 3.1(b) (
Owner's General Obligations
) and throughout the Term the Operator:
|
(i)
|
is and will remain a wholly owned subsidiary of either the Owner or an Affiliate of the Owner; and
|
(ii)
|
has not and will not undertake any business other than complying with its obligations under this Agreement,
|
(b)
|
The Lessee shall, promptly upon request (together with any necessary supporting information), reimburse the Owner and the Operator for any and all incremental costs reasonably and properly incurred in connection with any restructuring or re-domiciliation of the Operator (other than in relation to Taxes) to the extent:
|
(i)
|
required by any change of Law of either or both of the States that is enacted after the date of this Agreement, other than any change of Law that should have been in the reasonable contemplation of the Parties at the time of entering into this Agreement; or
|
(ii)
|
otherwise required by the Lessee (acting reasonably).
|
28.
|
FINANCING ARRANGEMENTS
|
28.1
|
Owner Financing
|
(a)
|
The Owner is, or will be, the borrower under external debt financing arrangements with Initial Lenders. The Initial Lenders are [*****].
|
(b)
|
The Parties acknowledge that the Owner intends to refinance the FLNG Facility and/or the Work, from time to time, after the date of this Agreement by entering into arrangements with banks, insurance companies, financial institutions, export credit agencies and/or other lending institutions providing loan or other credit facilities (including any guarantees, insurance hedging services, bonds or lease financing) for the financing of the FLNG Facility and/or the Work ("
Refinanciers
").
|
(c)
|
Prior to the Commercial Operations Date:
|
(i)
|
any refinancing of the FLNG Facility and/or the Work shall require the Lessee's prior written consent (such consent not to be unreasonably withheld, conditioned or delayed); and
|
(ii)
|
no Party shall have any obligation to consider or agree to, any amendment to this Agreement requested by or on behalf of, or in response to requests by or on behalf of, the Initial Lenders or Refinanciers.
|
(d)
|
The Lessee's consent under Clause 28.1(c)(i) (
Owner Financing
) shall be deemed to be reasonably withheld, conditioned or delayed if the proposed refinancing would require:
|
(i)
|
[*****]:
|
(A)
|
[*****];
|
(B)
|
[*****]; or
|
(C)
|
[*****],
|
(ii)
|
the participation of any Refinancier that is:
|
(A)
|
an agency of the government of, a person directly or indirectly controlled by, or a person listed in, a country that is subject to a sanctions program identified on the list published and maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state, or the United Kingdom, from time to time as such program may be applicable to such agency, or person; or
|
(B)
|
a person that engages in (or that owns a significant interest in any organisation that engages in) the commercial and economic business that the Lessee is involved in or has significant knowledge of.
|
(e)
|
Except in response to a request or proposal of the Owner and/or the Lenders that seeks an amendment to the terms of this Agreement or any direct agreement contrary to the principles set out in Clauses 28.1(c)(ii) and/or 28.1(d)(i) (
Owner Financing
), the Lessee's consent under Clause 28.1(c)(i) (
Owner Financing
) shall be deemed to be unreasonably conditioned if the Lessee requires, as a condition for its consent to the refinancing, any terms and conditions that are more favourable to the Lessee than the terms and conditions the Lessee enjoys under this Agreement or any Direct Agreement in place at the time of the proposed refinancing.
|
(f)
|
On or after the Commercial Operations Date, any refinancing of the FLNG Facility and/or the Work shall require the Lessee's prior written consent (such consent not to be unreasonably withheld, conditioned or delayed, having regard to the overall impact of the proposed refinancing as a whole upon the Lessee), provided that such consent shall be deemed to be reasonably withheld, conditioned or delayed if the proposed refinancing would meet any of the criteria set out in Clauses 28.1(d)(ii)(A) or 28.1(d)(ii)(B) (
Owner Financing
).
|
(g)
|
Following the Lessee's consent to any refinancing, the Lessee shall take, or cause to be taken, all actions reasonably necessary or appropriate to consummate the proposed refinancing, including the entering into Direct Agreements with the Refinanciers.
|
(h)
|
The Lessee shall use reasonable endeavours to comply with any reasonable requests of the Initial Lenders or any Refinanciers to conduct routine due diligence and "know your customer" checks on the Lessee or any member of the Lessee Group as soon as reasonably practicable following such request.
|
28.2
|
Security
|
(a)
|
The Owner and the Operator shall have the right to create and permit to subsist in favour of the Initial Lenders and, subject to Clause 28.1 (
Owner Financing
), any Refinanciers, without the consent of the other Parties, first ranking security over:
|
(i)
|
the FLNG Facility and the Work;
|
(ii)
|
the Owner's rights under this Agreement;
|
(iii)
|
any subcontract entered into by the Owner or Operator in accordance with Clause 3.5 (
Subcontracting
);
|
(iv)
|
each Conversion Contract and any subcontract entered into by a Key Contractor pursuant to Clause 7.1(b) (
Construction Parties
);
|
(v)
|
shares in the Owner;
|
(vi)
|
any earnings from the FLNG Facility (excluding any amounts payable to the Operator);
|
(vii)
|
compensation for requisition or otherwise of the FLNG Facility under Clause 17.4 (
Requisition of FLNG Facility
); and
|
(viii)
|
proceeds of any insurance under Clause 21 (
Insurance
),
|
(b)
|
Except as provided in Clause 28.2(a) (
Security
), neither the Owner nor the Operator shall create or permit to subsist any mortgage, charge, encumbrance or security interest over the whole or part of:
|
(i)
|
the FLNG Facility and the Work;
|
(ii)
|
the Owner's rights under this Agreement;
|
(iii)
|
any subcontract entered into by the Owner or Operator in accordance with Clause 3.5 (
Subcontracting
);
|
(iv)
|
any Conversion Contract or any subcontract entered into by a Key Contractor pursuant to Clause 7.1(b) (
Construction Parties
);
|
(v)
|
shares in the Owner;
|
(vi)
|
any earnings from the FLNG Facility;
|
(vii)
|
compensation for requisition or otherwise of the FLNG Facility under Clause 17.4 (
Requisition of FLNG Facility
); and
|
(viii)
|
proceeds of any insurance under Clause 21 (
Insurance
),
|
(c)
|
For the avoidance of doubt, the Operator shall not create or permit to subsist any mortgage, charge, encumbrance or security interest over the whole or part of the FLNG Facility or the earnings therefrom.
|
28.3
|
Purchase of the FLNG Facility
|
(a)
|
The Lessee Group shall have a right to purchase the FLNG Facility subject to the following principles:
|
(i)
|
no purchase shall take place until at least the end of the fifteenth (15
th
) Commercial Operations Date Anniversary;
|
(ii)
|
the price payable shall be the fair market value of the remaining useful economic life of the FLNG Facility, as determined by a valuation firm of international repute in accordance with the expert determination procedures set out in Clause 24.4 (
Expert Determination
); and
|
(iii)
|
only the Lessee or one of its Co-venturers or one of its or their Affiliates may be named by the Lessee as the purchaser of the FLNG Facility.
|
(b)
|
In the event either the Lessee, one of its Co-venturers or one of its of their Affiliates elects to purchase of the FLNG Facility under this Clause 28.3 (
Purchase of the FLNG Facility
), then on the effective date of the transfer of title of the FLNG Facility from the Owner to the purchaser under this Clause 28.3 (
Purchase of the FLNG Facility
), this Agreement shall terminate and the Parties shall have no further liability to each other except with respect to:
|
(i)
|
the Surviving Obligations; and
|
(ii)
|
any rights, obligations and liabilities that have accrued prior to termination and which have not been discharged in full under the sale and purchase agreement.
|
(c)
|
The rights of the Parties under this Clause 28.3 (
Purchase of the FLNG Facility
) shall prevail over any inconsistencies with Clause 7.2(a) (
Inspection Rights
).
|
28.4
|
Title to Natural Gas
|
(a)
|
Subject to Clause 28.5(b) (
Retainage, LNG Inventory and Heel
) and Clauses 11.9(d)(i) and 11.9(e)(iii)(A) (
Consequences of Off-Specification LNG for reasons other than Off-Specification Feed Gas
), title to Feed Gas and LNG produced from the FLNG Facility shall at no time become the property of any member of the Owner Group.
|
(b)
|
In all cases and without prejudice to the generality of the indemnities contained in Clause 17 (
Liability and Indemnity
), the Lessee shall indemnify, Defend and hold the Owner and the Operator harmless against all adverse claims to title in Feed Gas and LNG processed on board the FLNG Facility, other than any claim from any member of the Owner Group.
|
28.5
|
Retainage, LNG Inventory and Heel
|
(a)
|
The Operator shall be entitled to receive at no cost from the Lessee specified quantities of Feed Gas required for Retainage up to the Feed Gas Usage Allowance, and a minimum inventory during the Lease Period. The provisions of Schedule 7 (
Feed Gas Usage Allowance
) shall apply if Retainage exceeds the Feed Gas Usage Allowance, and the provisions of Clause 13.9 (
Feed Gas Usage Performance
) shall apply if Retainage exceeds the Excess Feed Gas Allowance.
|
(b)
|
If the FLNG Facility enters the Lessee's Operating Boundary with the agreed LNG inventory and heel, then the Owner shall sell, and the Lessee shall purchase, the amount of LNG inventory and heel at the then current market price. If the FLNG Facility contains LNG inventory and heel at the end of the Term, then the Lessee shall sell, and the Owner shall purchase, all such LNG inventory and heel at the then current market price.
|
29.
|
NOTICES
|
29.1
|
Key Features
|
(a)
|
in writing;
|
(b)
|
in the English language; and
|
(c)
|
(i) sent by hand, registered mail, or reputable international courier for the attention of the person and to the relevant address set out in this Clause 29.1(c) (
Key Features
) or to such other addresses as the Parties may respectively from time to time designate by notice to the other Party; or (ii) with respect to any notice other than that to be sent pursuant to Clauses 2 (
Term and Effectiveness
), 3.5 (
Subcontracting
), 7.7 (
Sailaway and Arrival Dates
), 7.8(b) (
Project Schedule
), 8 (
Lease Period
), 13.1(d) (
Elements of the Dayrate
), 14.5 (
Disputed Invoices
), 14.8 (
Nominated Account
), 15.2(b), 15.2(c), 15.2(d) and 15.2(f) (
Force Majeure
), 15.6(b)(i) (
Obligations Following FM
), 17.4 (
Requisition of FLNG Facility
), 17.6 (
Liens
), 17.7 (
Notice and Defence
), 23 (
Suspension and Termination
), 24 (
Dispute Resolution
), 28.3 (
Purchase of the FLNG Facility
) and 31.5(a) (
Suspected Breach
) (or others as may be agreed by the Parties), sent by e-mail to the e-mail address of the other Party which is set out in this Clause 29.1(c) (
Key Features
) or to such other e-mail address as the other Party shall by notice require and as provided under Clause 32.4 (
Investigations and Notifications
).
|
Notice to Owner:
|
|
Gimi MS Corporation
|
Attention:
|
|
Pernille Noraas
|
Address:
|
|
c/o Golar Management Ltd
6th Floor, The Zig Zag
70 Victoria Street
London SW1E 6SQ
United Kingdom
|
Email:
|
|
Pernille.noraas@golar.com
|
Copy to:
|
|
notices@golar.com
|
|
|
|
Notice to Operator:
|
|
Golar MS Operator S.A.R.L.
|
Attention:
|
|
Teddy Teisrud
|
Address:
|
|
c/o Golar Management Norway
Fridtjof Nansens Plass 4, N-0160, Oslo, Norway
|
Email:
|
|
Teddy.Teisrud@golar.com
|
Copy to:
|
|
notices@golar.com
|
|
|
|
Notice to Lessee:
|
|
BP Mauritania Investments Limited
|
Attention:
|
|
Gerry McGurk, Vice President Projects Mauritania & Senegal
|
Address:
Email:
|
|
Chertsey Road, Sunbury on Thames, Middlesex, TW16 7LN
gerard.mcgurk@uk.bp.com
|
Copy to:
|
|
Assistant General Counsel, Western & Southern Africa and India
|
Email:
|
|
eleonora.andrews-smith@uk.bp.com
|
29.2
|
Requirements for Receipt
|
(a)
|
Any notice required under this Agreement to be given in writing shall be deemed to be duly received only:
|
(i)
|
in the case of a letter delivered by registered mail, at the date and time of its actual delivery to the party to whom it was addressed if within normal business hours (09:00 – 17:00) on a Business Day in the country of receipt otherwise at the commencement of normal business on the next such Business Day;
|
(ii)
|
in the case of a letter delivered by hand or by courier, at the date and time of its actual delivery to the party to whom it was addressed if within normal business hours (09:00 – 17:00) on a Business Day in the country of receipt otherwise at the commencement of normal business on the next such Business Day; or
|
(iii)
|
in the case of an e-mail, at the time of transmission recorded on the message if such time is within normal business hours (09:00 – 17:00) in the country of receipt, otherwise at the commencement of normal business hours on the next Day in the country of receipt,
|
(b)
|
For the avoidance of doubt, any failure to transmit a copy of the notice to a Party listed as entitled to receive a copy shall in no way invalidate any notice otherwise properly given in accordance with this Clause 29 (
Notices
).
|
30.
|
GENERAL LEGAL PROVISIONS
|
30.1
|
Approvals
|
30.2
|
Rules of Construction
|
30.3
|
Disclaimer of Agency
|
30.4
|
Severance of Invalid Provisions
|
30.5
|
Rights of Third Parties
|
(a)
|
the rights conferred by the indemnities on persons who are not parties to this Agreement;
|
(b)
|
the step-in rights in favour of the Co-venturers as set out in Clauses 23.6(b) and 23.6(c) (
Cure Periods
), and
|
(c)
|
the right in favour of the Co-venturers and their Affiliates, and the Affiliates of the Lessee, to serve as purchaser of the FLNG Facility under Clause 28.3(a)(iii) (
Purchase of the FLNG Facility
),
|
30.6
|
Waiver
|
30.7
|
Counterparts
|
(a)
|
This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
|
(b)
|
A Party may enter into this Agreement by executing any such counterpart (including by way of providing a pdf version of such counterpart in the first instance, provided that a hard copy containing the original signature page(s) of the original executed counterpart is provided to the other Party in due course).
|
30.8
|
Entire Agreement
|
(a)
|
except for the Gap Agreement and the Direct Agreements, this Agreement constitutes the entire and only agreement between the Parties relating to its subject matter of this Agreement; and
|
(b)
|
it has not been induced to enter into this Agreement in reliance upon, nor has it been given, any warranty, representations, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in this Agreement and, to the extent that any of them have been, it unconditionally and irrevocably waives any claims, rights or remedies which any of them might otherwise have had in relation thereto,
|
30.9
|
Amendments
|
30.10
|
Independent Contractor
|
30.11
|
Surviving Obligations
|
31.
|
BUSINESS PRINCIPLES
|
31.1
|
Prohibited Acts
|
(a)
|
to directly or indirectly offer, promise or give to any person anything of value, monetary or nonmonetary, without limitation, to:
|
(i)
|
induce or influence that person to perform improperly a relevant function or activity; or
|
(ii)
|
reward that person for improper performance of a relevant function or activity; or
|
(b)
|
to directly or indirectly request, agree to receive or accept anything of value, monetary or nonmonetary, without limitation, from any person as an inducement or a reward for improper performance of a relevant function or activity; or
|
(c)
|
to violate any anti-bribery, corruption or anti-money laundering Law or equivalent applicable to a Party including the United Kingdom's Bribery Act of 2010, the United States of America's Foreign Corrupt Practices Act of 1977, any applicable country legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials and all applicable successor legislation ("
Anti-Corruption Laws
").
|
31.2
|
Representations and Warranties
|
(a)
|
it shall not and shall procure that any of its employees (including any employees of an Affiliate of such Party), consultants, agents or sub-contractors (including Key Contractors) shall not commit a Prohibited Act;
|
(b)
|
it is not aware of anything of value being given or promised to any person, excluding any arrangement of which full details have been disclosed in writing to the other Parties before formation of this Agreement; and
|
(c)
|
to the extent it has not already done so, it shall institute and maintain policies and procedures, including the maintenance of complete and accurate books and records and an effective system of internal accounting controls, which are designed to prevent it or any of its employees (including any employees of an Affiliate of such Party), consultants, agents or subcontractors (including Key Contractors) from committing a Prohibited Act, and shall enforce those policies, procedures and controls where appropriate.
|
31.3
|
Mutual Assistance
|
(a)
|
provide the other Party or Parties with any reasonable assistance to enable the other Party or Parties to perform any activity required by any relevant Governmental Authority in any relevant jurisdiction for the purpose of compliance with Anti-Corruption Laws; and
|
(b)
|
within twenty (20) Business Days of the Effective Date, and annually thereafter during the Term, certify to the other Parties in writing compliance with this Clause 31 (
Business Principles
) by the Party and any consultants, agents or subcontractors engaged by the Party in connection with this Agreement. The Party shall provide such supporting evidence of compliance as the other Party or Parties may reasonably request.
|
31.4
|
Policy
|
31.5
|
Suspected Breach
|
(a)
|
immediately notify the other Parties; and
|
(b)
|
respond promptly to the other Parties' enquiries, co-operate with any investigation and allow the other Parties to audit books, records and any other relevant documentation in connection with this Agreement.
|
31.6
|
Duration of Obligations
|
32.
|
DIGITAL SECURITY
|
32.1
|
General Digital Security Obligation
|
(a)
|
technical and organisational measures; and
|
(b)
|
adequate security programmes and procedures to:
|
(i)
|
prevent any accidental, unauthorised or unlawful access to, processing, loss, destruction, damage, disclosure, or other misuse of the Lessee's Confidential Information; and
|
(ii)
|
protect the Owner's and the Operator's IT systems used to provide the Work and Operating Services.
|
32.2
|
Measures
|
(a)
|
boundary firewalls and internet gateways to protect the Owner's and the Operator's networks and IT systems from the internet and other external networks;
|
(b)
|
secure configuration of the Owner's and the Operator's networks, IT systems, applications and devices, including encryption of portable devices and removable media;
|
(c)
|
physical and logical access controls that restrict access to only authorised users to the extent required to perform the Work or the Operating Services (as applicable);
|
(d)
|
malware protection software that is designed to prevent the introduction of malware into the Owner's and the Operator's IT systems, networks and devices;
|
(e)
|
patch management practices to identify, assess and apply applicable security patches to the Owner's and the Operator's IT systems, applications and devices;
|
(f)
|
training and awareness for the Owner's and the Operator's Personnel in information security and the handling of personal data in accordance with the terms of this Agreement; and
|
(g)
|
clearly defined security responsibilities, and processes for risk management, access control, authorization and administration, security design and configuration management, audit, and assurance.
|
32.3
|
Digital Security Audit
|
32.4
|
Investigations and Notifications
|
32.5
|
Compliance with Information Security Requirements For Suppliers
|
33.
|
HUMAN RIGHTS
|
(a)
|
not employing, engaging or otherwise using forced labour, trafficked labour or exploitative child labour; nor engaging in or condoning abusive or inhumane treatment of workers;
|
(b)
|
providing workers with written terms and conditions under which they will work in a language understandable to the worker;
|
(c)
|
not requiring workers to pay charges or fees under any pretext in consideration for employment or applying deductions from the workers' remuneration as collateral for continued service;
|
(d)
|
not withholding travel or other identity documents or otherwise unreasonably inhibiting the free movement of any workers (directly or indirectly);
|
(e)
|
providing access to effective grievance mechanisms, providing equal opportunities, avoiding retaliation or discrimination and respecting freedom of association of workers, in each case within the relevant national legal framework; and
|
(f)
|
mitigating or avoiding adverse human rights impacts to communities arising from the Owner or the Operator's activities to the extent practicable.
|
34.
|
AGENCY
|
(a)
|
The Lessee enters into this Agreement for itself and as agent for and on behalf of the Co-venturers.
|
(b)
|
Without prejudice to Clause 30.5 (
Rights of Third Parties
), in respect of this Agreement:
|
(i)
|
subject to Clauses 23.6(b) and 23.6(c) (
Cure Periods
), each of the Owner and the Operator agrees to look only to the Lessee for the due performance of this Agreement and nothing contained in this Agreement will impose any liability upon, or entitle the Owner or the Operator to commence any proceedings against, any of the Co-venturers other than the Lessee;
|
(ii)
|
the Lessee is entitled to enforce this Agreement on behalf of all the Co-venturers as well as for itself. For that purpose the Lessee may commence proceedings in its own name to enforce all obligations and liabilities of the Owner or the Operator and to make any claim, solely in relation to this Agreement, which any of the Co-venturers may have against the Owner or the Operator; and
|
(iii)
|
all Claims recoverable by the Lessee pursuant to this Agreement or otherwise shall include the Claims of the Co-venturers and its and their respective Affiliates, except that such Claims shall be subject to the same limitations or exclusions.
|
EXECUTED
by
|
|
GIMI MS CORPORATION
|
)
|
acting by
|
)
|
Name:_
/s/ Iain Ross
_________________
|
)
|
|
|
EXECUTED
by
|
|
BP MAURITANIA INVESTMENTS LIMITED
|
)
|
acting by
|
)
|
Name:_
/s/ Andrew Charles Lane
________
|
)
|
|
|
|
|
|
|
Name
|
Jurisdiction of Incorporation
|
|
|
Golar LNG 2216 Corporation
|
Marshall Islands
|
Golar Management Limited
|
United Kingdom
|
Golar Management Malaysia SDN. BDH.
|
Malaysia
|
Golar Management Norway AS
|
Norway
|
Golar Management D.O.O
|
Croatia
|
Golar GP LLC – Limited Liability Company
|
Marshall Islands
|
Golar LNG Energy Limited
|
Bermuda
|
Golar Gimi Corporation
|
Marshall Islands
|
Golar Hilli Corp. *
|
Marshall Islands
|
Golar Gandria N.V.
|
Curaçao
|
Golar Hull M2021 Corporation
|
Marshall Islands
|
Golar Hull M2022 Corporation
|
Marshall Islands
|
Golar Hull M2027 Corporation
|
Marshall Islands
|
Golar Hull M2047 Corporation
|
Marshall Islands
|
Golar Hull M2048 Corporation
|
Marshall Islands
|
Golar LNG NB10 Corporation
|
Marshall Islands
|
Golar LNG NB11 Corporation
|
Marshall Islands
|
Golar LNG NB12 Corporation
|
Marshall Islands
|
Golar LNG NB13 Corporation
|
Marshall Islands
|
GVS Corporation
|
Marshall Islands
|
Golar Shoreline LNG Limited
|
Bermuda
|
Golar Hilli LLC *
|
Marshall Islands
|
|
|
|
|
/s/ Iain Ross
|
|
Iain Ross
|
|
Principal Executive Officer
|
|
|
|
|
|
/s/ Graham Robjohns
|
|
Graham Robjohns
|
|
Principal Financial Officer
|
|
a)
|
This Annual Report (Form 20-F) of Golar LNG for the year ended December 31, 2018,
|
b)
|
Registration Statement (Form F-3 No. 333-219095) of Golar LNG Limited and in the related Prospectus, and
|
c)
|
Registration Statement (Form S-8 No. 333-221666) pertaining to Long-Term Incentive plan of Golar LNG Limited,
|