o
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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 December 31, 2015
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OR
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o
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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 to
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OR
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o
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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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GOLAR LNG PARTNERS LP
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(Exact name of Registrant as specified in its charter)
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Republic of the Marshall Islands
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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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Graham Robjohns
2nd Floor, S.E. Pearman Building
9 Par-la-Ville Road
Hamilton, HM 11, Bermuda
Telephone: +1 (441) 295-4705
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(Name, Telephone, Email and/or Facsimile Number and Address of the Company Contact Person)
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Title of each class
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Name of each exchange on which registered
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Common units representing limited partner interests
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Nasdaq Global Market
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45,167,096 Common Units representing limited partner interests
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15,949,831 Subordinated Units representing limited partner interests
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Large accelerated filer
x
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Accelerated filer
o
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Non-accelerated filer
o
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U.S. GAAP
x
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International Financial Reporting Standards as issued
by the International Accounting Standards Board
o
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Other
o
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Item 1.
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Item 2.
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Item 3.
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A.
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B.
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C.
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D.
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Item 4.
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A.
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B.
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C.
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D.
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Item 4A.
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Item 5.
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A.
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B.
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C.
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D.
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E.
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F.
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G.
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Item 6.
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A.
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B.
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C.
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D.
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E.
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Item 7.
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A.
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B.
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C.
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Item 8.
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A.
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B.
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Item 9.
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Item 10.
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A.
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B.
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C.
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D.
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E.
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F.
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G.
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H.
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I.
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Item 11.
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Item 12.
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Item 13.
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Item 14.
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Item 15.
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Item 16.
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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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Item 17.
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Item 18.
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Item 19.
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•
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market trends in the floating storage regasification unit (or FSRU), liquefied natural gas (or LNG) carrier and floating liquefied natural gas vessel (or FLNG) industries, including charter rates, factors affecting supply and demand, and opportunities for the profitable operations of FSRUs, LNG carriers and FLNGs;
|
•
|
our and Golar’s ability to retrofit vessels as FSRUs or FLNGs and the timing of the delivery and acceptance of any such retrofitted vessels by their respective charterers;
|
•
|
our ability to pay cash distributions on our units and the amount of any such distributions;
|
•
|
our ability to integrate and realize the expected benefits from acquisitions;
|
•
|
our ability to close the
Golar Tundra
acqusition:
|
•
|
our anticipated growth strategies;
|
•
|
the effect of a worldwide economic slowdown;
|
•
|
turmoil in the global financial markets;
|
•
|
fluctuations in currencies and interest rates;
|
•
|
general market conditions, including fluctuations in charter hire rates and vessel values;
|
•
|
the liquidity and creditworthiness of our customers;
|
•
|
changes in our operating expenses, including drydocking and insurance costs and bunker prices;
|
•
|
our future financial condition or results of operations and our future revenues and expenses;
|
•
|
the repayment of debt and settling of interest rate swaps;
|
•
|
our ability to make additional borrowings and to access debt and equity markets;
|
•
|
planned capital expenditures and availability of capital resources to fund capital expenditures;
|
•
|
the exercise of purchase options by our charterers;
|
•
|
our ability to maintain long-term relationships with major LNG traders;
|
•
|
our ability to leverage Golar’s relationships and reputation in the shipping industry;
|
•
|
our ability to purchase vessels from Golar in the future;
|
•
|
our continued ability to enter into long-term time charters, including charters for floating storage and regasification projects;
|
•
|
our ability to maximize the use of our vessels, including the re-deployment or disposition of vessels no longer under long-term time charter;
|
•
|
timely purchases and deliveries of newbuilding vessels;
|
•
|
future purchase prices of newbuildings and secondhand vessels;
|
•
|
our ability to compete successfully for future chartering and newbuilding opportunities;
|
•
|
acceptance of a vessel by its charterer;
|
•
|
termination dates and extensions of charters;
|
•
|
the expected cost of, and our ability to comply with, governmental regulations, maritime self-regulatory organization standards, as well as standard regulations imposed by our charterers applicable to our business;
|
•
|
availability of skilled labor, vessel crews and management;
|
•
|
our general and administrative expenses and our fees and expenses payable under the fleet management agreements and the management and administrative services agreement;
|
•
|
the anticipated taxation of our partnership and distributions to our unitholders;
|
•
|
estimated future maintenance and replacement capital expenditures;
|
•
|
our ability to retain key employees;
|
•
|
customers’ increasing emphasis on environmental and safety concerns;
|
•
|
potential liability from any pending or future litigation;
|
•
|
potential disruption of shipping routes due to accidents, political events, piracy or acts by terrorists;
|
•
|
future sales of our common units in the public market;
|
•
|
our business strategy and other plans and objectives for future operations;
|
•
|
challenges by authorities to the tax benefits we previously obtained; and
|
•
|
other factors detailed in this Annual Report and from time to time in our periodic reports.
|
|
Year Ended December 31,
|
||||||||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
2012
|
|
2011
|
||||||||||
|
(in thousands except for unit and fleet data)
|
||||||||||||||||||
Statement of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Total operating revenues
|
$
|
434,687
|
|
|
$
|
396,026
|
|
|
$
|
329,190
|
|
|
$
|
286,630
|
|
|
$
|
225,452
|
|
Vessel operating expenses
(1)
|
65,244
|
|
|
59,191
|
|
|
52,390
|
|
|
45,474
|
|
|
39,212
|
|
|||||
Voyage and commission expenses
(2)
|
7,724
|
|
|
6,048
|
|
|
5,239
|
|
|
4,471
|
|
|
785
|
|
|||||
Administrative expenses
|
6,643
|
|
|
5,757
|
|
|
5,194
|
|
|
7,269
|
|
|
8,235
|
|
|||||
Depreciation and amortization
|
99,256
|
|
|
80,574
|
|
|
66,336
|
|
|
51,167
|
|
|
45,316
|
|
|||||
Total operating expenses
|
178,867
|
|
|
151,570
|
|
|
129,159
|
|
|
108,381
|
|
|
93,548
|
|
|||||
Operating income
|
255,820
|
|
|
244,456
|
|
|
200,031
|
|
|
178,249
|
|
|
131,904
|
|
|||||
Interest income
|
1,315
|
|
|
1,131
|
|
|
1,097
|
|
|
1,797
|
|
|
1,640
|
|
|||||
Interest expense
|
(55,324
|
)
|
|
(43,781
|
)
|
|
(43,195
|
)
|
|
(38,090
|
)
|
|
(19,581
|
)
|
|||||
Other financial items, net
|
(23,459
|
)
|
|
(22,118
|
)
|
|
(1,661
|
)
|
|
(5,389
|
)
|
|
(18,521
|
)
|
|||||
Income before income taxes
|
178,352
|
|
|
179,688
|
|
|
156,272
|
|
|
136,567
|
|
|
95,442
|
|
|||||
Income taxes
|
(5,669
|
)
|
|
5,047
|
|
|
(5,453
|
)
|
|
(9,426
|
)
|
|
(45
|
)
|
|||||
Net income
|
172,683
|
|
|
184,735
|
|
|
150,819
|
|
|
127,141
|
|
|
95,397
|
|
|||||
Net income attributable to non-controlling interest
(3)
|
(10,547
|
)
|
|
(10,581
|
)
|
|
(9,523
|
)
|
|
(10,723
|
)
|
|
(9,863
|
)
|
|||||
Net income attributable to Golar LNG Partners owners
|
$
|
162,136
|
|
|
$
|
174,154
|
|
|
$
|
141,296
|
|
|
$
|
116,418
|
|
|
$
|
85,534
|
|
Earnings Per Unit (Basic and Diluted)
|
|
|
|
|
|
|
|
|
|
||||||||||
Common units
|
$
|
2.38
|
|
|
$
|
2.47
|
|
|
$
|
2.31
|
|
|
$
|
2.08
|
|
|
$
|
1.89
|
|
Cash distributions declared and paid per unit
|
2.30
|
|
|
2.14
|
|
|
2.05
|
|
|
1.78
|
|
|
0.73
|
|
|||||
Balance Sheet Data (at end of period):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Cash and cash equivalents
|
$
|
40,686
|
|
|
$
|
98,998
|
|
|
$
|
103,100
|
|
|
$
|
66,327
|
|
|
$
|
49,218
|
|
Restricted cash and short-term investments
(4)
|
56,714
|
|
|
25,831
|
|
|
24,451
|
|
|
30,900
|
|
|
24,512
|
|
|||||
Long-term restricted cash
(4)
|
136,559
|
|
|
146,552
|
|
|
145,725
|
|
|
190,523
|
|
|
185,270
|
|
|||||
Vessels and equipment, net
|
1,730,676
|
|
|
1,501,170
|
|
|
1,281,591
|
|
|
707,147
|
|
|
662,021
|
|
|||||
Vessels under capital lease, net
|
116,727
|
|
|
122,253
|
|
|
127,693
|
|
|
485,632
|
|
|
501,903
|
|
|||||
Total assets
|
2,245,338
|
|
|
1,956,202
|
|
|
1,721,219
|
|
|
1,510,974
|
|
|
1,437,813
|
|
|||||
Current portion of long-term debt
|
121,739
|
|
|
124,221
|
|
|
156,363
|
|
|
64,822
|
|
|
49,906
|
|
|||||
Current portion of obligations under capital leases
|
—
|
|
|
—
|
|
|
—
|
|
|
5,837
|
|
|
5,909
|
|
|||||
Long-term debt
|
1,223,049
|
|
|
908,311
|
|
|
733,108
|
|
|
674,650
|
|
|
572,978
|
|
|||||
Long-term obligations under capital leases
|
143,112
|
|
|
150,997
|
|
|
159,008
|
|
|
406,534
|
|
|
399,934
|
|
|||||
Partner’s capital
|
539,475
|
|
|
536,207
|
|
|
501,744
|
|
|
178,675
|
|
|
32,069
|
|
|||||
Number of units issued and outstanding:
|
|
|
|
|
|
|
|
|
|
||||||||||
Common units
|
45,167,096
|
|
|
45,663,096
|
|
|
45,663,096
|
|
|
36,246,149
|
|
|
23,127,254
|
|
|||||
Subordinated units
|
15,949,831
|
|
|
15,949,831
|
|
|
15,949,831
|
|
|
15,949,831
|
|
|
15,949,831
|
|
|||||
Cash Flow Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Net cash provided by operating activities
|
$
|
212,230
|
|
|
$
|
276,980
|
|
|
$
|
148,679
|
|
|
$
|
189,343
|
|
|
$
|
156,972
|
|
Net cash used in investing activities
|
734
|
|
|
(167,755
|
)
|
|
(84,052
|
)
|
|
(78,798
|
)
|
|
(102,881
|
)
|
|||||
Net cash used in financing activities
|
(271,276
|
)
|
|
(113,327
|
)
|
|
(27,854
|
)
|
|
(93,436
|
)
|
|
(58,431
|
)
|
|
Year Ended December 31,
|
||||||||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
2012
|
|
2011
|
||||||||||
Fleet Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Number of vessels at end of period
(5)
|
10
|
|
|
9
|
|
|
8
|
|
|
7
|
|
|
7
|
|
|||||
Average number of vessels during period
(5)
|
10
|
|
|
9
|
|
|
8
|
|
|
7
|
|
|
7
|
|
|||||
Average age of vessels
|
17
|
|
|
18
|
|
|
19
|
|
|
20
|
|
|
19
|
|
|||||
Total calendar days for fleet
|
3,631
|
|
|
3,199
|
|
|
2,883
|
|
|
2,562
|
|
|
2,555
|
|
|||||
Total operating days for fleet
(5)
|
3,518
|
|
|
3,196
|
|
|
2,751
|
|
|
2,408
|
|
|
2,162
|
|
|||||
Other Financial Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Average daily time charter equivalent earnings (TCE)
(6)
|
$
|
120,373
|
|
|
$
|
121,906
|
|
|
$
|
117,758
|
|
|
$
|
116,739
|
|
|
$
|
103,581
|
|
Average daily vessel operating expenses
(7)
|
$
|
17,969
|
|
|
$
|
18,502
|
|
|
$
|
18,172
|
|
|
$
|
17,749
|
|
|
$
|
15,347
|
|
(1)
|
Vessel operating expenses are the direct costs associated with operating a vessel, including crew wages, vessel supplies, routine repairs, maintenance, insurance, lubricating oils, and management fees.
|
(2)
|
The vessels have been operated under time charters during the period presented. Under time charter, the charterer pays substantially all of the vessel operating expense, which are primarily fuel and port expenses.
|
(3)
|
Non controlling interest refers to a 40% interest in the
Golar Mazo
owned by Chinese Petroleum Corporation.
|
(4)
|
Restricted cash and short-term investments consist of bank deposits which i) may only be used to settle certain pre-arranged loans, facilities or lease payments; ii) are held as cash collateral for decline in fair values of certain swaps; iii) represent cash held by our variable interest entity (
“
VIE
”
); and iv) are made in accordance with our contractual obligations under bid or performance guarantees for projects we may enter into.
|
(5)
|
The operating days for our fleet is the total number of days in a given period that the vessels were in our possession less the total number of days off-hire. We define days off-hire as days lost to, among other things, operational deficiencies, drydocking for repairs, maintenance or inspection, equipment breakdowns, special surveys and vessel upgrades, delays due to accidents, crewing strikes, certain vessel detentions or similar problems, or our failure to maintain the vessel in compliance with its specifications and contractual standards or to provide the required crew, or during periods of commercial waiting time during which we do not earn charter hire.
|
(6)
|
Non-GAAP Financial Measures
|
|
Year Ended December 31,
|
||||||||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
2012
|
|
2011
|
||||||||||
|
(dollars in thousands, except average daily TCE)
|
||||||||||||||||||
Total operating revenues
|
$
|
434,687
|
|
|
$
|
396,026
|
|
|
$
|
329,190
|
|
|
$
|
286,630
|
|
|
$
|
225,452
|
|
Voyage and commission expenses
|
(7,724
|
)
|
|
(6,048
|
)
|
|
(5,239
|
)
|
|
(4,471
|
)
|
|
(785
|
)
|
|||||
|
$
|
426,963
|
|
|
$
|
389,978
|
|
|
$
|
323,951
|
|
|
$
|
282,159
|
|
|
$
|
224,667
|
|
Calendar days less scheduled off-hire days
|
3,547
|
|
|
3,199
|
|
|
2,751
|
|
|
2,417
|
|
|
2,169
|
|
|||||
Average daily TCE (in $)
|
$
|
120,373
|
|
|
$
|
121,906
|
|
|
$
|
117,758
|
|
|
$
|
116,739
|
|
|
$
|
103,581
|
|
(7)
|
We calculate average daily vessel operating expenses by dividing vessel operating expenses by the number of calendar days.
|
•
|
renew existing charters upon their expiration;
|
•
|
obtain new charters;
|
•
|
successfully interact with shipyards;
|
•
|
obtain financing on commercially acceptable terms;
|
•
|
recover amounts due to us; or
|
•
|
maintain satisfactory relationships with suppliers and other third parties
|
•
|
the rates we obtain from our charters;
|
•
|
the level of our operating costs, such as the cost of crews and insurance;
|
•
|
the continued availability of natural gas production, liquefaction and regasification facilities;
|
•
|
the price of and demand for natural gas and oil;
|
•
|
the price of and demand for LNG;
|
•
|
supply of LNG carriers and FSRUs;
|
•
|
prevailing global and regional economic and political conditions;
|
•
|
changes in local income tax rates;
|
•
|
currency exchange rate fluctuations; and
|
•
|
the effect of governmental regulations and maritime self-regulatory organization standards on the conduct of our business.
|
•
|
the level of capital expenditures we make, including for maintaining or replacing vessels, building new vessels, acquiring existing vessels and complying with regulations;
|
•
|
the number of unscheduled off-hire days for our fleet and the timing of, and number of days required for, scheduled drydocking of our vessels;
|
•
|
our debt service requirements and restrictions on distributions contained in our debt instruments;
|
•
|
the level of debt we will incur to fund future acquisitions;
|
•
|
fluctuations in interest rates;
|
•
|
fluctuations in our working capital needs;
|
•
|
variable tax rates;
|
•
|
our ability to make, and the level of, working capital borrowings; and
|
•
|
the amount of any cash reserves established by our board of directors.
|
•
|
the cost of labor and materials;
|
•
|
customer requirements;
|
•
|
fleet size;
|
•
|
the cost of replacement vessels;
|
•
|
length of charters;
|
•
|
governmental regulations and maritime self-regulatory organization standards relating to safety, security or the environment; and
|
•
|
competitive standards.
|
•
|
fail to realize anticipated benefits, such as new customer relationships, cost-savings or cash flow enhancements;
|
•
|
be unable to hire, train or retain qualified shore and seafaring personnel to manage and operate our growing business and fleet;
|
•
|
decrease our liquidity by using a significant portion of our available cash or borrowing capacity to finance acquisitions;
|
•
|
significantly increase our interest expense or financial leverage if we incur additional debt to finance acquisitions;
|
•
|
incur or assume unanticipated liabilities, losses or costs associated with the business or vessels acquired; or
|
•
|
incur other significant charges, such as impairment of goodwill or other intangible assets, asset devaluation or restructuring charges.
|
•
|
the price and availability of crude oil and other energy sources;
|
•
|
increases in interest rates or other events that may affect the availability of sufficient financing for LNG projects on commercially reasonable terms;
|
•
|
increases in the cost of natural gas derived from LNG relative to the cost of natural gas generally;
|
•
|
increases in the production levels of low-cost natural gas in domestic natural gas consuming markets, which could further depress prices for natural gas in those markets and make LNG uneconomical;
|
•
|
decreases in the cost, or increases in the demand for, conventional land-based regasification systems, which could occur if providers or users of regasification services seek greater economies of scale than FSRUs 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;
|
•
|
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;
|
•
|
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;
|
•
|
infrastructure constraints such as delays in the construction of liquefaction facilities, the inability of project owners or operators to obtain governmental approvals to construct or operate LNG facilities, as well as community or political action group resistance to new LNG infrastructure due to concerns about the environment, safety and terrorism;
|
•
|
labor or political unrest or military conflicts affecting existing or proposed areas of LNG production or regasification;
|
•
|
decreases in the price of LNG, which might decrease the expected returns relating to investments in LNG projects;
|
•
|
availability of new, alternative energy sources, including compressed natural gas; and
|
•
|
negative global or regional economic or political conditions, particularly in LNG consuming regions, which could reduce energy consumption or its growth.
|
•
|
price and availability of crude oil and petroleum products;
|
•
|
worldwide demand for natural gas;
|
•
|
the cost of exploration, development, production, transportation and distribution of natural gas;
|
•
|
expectations regarding future energy prices for both natural gas and other sources of energy;
|
•
|
the level of worldwide LNG production and exports;
|
•
|
government laws and regulations, including but not limited to environmental protection laws and regulations;
|
•
|
local and international political, economic and weather conditions;
|
•
|
political and military conflicts;
|
•
|
the availability and cost of alternative energy sources, including alternate sources of natural gas in gas importing and consuming countries; or
|
•
|
the availability and cost of alternative energy sources, including alternate sources of natural gas in gas importing and consuming countries.
|
•
|
a reduction in exploration for or development of new natural gas reserves or projects, or the delay or cancellation of existing projects as energy companies lower their capital expenditures budgets, which may reduce our growth opportunities;
|
•
|
low oil prices negatively affecting both the competitiveness of natural gas as a fuel for power generation and the market price of natural gas, to the extent that natural gas prices are benchmarked to the price of crude oil;
|
•
|
lower demand for vessels of the types we own and operate, which may reduce available charter rates and revenue to us upon redeployment of our vessels following expiration or termination of existing contracts;
|
•
|
customers potentially seeking to renegotiate or terminate existing vessel contracts, or failing to extend or renew contracts upon expiration;
|
•
|
the inability or refusal of customers to make charter payments to us due to financial constraints or otherwise; or
|
•
|
declines in vessel values, which may result in losses to us upon vessel sales or impairment charges against our earnings.
|
•
|
the customer fails to make charter payments because of its financial inability, disagreements with us or otherwise;
|
•
|
the customer exercises its right to terminate the charter in certain circumstances, such as:
|
•
|
loss of the vessel or damage to it beyond repair;
|
•
|
defaults of our obligations under the charter, including prolonged periods of off-hire;
|
•
|
in the event of war or hostilities that would significantly disrupt the free trade of the vessel;
|
•
|
requisition by any governmental authority; or
|
•
|
with respect to the
Golar Spirit
, the
Golar Winter,
the
Golar Freeze
and the
Golar Eskimo
, upon six months’ written notice at any time after the fifth or tenth anniversary of the commencement of the related charter upon payment of a termination fee; or
|
•
|
a prolonged force majeure event affecting the customer, including damage to or destruction of relevant production facilities, war or political unrest prevents us from performing services for that customer.
|
•
|
our ability to obtain additional financing, if necessary, for working capital, capital expenditures, acquisitions or other purposes may be limited 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 distributions to unitholders;
|
•
|
our debt level will make us more vulnerable than our competitors with less debt to competitive pressures or a downturn in our business or the economy generally; and
|
•
|
our debt level may limit our flexibility in responding to changing business and economic conditions.
|
•
|
merge or consolidate with any other person;
|
•
|
make certain capital expenditures;
|
•
|
pay distributions to our unitholders;
|
•
|
terminate or materially amend certain of our charters;
|
•
|
enter into any other line of business;
|
•
|
make any acquisitions;
|
•
|
incur additional indebtedness or grant any liens to secure any of our existing or future indebtedness;
|
•
|
enter into any sale-leaseback transactions; or
|
•
|
enter into any transactions with our affiliates.
|
•
|
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 facility, FSRU or LNG carrier; and
|
•
|
labor or political unrest affecting existing or proposed areas of LNG production and regasification.
|
•
|
its LNG shipping and FSRU experience, technical ability and reputation for operation of highly specialized vessels;
|
•
|
its shipping industry relationships and reputation for customer service and safety;
|
•
|
the quality and experience of its seafaring crew;
|
•
|
its financial stability and ability to finance FSRUs and LNG carriers at competitive rates;
|
•
|
its relationships with shipyards and construction management experience; and
|
•
|
its willingness to accept operational risks pursuant to the charter.
|
•
|
prevailing economic 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 size and age of a vessel; and
|
•
|
the cost of 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.
|
•
|
marine disasters;
|
•
|
piracy;
|
•
|
environmental accidents;
|
•
|
bad weather;
|
•
|
mechanical failures;
|
•
|
grounding, fire, explosions and collisions;
|
•
|
human error; and
|
•
|
war and terrorism.
|
•
|
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;
|
•
|
higher insurance rates; and
|
•
|
damage to our reputation and customer relationships generally.
|
•
|
neither our partnership agreement nor any other agreement requires our general partner or Golar or its affiliates to pursue a business strategy that favors us or utilizes our assets, and Golar’s officers and directors have a fiduciary duty to make decisions in the best interests of the shareholders of Golar, which may be contrary to our interests;
|
•
|
our partnership agreement permits our general partner to make a number of decisions in its individual capacity, as opposed to in its capacity as our general partner. Specifically, our general partner will be considered to be acting in its individual capacity if it exercises its call right, preemptive rights, registration rights or right to make a determination to receive common units in exchange for resetting the target distribution levels related to the incentive distribution rights, consents or withholds consent to any merger or consolidation of the partnership, appoints any directors or votes for the election of any director, votes or refrains from voting on amendments to our partnership agreement that require a vote of the outstanding units, voluntarily withdraws from the partnership, transfers (to the extent permitted under our partnership agreement) or refrains from transferring its units, general partner interest or incentive distribution rights or votes upon the dissolution of the partnership;
|
•
|
our general partner and our directors have limited their liabilities and reduced their fiduciary duties under the laws of the Marshall Islands, while also restricting the remedies available to our unitholders, and, as a result of purchasing common units, unitholders are treated as having agreed to the modified standard of fiduciary duties and to certain actions that may be taken by our general partner and our directors, all as set forth in the partnership agreement;
|
•
|
our general partner is entitled to reimbursement of all reasonable costs incurred by it and its affiliates for our benefit;
|
•
|
our partnership agreement does not restrict us from paying our general partner or its affiliates for any services rendered to us on terms that are fair and reasonable or entering into additional contractual arrangements with any of these entities on our behalf;
|
•
|
our general partner may exercise its right to call and purchase our common units if it and its affiliates own more than 80% of our common units; and our general partner is not obligated to obtain a fairness opinion regarding the value of the common units to be repurchased by it upon the exercise of its limited call right.
|
•
|
permits our general partner to make a number of decisions in its individual capacity, as opposed to in its capacity as our general partner. Where our partnership agreement permits, our general partner may consider only the interests and factors that it desires, and in such cases it has no fiduciary duty or obligation to give any consideration to any interest of, or
|
•
|
provides that our general partner and our directors are entitled to make other decisions in “good faith” if they reasonably believe that the decision is in our best interests;
|
•
|
generally provides that affiliated transactions and resolutions of conflicts of interest not approved by the conflicts committee of our board of directors and not involving a vote of unitholders must be on terms no less favorable to us than those generally being provided to or available from unrelated third parties or be “fair and reasonable” to us and that, in determining whether a transaction or resolution is “fair and reasonable”, our board of directors may consider the totality of the relationships between the parties involved, including other transactions that may be particularly advantageous or beneficial to us; and
|
•
|
provides that neither our general partner nor our officers or our directors will be liable for monetary damages to us, our limited partners or assignees for any acts or omissions unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that our general partner or directors or its officers or directors or those other persons engaged in actual fraud or willful misconduct.
|
•
|
The vote of the holders of at least 66⅔% of all outstanding common and subordinated units voting together as a single class is required to remove the general partner. Golar currently owns approximately
29.2%
of the outstanding common and subordinated units.
|
•
|
If our general partner is removed without “cause” during the subordination period and units held by our general partner and Golar are not voted in favor of that removal, all remaining subordinated units will automatically convert into common units, any existing arrearages on the common units will be extinguished, and our general partner will have the right to convert its general partner interest and its IDRs (and Golar will have the right to convert its IDRs) into common units or to receive cash in exchange for those interests based on the fair market value of those interests at the time. A removal of our general partner under these circumstances would adversely affect the common units by prematurely eliminating their
|
•
|
Common unitholders are entitled to elect only four of the seven members of our board of directors. Our general partner in its sole discretion appoints the remaining three directors.
|
•
|
Election of the four directors elected by unitholders is staggered, meaning that the member(s) of only one of three classes of our elected directors will be selected each year. In addition, the directors appointed by our general partner serve for terms determined by our general partner.
|
•
|
Our partnership agreement contains provisions limiting the ability of unitholders to call meetings of unitholders, to nominate directors and to acquire information about our operations as well as other provisions limiting the unitholders’ ability to influence the manner or direction of management.
|
•
|
Unitholders’ voting rights are further restricted by the partnership agreement provision providing that if any person or group owns beneficially more than 4.9% of any class of units then outstanding, any such units owned by that person or group in excess of 4.9% may not be voted on any matter and will not be considered to be outstanding when sending notices of a meeting of unitholders, calculating required votes (except for purposes of nominating a person for election to our board), determining the presence of a quorum or for other similar purposes, unless required by law. The voting rights of any such unitholders in excess of 4.9% will effectively be redistributed pro rata among the other common unitholders holding less than 4.9% of the voting power of all classes of units entitled to vote. Our general partner, its affiliates and persons who acquired common units with the prior approval of our board of directors will not be subject to this 4.9% limitation except with respect to voting their common units in the election of the elected directors.
|
•
|
There are no restrictions in our partnership agreement on our ability to issue equity securities.
|
•
|
our unitholders’ proportionate ownership interest in us will decrease;
|
•
|
the amount of cash available for distribution on each unit may decrease;
|
•
|
because a lower percentage of total outstanding units will be subordinated units, the risk that a shortfall in the payment of the minimum quarterly distribution will be borne by our common unitholders will increase;
|
•
|
the relative voting strength of each previously outstanding unit may be diminished; and
|
•
|
the market price of the common units may decline.
|
•
|
Pursue strategic and accretive acquisitions of FSRUs and LNG carriers and in the future, possibly FLNG vessels.
We believe our affiliation with Golar positions us to pursue a broader array of growth opportunities, including strategic and accretive acquisitions from Golar, with Golar or from third parties. Golar is not required to offer to us, and we are not required to purchase, any FLNG assets.
|
•
|
Compete for long-term charter contracts for FSRUs and LNG carriers when attractive opportunities arise.
We intend to work with Golar to participate in competitive tender processes and engage in negotiated transactions with potential charterers for both FSRUs and LNG carriers when attractive opportunities arise by leveraging on the strength of the industry expertise of Golar and our publicly traded partnership status.
|
•
|
Manage our fleet and our customer relationships to provide a stable base of cash flows and superior operating performance.
We intend to manage the stability of cash flows in our fleet by actively seeking the extension or renewal of existing charters, entering into new long-term charters with current customers and identifying potential business opportunities with new high-quality charterers.
|
•
|
The
Moss
system was developed in the 1970s and uses free standing insulated spherical tanks supported at the equator by a continuous cylindrical skirt. In this system, the tank and the hull of the vessel are two separate structures.
|
•
|
The
Membrane
system uses insulation built directly into the hull of the vessel, along with a membrane covering inside the tanks to maintain their integrity. In this system, the vessel’s hull directly supports the pressure of the LNG cargo.
|
•
|
FSRUs that are permanently located offshore;
|
•
|
FSRUs that are permanently near shore and attached to a jetty (with LNG transfer being either directly vessel to vessel or over a jetty);
|
•
|
shuttle carriers that regasify and discharge their cargoes offshore (sometimes referred to as energy bridge); and
|
•
|
shuttle carriers that regasify and discharge their cargoes alongside.
|
FSRU Vessel
|
|
Capacity
(cbm)
|
|
Base Offtake
Capacity
(Bcf/d)
|
|
Year of
Delivery
|
|
Year of FSRU Retrofitting
|
|
Current
Charter
Commencement
|
|
Charterer
|
|
Charter
Expiration
|
|
Charter
Extension
Option
Periods
|
||
Golar Spirit
|
|
128,000
|
|
|
0.25
|
|
|
1981
|
|
2007
|
|
July 2008
|
|
Petrobras
|
|
August 2018
|
|
Three years plus two years
|
Golar Winter
|
|
138,000
|
|
|
0.50
|
|
|
2004
|
|
2008
|
|
September 2009
|
|
Petrobras
|
|
September 2024
(1)
|
|
None
|
Golar Freeze
|
|
125,000
|
|
|
0.48
|
|
|
1977
|
|
2010
|
|
May 2010
|
|
DUSUP
|
|
May 2020
|
|
Terms extending up to 2025
(2)
|
NR Satu
(3)
|
|
125,000
|
|
|
0.50
|
|
|
1977
|
|
2012
|
|
May 2012
|
|
PTNR
|
|
December 2022
|
|
2025
|
Golar Igloo
|
|
170,000
|
|
|
0.50
|
|
|
2014
|
|
n/a
|
|
March 2014
|
|
KNPC
|
|
December 2018
|
|
One regasification season
|
Golar Eskimo
(4)
|
|
160,000
|
|
|
0.50
|
|
|
2014
|
|
n/a
|
|
June 2015
|
|
Jordan
|
|
June 2025
|
|
None
|
Total Capacity
|
|
846,000
|
|
|
2.73
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
The charter initially had a term of 10 years, expiring in 2019. However, in return for certain vessel modifications made at the request of Petrobras the charter was extended by a further five years to 2024. These modifications were completed in August 2013.
|
(2)
|
DUSUP has the option to extend the charter for two extension periods of two years and two years. DUSUP has an option to extend the initial term or either of the extension periods by one year.
|
(3)
|
We hold all of the voting stock and control all of the economic interests in PT Golar Indonesia (“PTGI”), the company that owns and operates the
NR Satu
, pursuant to a Shareholders’ Agreement with the other shareholder of PTGI, PT Pesona. PT Pesona holds the remaining 51% interest in the issued share capital of PTGI.
|
(4)
|
We acquired the
Golar Eskimo
in January 2015.
|
LNG Carrier
|
|
Capacity
(cbm)
|
|
Year of
Delivery
|
|
Charterer
|
|
Current
Charter
Expiration
|
|
Charter Extension
Option Periods
|
|
Golar Mazo
(1)
|
|
135,000
|
|
|
2000
|
|
Pertamina
|
|
December 2017
|
|
Five years plus five years
(2)
|
Methane Princess
|
|
138,000
|
|
|
2003
|
|
BG Group
|
|
March 2024
|
|
Five years plus five years
|
Golar Grand
|
|
145,700
|
|
|
2006
|
|
Golar
|
|
October 2017
|
(3)
|
none
|
Golar Maria
|
|
145,700
|
|
|
2006
|
|
Eni S.p.A.
|
|
December 2017
|
|
none
|
Total Capacity
|
|
564,400
|
|
|
|
|
|
|
|
|
|
(1)
|
We own a 60% interest in the
Golar Mazo
, and Chinese Petroleum Corporation holds the remaining 40% interest.
|
(2)
|
In addition, Pertamina has the right to one additional short-term extension of 2 to 12 months following either the initial period of the charter or an extension period.
|
(3)
|
BG Group did not exercise its option to extend its charter on the
Golar Grand
beyond February 2015. Accordingly, in February 2015, we exercised our option requiring Golar to charter the vessel through to October 2017 at approximately 75% of the hire rate that would have been payable by BG Group.
|
Vessel
|
Capital cost component
|
Operating cost component
|
Other
|
Changes to hire rate in the extension period (if applicable)
|
Golar Spirit
|
Increases on a bi-annual basis based on a cost of living index.
|
Fluctuates annually based on changes to a specified cost of living index and U.S. dollar foreign exchange index.
|
Drydocking costs are included as part of the capital cost component.
|
The hire rate will be reduced by approximately 5%.
|
Golar Winter
|
Increases on a bi-annual basis based on a cost of living index.
|
Fluctuates annually based on changes to a specified cost of living index and U.S. dollar foreign exchange index.
|
Drydocking costs are included as part of the capital cost component.
|
n/a
|
Golar Freeze
|
Fixed.
|
Annual adjustment based on actual costs.
|
|
The hire rate will be reduced by 64% from the initial hire rate.
|
NR Satu
|
This also includes a mooring capital element.
|
Annual adjustment based on actual costs.
|
There is also a tax component.
(1)
|
The capital element will decrease 12% in 2023, then by a further 7% in 2024 and 2025.
|
Golar Igloo
(2)
|
The hire rate is an all-inclusive daily fixed rate.
|
n/a
|
||
Golar Eskimo
|
Fixed for first five years of hire. Decreases by 6.4% after the first five years of hire.
|
Increases by a fixed percentage per annum.
|
n/a
|
n/a
|
Golar Mazo
|
Fixed.
|
Annual adjustment based on actual costs.
|
Reimbursement of costs relating to:
i) Drydocking
ii) Additional cost component.
(3)
|
n/a
|
Methane Princess
|
Fixed.
|
Increases by a fixed percentage per annum.
|
|
Reduces by approximately 37%.
|
Golar Grand
|
The hire rate is an all-inclusive daily fixed rate.
|
n/a
|
||
Golar Maria
|
The hire rate is an all-inclusive daily fixed rate.
|
n/a
|
(1)
|
The tax element shall be adjusted only when there is any change in Indonesian Tax Laws (including any changes in interpretation or implementation thereof) or any treaty to which Indonesia is party or the invalidity of any tax assumptions used in determining the tax element.
|
(2)
|
The
Golar Igloo
provides floating storage and regasification services to KNPC for a nine-month period each year (or the Regasification Season) until the termination of the charter. The Regasification Season commences, at KNPC’s election, between March 1 and March 31 of each year (or the Start Date) and ends nine months later (or the End Date). During the period between the End Date with respect to one Regasification Season and the Start Date of the next succeeding Regasification Season (or the Regasification Off-Season), we may charter the
Golar Igloo
to other customers under short-term charters.
|
(3)
|
The additional cost component comprises of reimbursement for certain costs associated with certain modifications, improvements, alterations or replacements that are required pursuant to the charter, requested by Pertamina, or that are estimated to cost more than $2 million and related to any financing we obtain at the request of Pertamina.
|
•
|
operational deficiencies, drydocking for repairs, maintenance or inspection, equipment breakdowns, or delays due to accidents, crewing strikes, certain vessel detentions or similar problems; or
|
•
|
our failure to maintain the vessel in compliance with its specifications and contractual standards or to provide the required crew.
|
•
|
the occurrence of specified events of default;
|
•
|
requisition by any governmental authority;
|
•
|
force majeure after a continuous and specified period or in the event that war or hostilities materially and adversely affect the operations of the applicable vessel; and
|
•
|
specified extended periods of off-hire.
|
•
|
technical management, maintenance, dockings;
|
•
|
crew management;
|
•
|
procurement, purchasing, forwarding logistics;
|
•
|
marine operations;
|
•
|
vetting, oil major and terminal approvals;
|
•
|
shipyard supervision;
|
•
|
insurance; and
|
•
|
financial services.
|
•
|
natural resource damages and related assessment costs;
|
•
|
real and personal property damages;
|
•
|
net loss of taxes, royalties, rents, profits or earnings capacity;
|
•
|
net cost of public services necessitated by a spill response, such as protection from fire, safety or health hazards; and
|
•
|
loss of subsistence use of natural resources.
|
•
|
on-board installation of automatic identification systems to provide a means for the automatic transmission of safety-related information from among similarly equipped vessels and shore stations, including information on a vessel’s identity, position, course, speed and navigational status;
|
•
|
on-board installation of vessel security alert systems, which do not sound on the vessel but only alerts the authorities on shore;
|
•
|
the development of vessel security plans;
|
•
|
ship identification number to be permanently marked on a vessel’s hull;
|
•
|
a continuous synopsis record kept on board showing a vessel’s history, including the name of the vessel and of the state whose flag the vessel is entitled to fly, the date on which the vessel was registered with that state, the vessel’s identification number, the port at which the vessel is registered and the name of the registered owner(s) and their registered address; and
|
•
|
compliance with flag state security certification requirements.
|
•
|
be 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);
|
•
|
satisfy the Publicly Traded Test (as described below) or the Qualified Shareholder Stock Ownership Test (as described below); and
|
•
|
meet certain substantiation, reporting and other requirements.
|
•
|
individual residents of jurisdictions that grant an Equivalent Exemption;
|
•
|
non-U.S. corporations organized in jurisdictions that grant an Equivalent Exemption and that meet the Publicly Traded Test; or
|
•
|
certain other qualified persons described in the Section 883 Regulations (which we refer to collectively as Qualified Shareholders).
|
•
|
We intend to increase the size of our fleet by making other acquisitions
. Our growth strategy focuses on expanding our fleet through the acquisition of FSRUs and LNG carriers and in the future possibly FLNG vessels under long-term time charters from Golar or third parties. We may need to issue additional equity or incur additional indebtedness to fund additional vessels that we purchase.
|
•
|
Vessel operating and other costs may face industry-wide cost pressures
. Factors such as pressure on raw material prices, increased cost of qualified and experienced seafaring crew and changes in regulatory requirements could also increase operating expenditures. Although we continue to take measures to improve operational efficiencies and mitigate the impact of inflation and price escalations, future increases to operational costs are likely to occur.
|
•
|
We may enter into different financing arrangements
. Our financing arrangements currently in place 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 new financing arrangements. For descriptions of our current financing arrangements, please read “—B. Liquidity and Capital Resources—Borrowing Activities.”
|
•
|
Our results are affected by fluctuations in the fair value of our derivative instruments.
The change in fair value of some of our derivative instruments is included in our net income as some of our derivative instruments are not designated as hedges for accounting purposes. These changes may fluctuate significantly as interest rates fluctuate. Please read note 25 in the notes to our consolidated financial statements.
|
•
|
Our results may be affected by tax exposure and changes in deferred tax.
In 2015 and 2014, we recognized deferred tax assets relating to the recognition of certain historical tax positions relating to foreign tax operating losses in Indonesia. Furthermore, in 2015, we recognized a deferred tax liability relating to excess of the tax basis depreciation over the accounting basis depreciation in connection with the
Golar Eskimo.
Please see note 9 in the notes to our consolidated financial statements. This may not have an impact in our future results as we may not recognize deferred tax in the future. Tax accounting and reporting judgments that we make may not be entirely free from doubt. It is possible that applicable tax authorities will disagree with our positions, possibly resulting in additional taxes being owed. For instance, the Indonesian tax authorities have notified one of our subsidiaries, PTGI, that it is canceling a previously granted waiver of VAT importation in the approximate amount of $24.0 million for the
NR Satu.
In the event of an unfavorable outcome of our challenge of this ruling in Indonesian tax court, it is possible that PTGI will be liable for the VAT plus penalties and interest. See “Item 3. Risk Factors—We will be subject to taxes, which will reduce our cash available for distribution”.
|
•
|
The amount and timing of drydocking and the number of drydocking days of our vessels can significantly affect our revenues between periods.
Our vessels are off-hire at various points of time due to scheduled and unscheduled maintenance. During the years ended
December 31, 2015
,
2014
and
2013
, we had 84, nil, and 28 off-hire days, respectively, relating to drydocking of our vessels. Material differences in the number of off-hire days from period to period could cause financial results to differ materially. The material impact of off-hire time on our business and results of operations is discussed below.
|
•
|
The Golar Igloo generated revenues during the first month of her three month Regasification Off-Season.
Under the
Golar Igloo’s
charter with KNPC,
Golar Igloo
is to provide FSRU services for nine months of each year (the regasification season). During the charter term, there will be a three-month window each year from December until March, during which the
Golar Igloo
will not provide FSRU services to KNPC, permitting us to pursue spot carrier and other short-term business opportunities. KNPC extended the
Golar Igloo’s
charter after the end of the regasification season until December 31 in both 2015 and 2014. We cannot guarantee that the
Golar Igloo
will be employed each year during her Regasification Off-Season.
|
•
|
Reductions of hire rates for extension periods may significantly affect our revenues
.
The
Golar Grand
is currently operating under a replacement time charter with Golar at a hire rate that is 75% of the rate paid by the previous charterer. Certain of our other time charters provide for significant reductions in hire rates payable during extension periods if the charterer extends the applicable charter beyond its initial term. These reductions range from 5% for the
Golar Spirit
to 64% for the
Golar Freeze
. Our results of operations will be negatively impacted in periods during which any of our vessels are operating under a reduced hire rate.
|
•
|
Vessels maybe re-contracted at lower rates.
We currently derive all of our revenue from a limited number of customers on medium to long-term charters. The charters on three of our LNG carriers are due to expire in 2017. Hire rates for FSRUs and LNG carriers fluctuate over time as a result of changes in the supply-demand balance relating to current and future FSRU and LNG carrier capacity. Hire rates at a time when we may be seeking a new charter may be lower than the hire rates at which our vessels are currently chartered. If rates are lower when we are seeking a new charter, or if we elect not to re-charter a vessel, our earnings and ability to make distributions to our unitholders may decline. See “Risk Factors-Hire rates for FSRUs and LNG carriers may fluctuate substantially. If rates are lower when we are seeking a new charter, our earnings and ability to make distributions to our unitholders may decline”.
|
•
|
the number of vessels in our fleet, and our ability to acquire additional vessels from Golar or from third parties;
|
•
|
our ability to maintain good relationships with our nine existing customers and our future customers and to increase the number of our customer relationships;
|
•
|
demand for LNG shipping services, including floating storage and regasification services;
|
•
|
our ability to successfully employ our vessels at economically attractive rates, as our charters expire or are otherwise terminated;
|
•
|
the effective and efficient technical management of our vessels;
|
•
|
Golar’s ability to obtain and maintain major international energy company approvals and to satisfy their technical, health, safety and compliance standards; and
|
•
|
economic, regulatory, political and governmental conditions that affect the shipping and the LNG industry. This includes changes in the number of new LNG importing countries and regions and availability of surplus LNG from projects around the world, as well as structural LNG market changes allowing greater flexibility and enhanced competition with other energy sources.
|
•
|
the hire rate earned by our vessels, unscheduled off-hire days and the level of our vessel operating expenses;
|
•
|
mark-to-market charges in interest rate swaps and foreign currency derivatives;
|
•
|
foreign currency exchange gains and losses;
|
•
|
our access to capital required to acquire additional vessels and/or to implement our business strategy;
|
•
|
increased crewing costs;
|
•
|
our level of debt and the related interest expense and amortization of principal; and
|
•
|
the level of any distribution on our common units.
|
(in thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
||||||||||||||||
Petrobras
|
|
$
|
100,052
|
|
|
23
|
%
|
|
$
|
99,976
|
|
|
25
|
%
|
|
$
|
85,899
|
|
|
26
|
%
|
|
PTNR
|
|
67,325
|
|
|
15
|
%
|
|
66,345
|
|
|
17
|
%
|
|
65,478
|
|
|
20
|
%
|
||||
KNPC
|
|
47,402
|
|
|
11
|
%
|
|
43,220
|
|
|
11
|
%
|
|
—
|
|
|
—
|
%
|
||||
DUSUP
|
|
41,970
|
|
|
10
|
%
|
|
48,392
|
|
|
12
|
%
|
|
48,029
|
|
|
15
|
%
|
||||
Pertamina
|
|
38,061
|
|
|
9
|
%
|
|
40,004
|
|
|
10
|
%
|
|
37,302
|
|
|
11
|
%
|
||||
BG Group plc
|
|
31,370
|
|
|
7
|
%
|
|
68,884
|
|
|
17
|
%
|
|
66,341
|
|
|
20
|
%
|
||||
|
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
•
|
The
Golar Mazo
’s charter provides for operating cost and insurance cost pass-throughs, and so we will be protected from the impact of the vast majority of such increases.
|
•
|
The
Methane Princess
’ and the
Golar Eskimo
’s charters provide that the operating cost component of the charter hire rate, established at the beginning of the charter, will increase by a fixed percentage per annum (except for insurance in the case of the
Methane Princess
, which is covered at cost).
|
•
|
Under the OSAs for both the
Golar Spirit
and the
Golar Winter
, the charter hire rates are payable in Brazilian Reals. The charter hire rates payable under the OSAs covers all vessel operating expenses, other than drydocking and insurance. The charter hire rates payable under the OSAs were established between the parties at the time the charter was entered into and will be increased based on a specified mix of consumer price and U.S. Dollar foreign exchange rate indices on an annual basis.
|
•
|
The
Golar Freeze
and the
NR Satu
time charters provides for annual adjustments to the operating expense component of the charter hire rate as necessary to take into account cost increases.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2015
|
|
2014
|
|
Change
|
|
% Change
|
|||||||
|
(dollars in thousands, except TCE and average daily vessel operating costs)
|
|||||||||||||
Total operating revenues
|
$
|
434,687
|
|
|
$
|
396,026
|
|
|
$
|
38,661
|
|
|
10
|
%
|
Vessel operating expenses
|
65,244
|
|
|
59,191
|
|
|
6,053
|
|
|
10
|
%
|
|||
Voyage and commission expenses
|
7,724
|
|
|
6,048
|
|
|
1,676
|
|
|
28
|
%
|
|||
Administrative expenses
|
6,643
|
|
|
5,757
|
|
|
886
|
|
|
15
|
%
|
|||
Depreciation and amortization
|
99,256
|
|
|
80,574
|
|
|
18,682
|
|
|
23
|
%
|
|||
Interest income
|
1,315
|
|
|
1,131
|
|
|
184
|
|
|
16
|
%
|
|||
Interest expense
|
(55,324
|
)
|
|
(43,781
|
)
|
|
(11,543
|
)
|
|
26
|
%
|
|||
Other financial items
|
(23,459
|
)
|
|
(22,118
|
)
|
|
(1,341
|
)
|
|
6
|
%
|
|||
Taxes
|
(5,669
|
)
|
|
5,047
|
|
|
(10,716
|
)
|
|
(212
|
)%
|
|||
Net income
|
172,683
|
|
|
184,735
|
|
|
(12,052
|
)
|
|
(7
|
)%
|
|||
Non-controlling interest
|
(10,547
|
)
|
|
(10,581
|
)
|
|
34
|
|
|
—
|
%
|
|||
TCE (to the closest $100)
|
$
|
120,373
|
|
|
121,900
|
|
|
(1,527
|
)
|
|
(1
|
)%
|
||
Average daily vessel operating costs
|
17,969
|
|
|
18,502
|
|
|
(533
|
)
|
|
(3
|
)%
|
•
|
$50.6 million revenue contribution from the
Golar Eskimo
following her acquisition in January 2015; and
|
•
|
$4.2 million of additional revenue in 2015 from the
Golar Igloo
due to recognition of ten months of revenue as compared to approximately nine months in 2014, following her acquisition in March 2014.
|
•
|
a $6.4 million reduction in revenue from the
Golar Freeze
due to her scheduled drydocking in 2015;
|
•
|
a $9.1 million reduction in revenue from the
Golar Grand,
following her redelivery from BG Group in mid-February 2015 and her subsequent charter back to Golar at a lower daily time charter rate; and
|
•
|
a $1.9 million reduction in revenue from the
Golar Mazo
, due to the effect of the accelerated release of drydocking revenue in 2014, as she drydocked earlier than expected.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2015
|
|
2014
|
|
Change
|
|
% Change
|
|||||||
Calendar days less scheduled off-hire days
|
3,547
|
|
|
3,199
|
|
|
348
|
|
|
11
|
%
|
|||
Average daily TCE (to the closest $100)
|
$
|
120,373
|
|
|
$
|
121,900
|
|
|
$
|
(1,527
|
)
|
|
(1
|
)%
|
•
|
$5.9 million incremental operating costs relating to the
Golar Eskimo
following her acquisition in January 2015; and
|
•
|
$1.8 million in additional costs for
Golar Igloo
, due to recognition of a full year’s operating expenses compared to approximately nine months in 2014, following her acquisition in March 2014.
|
•
|
$16.6 million of vessel depreciation and intangibles amortization from the
Golar Eskimo
following her acquisition in January 2015; and
|
•
|
$3.2 million of incremental vessel depreciation and intangibles amortization in 2015 from the
Golar Igloo
, which represents a full year’s depreciation in 2015 compared to only approximately nine months of depreciation, following her acquisition in March 2014.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2015
|
|
2014
|
|
Change
|
|
% Change
|
|||||||
|
(dollars in thousands)
|
|||||||||||||
Mark-to-market gains (losses) for interest rate swaps
|
$
|
655
|
|
|
$
|
(5,953
|
)
|
|
$
|
6,608
|
|
|
(111
|
)%
|
Interest expense on un-designated interest rate swaps
|
(14,385
|
)
|
|
(12,163
|
)
|
|
(2,222
|
)
|
|
18
|
%
|
|||
Unrealized and realized losses on interest rate swaps
|
(13,730
|
)
|
|
(18,116
|
)
|
|
4,386
|
|
|
(24
|
)%
|
|||
Amortization of deferred financing costs
|
(6,308
|
)
|
|
(3,657
|
)
|
|
(2,651
|
)
|
|
72
|
%
|
|||
Financing arrangement fees and other costs
|
(1,694
|
)
|
|
(12
|
)
|
|
(1,682
|
)
|
|
14,017
|
%
|
|||
Other
|
(1,727
|
)
|
|
(333
|
)
|
|
(1,394
|
)
|
|
419
|
%
|
|||
Other financial items, net
|
$
|
(23,459
|
)
|
|
$
|
(22,118
|
)
|
|
$
|
(1,341
|
)
|
|
6
|
%
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2014
|
|
2013
|
|
Change
|
|
% Change
|
|||||||
|
(dollars in thousands, except TCE and average daily vessel operating costs)
|
|||||||||||||
Total operating revenues
|
$
|
396,026
|
|
|
$
|
329,190
|
|
|
$
|
66,836
|
|
|
20
|
%
|
Vessel operating expenses
|
59,191
|
|
|
52,390
|
|
|
6,801
|
|
|
13
|
%
|
|||
Voyage and commission expenses
|
6,048
|
|
|
5,239
|
|
|
809
|
|
|
15
|
%
|
|||
Administrative expenses
|
5,757
|
|
|
5,194
|
|
|
563
|
|
|
11
|
%
|
|||
Depreciation and amortization
|
80,574
|
|
|
66,336
|
|
|
14,238
|
|
|
21
|
%
|
|||
Interest income
|
1,131
|
|
|
1,097
|
|
|
34
|
|
|
3
|
%
|
|||
Interest expense
|
(43,781
|
)
|
|
(43,195
|
)
|
|
(586
|
)
|
|
1
|
%
|
|||
Other financial items
|
(22,118
|
)
|
|
(1,661
|
)
|
|
(20,457
|
)
|
|
1,232
|
%
|
|||
Taxes
|
5,047
|
|
|
(5,453
|
)
|
|
10,500
|
|
|
(193
|
)%
|
|||
Net income
|
184,735
|
|
|
150,819
|
|
|
33,916
|
|
|
22
|
%
|
|||
Non-controlling interest
|
(10,581
|
)
|
|
(9,523
|
)
|
|
(1,058
|
)
|
|
11
|
%
|
|||
TCE (to the closest $100)
|
121,900
|
|
|
117,800
|
|
|
4,100
|
|
|
3
|
%
|
|||
Average daily vessel operating costs
|
18,502
|
|
|
18,172
|
|
|
330
|
|
|
2
|
%
|
•
|
$43.2 million of revenue contribution from the
Golar Igloo
following her acquisition in March 2014;
|
•
|
$16.5 million higher revenues from the
Golar Sprit
, the
Golar Winter
and the
Methane Princess
in 2014 compared to 2013, due to their scheduled drydockings during the first half of 2013. Also, the
Golar Winter
contributed full year of increased hire rates compared to approximately five months in 2013, following the completion of her modification works in July 2013;
|
•
|
$3.1 million of additional revenues from the
Golar Maria
, representing a full year of revenues in 2014 compared to approximately eleven months in 2013, following her acquisition in February 2013; and
|
•
|
$2.7 million of revenue contribution from the
Golar Mazo
due to the accelerated release of drydocking revenue, as she drydocked earlier than expected.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2014
|
|
2013
|
|
Change
|
|
% Change
|
|||||||
Calendar days less scheduled off-hire days
|
3,199
|
|
|
2,751
|
|
|
448
|
|
|
16
|
%
|
|||
Average daily TCE (to the closest $100)
|
$
|
121,900
|
|
|
$
|
117,800
|
|
|
$
|
4,100
|
|
|
3
|
%
|
•
|
incremental operating costs relating to the
Golar Igloo
of $5.9 million since her acquisition in March 2014; and
|
•
|
$0.5 million of expenses relating to a pre-acquisition claim for the
NR Satu
.
|
•
|
$5.6 million of depreciation of the
Golar Igloo
following her acquisition in March 2014;
|
•
|
$3.1 million of amortization of intangible assets representing
Golar Igloo’
s charter;
|
•
|
a full year of amortization of the capitalized drydocking costs of the
Golar Spirit
, the
Golar Winter
, the
Golar Mazo
and the
Methane Princess
in 2014 after completion of their drydockings in 2013 resulting in higher depreciation and amortization by $2.9 million;
|
•
|
$0.8 million of accelerated amortization of the
Golar Mazo’
s capitalized drydock costs in 2013, as she drydocked earlier than expected in September 2014; and
|
•
|
a full year of depreciation for the year ended December 31, 2014 higher by $0.7 million compared to approximately eleven months of depreciation in 2013 for the
Golar Maria
, following her acquisition in February 2013.
|
•
|
additional interest of $3.7 million, associated with the Golar Igloo debt, which we assumed upon her acquisition in March 2014; and
|
•
|
a full year of interest of the Golar Partners Operating facility secured against the
Golar Grand
and the
Golar Winter
, entered into in June 2013, compared to approximately six months in 2013. The new facility is larger and accrues interest at a higher rate than the two leases it replaced.
|
•
|
decrease in interest on designated hedges of $3.7 million following the maturity of certain designated swaps since November 2013; and
|
•
|
lower interest payments on remaining facilities following repayments made on principal balances.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2014
|
|
2013
|
|
Change
|
|
% Change
|
|||||||
|
(dollars in thousands)
|
|||||||||||||
Mark-to-market (losses)/gains for interest rate swaps
|
$
|
(5,953
|
)
|
|
$
|
12,845
|
|
|
$
|
(18,798
|
)
|
|
(146
|
)%
|
Interest expense on un-designated interest rate swaps
|
(12,163
|
)
|
|
(8,188
|
)
|
|
(3,975
|
)
|
|
49
|
%
|
|||
Unrealized and realized (losses)/gains on interest rate swaps
|
(18,116
|
)
|
|
4,657
|
|
|
(22,773
|
)
|
|
(489
|
)%
|
|||
Net foreign currency adjustments for retranslation of lease related balances and mark-to-market adjustments for the Golar Winter Lease related currency swap derivative
|
677
|
|
|
2,245
|
|
|
(1,568
|
)
|
|
(70
|
)%
|
|||
Amortization of deferred financing costs
|
(3,554
|
)
|
|
(5,828
|
)
|
|
2,274
|
|
|
(39
|
)%
|
|||
Other
|
(1,125
|
)
|
|
(2,735
|
)
|
|
1,610
|
|
|
(59
|
)%
|
|||
Other financial items, net
|
$
|
(22,118
|
)
|
|
$
|
(1,661
|
)
|
|
$
|
(20,457
|
)
|
|
1,232
|
%
|
•
|
In April 2016, we entered into a new $800 million credit facility which will refinance the bank debt secured by seven of our existing vessels as well as providing the remaining part of the cash purchase price for the acquisition of the
Golar Tundra
. The vessels included in this facility are the
Methane Princess
, the
Golar Spirit
, the
Golar Winter
, the
Golar Grand
, the
Golar Maria
, the
Golar Igloo
and the
Golar Freeze
. The new credit facility has a 5 year term and consists of a $650 million term loan facility and a $150 million revolving credit facility. It is repayable in quarterly installments with a total final balloon payment of $440.0 million in 2021. The facility is provided by a syndicate of banks, and bears interest at LIBOR plus a margin broadly in line with the average margin of our existing bank credit facilities as well as a commitment fee on undrawn amounts;
|
•
|
In February 2016, we agreed to acquire the ownership interests in the disponent owner and operator of the FSRU the
Golar Tundra
from Golar for an aggregate purchase price of approximately $330.0 million. In February 2016 we paid a $30 million deposit to Golar related to the acquisition. We will finance the remaining balance of the purchase price with cash proceeds from the $800 million credit facility, and the assumption of outstanding lease obligations in respect of the
Golar Tundra.
We expect the acquisition to close in May 2016;
|
•
|
As of
April 29, 2016
, we had made $23.8 million of scheduled debt repayments and paid interest on our bonds of $9.3 million since
December 31, 2015
;
|
•
|
In February 2016, we paid a cash distribution of $0.5775 per unit ($38.2 million in the aggregate) with respect to the quarter ended
December 31, 2015
;
|
•
|
In April 2016, we declared a quarterly cash distribution with respect to the quarter ended March 31, 2016 of $0.5775 per unit which will be paid on May 13, 2016 to all unitholders of record as of May 6, 2016.
|
|
Year Ended December 31,
|
||||||||||
|
2015
|
|
2014
|
|
2013
|
||||||
|
(in thousands)
|
||||||||||
Net cash provided by operating activities
|
$
|
212,230
|
|
|
$
|
276,980
|
|
|
$
|
148,679
|
|
Net cash used in investing activities
|
734
|
|
|
(167,755
|
)
|
|
(84,052
|
)
|
|||
Net cash used in financing activities
|
(271,276
|
)
|
|
(113,327
|
)
|
|
(27,854
|
)
|
|||
Net (decrease) increase in cash and cash equivalents
|
(58,312
|
)
|
|
(4,102
|
)
|
|
36,773
|
|
|||
Cash and cash equivalents at beginning of year
|
98,998
|
|
|
103,100
|
|
|
66,327
|
|
|||
Cash and cash equivalents at end of year
|
40,686
|
|
|
98,998
|
|
|
103,100
|
|
•
|
an increase in drydocking expenditure of $12.6 million, by virtue of the scheduled drydocking of the FSRU, the
Golar Freeze
in 2015, compared to the drydocking of the LNG carrier, the
Golar Mazo
in 2014 as well as the loss of revenue contribution from the
Golar Freeze
, while in drydock in 2015;
|
•
|
a $9.1 million reduction in the revenue attributable to the
Golar Grand,
following her redelivery from BG Group in mid February 2015 and her subsequent charter back to Golar at a lower daily time charter rate;
|
•
|
an increase of $7.6 million of restricted cash for
Golar Eskimo
and
Golar Igloo;
|
•
|
a general increase in working capital, specifically, the increase in trade receivables and amounts due from/to Golar of $11.7 million and $18.7 million, respectively.
|
•
|
the improvement in overall trading through the contributions from the
Golar Igloo
, following her acquisition in March 2014;
|
•
|
a decrease in drydocking expenditure of $48.5 million for the year ended December 31, 2014 compared 2013, due to four scheduled drydockings in the first half of 2013, compared to only one drydocking in 2014;
|
•
|
higher revenues from the
Golar Winter
, the
Golar Spirit
and the
Methane Princess
, following their scheduled drydockings in the first half of 2013, coupled with the increased hire rate for the
Golar Winter,
pursuant to the completion of her modification works in July 2013; and
|
•
|
the
Golar Maria
earning a full year of revenues for the year ended December 31, 2014, compared to approximately eleven months in 2013, following her acquisition in February 2013.
|
•
|
payment of cash distributions during the year of $164.3 million (of which $11.4 million refers to distributions to our non-controlling interests);
|
•
|
repayment of debt (including debt due to related party) and lease obligations of $713.8 million. Of this amount, $220 million relates to repayment of the Eskimo Vendor Loan from Golar and $133.4 million relates to the settlement of the outstanding debt balances on the Golar Maria and the Golar Freeze debt facilities in connection with their refinancing in June 2015;
|
•
|
net cash deposits of
$31.2 million
to restricted cash balances, which is mainly attributable to additional cash collateral requirements associated with our cross currency interest rate swap arrangement resulting from the depreciation of the marked-to-market valuation of the swap.
|
•
|
payment of cash distributions during the year of $153.9 million (of which $13.7 million refers to distributions to our non-controlling interests);
|
•
|
repayment of long term debt and lease obligations of $93.6 million.
|
•
|
net proceeds from the public offerings of common units in February 2013 and December 2013, which together raised $280.6 million;
|
•
|
proceeds of $230 million drawn from the new Golar Partners $275 million credit facility in connection with the refinancing of the
Golar Winter
and the
Golar Grand
in June 2013 to acquire the legal title of these vessels. The proceeds were put towards settling the termination sums payable of $251 million on the Golar Winter and Golar Grand Leases (including the related Golar Winter currency swap);
|
•
|
draw down and the subsequent repayment of the $20 million sponsor credit facility;
|
•
|
repayment of long-term debt and lease obligations of $152.2 million; and
|
•
|
payment of cash distributions during the year of $130.5 million (of which $10.6 million refers to distributions to our non-controlling interests).
|
|
December 31,
|
||||||
|
2015
|
|
2014
|
||||
|
(in thousands)
|
||||||
Maria and Freeze Facility
|
$
|
174,000
|
|
|
$
|
—
|
|
2012 High-Yield Bonds
|
147,007
|
|
|
174,450
|
|
||
2015 Norwegian Bonds
|
150,000
|
|
|
—
|
|
||
Golar LNG Partners Credit Facility
|
181,500
|
|
|
203,500
|
|
||
Golar Partners Operating Credit Facility
|
185,000
|
|
|
235,000
|
|
||
NR Satu Facility
|
112,100
|
|
|
126,400
|
|
||
Golar Igloo Debt
|
141,111
|
|
|
154,550
|
|
||
Eskimo SPV
|
254,070
|
|
|
—
|
|
||
Golar LNG Revolving Credit Facility
|
—
|
|
|
20,000
|
|
||
Golar Maria Facility
|
—
|
|
|
79,525
|
|
||
Golar Freeze Facility
|
—
|
|
|
59,107
|
|
||
Total
|
$
|
1,344,788
|
|
|
$
|
1,052,532
|
|
Year Ending December 31,
|
(in thousands)
|
||
|
|
||
2016
|
$
|
121,739
|
|
2017
|
223,747
|
|
|
2018
|
431,256
|
|
|
2019
|
44,122
|
|
|
2020
|
195,939
|
|
|
2021 and thereafter
|
327,985
|
|
|
Total
|
$
|
1,344,788
|
|
•
|
free liquid assets of at least $30.0 million until the maturity date;
|
•
|
a minimum EBITDA to debt service ratio of 1.15:1;
|
•
|
a maximum net debt to EBITDA ratio of 6.5:1; and
|
•
|
a consolidated net worth of $250.0 million.
|
•
|
free liquid assets of at least $30 million;
|
•
|
a minimum EBITDA to debt service ratio of 1.15:1;
|
•
|
a maximum net debt to EBITDA ratio of 6.5:1; and
|
•
|
a consolidated net worth of $123.95 million.
|
•
|
free liquid assets of at least $30 million from July 1,2014 until the maturity date;
|
•
|
a minimum EBITDA to debt service ratio of 1.15:1;
|
•
|
a maximum net debt to EBITDA ratio of 6.5:1; and
|
•
|
a consolidated net worth of $123.95 million.
|
•
|
free liquid assets of at least $30 million;
|
•
|
a minimum EBITDA to debt service ratio of 1.10:1; and
|
•
|
a maximum net debt to EBITDA ratio of 6.5:1.
|
Tranche
|
Proportion of debt
|
Term of loan
|
Repayment terms
|
Margin on LIBOR
|
K-Sure
|
40%
|
12 years
|
Semi-annual installments
|
2.10%
|
KEXIM
|
40%
|
12 years
|
Semi-annual installments
|
2.75%
|
Commercial
|
20%
|
5 years
|
Semi-annual installments, unpaid balance to be refinanced after 5 years
|
2.75%
|
•
|
free liquid assets of at least $30.0 million until the maturity date;
|
•
|
a minimum EBITDA to debt service ratio of 1.15:1;
|
•
|
a maximum net debt to EBITDA ratio of 6.50:1; and
|
•
|
a consolidated net worth of $123,950,000 million.
|
•
|
free liquid assets of at least $30 million throughout the charter period;
|
•
|
a maximum net debt to EBITDA ratio of 6.5:1; and
|
•
|
a consolidated tangible net worth of $123.95 million.
|
•
|
merge or consolidate with any other person;
|
•
|
de-merge or carry out a corporate reorganization splitting the Partnership into two or more separate entities;
|
•
|
change or cease to carry on the general nature or scope of our business;
|
•
|
sell or dispose of all or a substantial part of our assets or operations;
|
•
|
enter into any transaction with related parties other than on an arms’ length basis; and
|
•
|
change our type of organization or jurisdiction of organization.
|
•
|
free liquid assets of at least $30 million;
|
•
|
a minimum EBITDA to debt service ratio of 1.15:1; and
|
•
|
a maximum net debt to EBITDA ratio of 6.5:1.
|
Year ending December 31,
(in thousands)
|
|
Methane
Princess Lease
|
||
2016
|
|
$
|
7,442
|
|
2017
|
|
7,723
|
|
|
2018
|
|
8,030
|
|
|
2019
|
|
8,338
|
|
|
2020
|
|
8,650
|
|
|
2021 and thereafter
|
|
192,476
|
|
|
Total minimum lease payments
|
|
232,659
|
|
|
Less: Imputed interest
|
|
(89,547
|
)
|
|
Present value of minimum lease payments
|
|
$
|
143,112
|
|
•
|
merge or consolidate with any other person;
|
•
|
make certain capital expenditures;
|
•
|
pay distributions to our unitholders;
|
•
|
terminate or materially amend certain of our charters;
|
•
|
enter into any other line of business;
|
•
|
make any acquisitions;
|
•
|
incur additional indebtedness or grant any liens to secure any of our existing or future indebtedness;
|
•
|
enter into sale transactions in respect of the vessel securing such credit facility;
|
•
|
enter into sale-leaseback transactions in respect of certain of our vessels; and
|
•
|
enter into transactions with our affiliates.
|
•
|
Cash flows are assumed to be in line with pre-existing contracts and are utilized based on historical performance levels;
|
•
|
For our LNG carriers, once the initial contract period expires, we have estimated cash flows at the lower of our estimated current long-term charter rate or option renewal rate with the existing counterparty;
|
•
|
For our FSRUs, once the initial contract period expires, we have estimated cash flows at the existing contract option renewal rate, given the lack of pricing transparency in the market as a whole; and
|
•
|
We have made certain assumptions in relation to the scrap values of our vessels at the end of their useful lives of 40-55 years.
|
•
|
Modify the evaluation of whether limited partnerships and similar legal entities are variable interest entities (VIEs) or voting interest entities;
|
•
|
Eliminate the presumption that a general partner should consolidate a limited partnership;
|
•
|
Affect the consolidation analysis of reporting entities that are involved with VIEs, particularly those that have fee arrangements and related party relationships; and
|
•
|
Provide a scope exception from consolidation guidance for reporting entities with interest in legal entities that are required to comply with or operate in accordance with requirements that are similar to those in Rule 2a-7 of the Investment Company Act of 1940 for registered money market funds.
|
|
Total
Obligation
|
|
Due in
2016
|
|
Due in
2017—2018
|
|
Due in
2019—2020
|
|
Due
Thereafter
|
||||||||||
|
(in millions)
|
||||||||||||||||||
Long-term debt
|
$
|
1,344.8
|
|
|
$
|
121.7
|
|
|
$
|
655.0
|
|
|
$
|
240.1
|
|
|
$
|
328.0
|
|
Interest commitments on long-term debt - floating and other interest rate swaps
(1)
|
166.7
|
|
|
55.4
|
|
|
76.0
|
|
|
31.1
|
|
|
4.2
|
|
|||||
Capital lease obligations
|
143.1
|
|
|
—
|
|
|
0.9
|
|
|
2.3
|
|
|
139.9
|
|
|||||
Interest commitments on capital lease obligations
(1)(2)
|
89.6
|
|
|
7.5
|
|
|
14.9
|
|
|
14.7
|
|
|
52.5
|
|
|||||
Total
|
$
|
1,744.2
|
|
|
$
|
184.6
|
|
|
$
|
746.8
|
|
|
$
|
288.2
|
|
|
$
|
524.6
|
|
(1)
|
Our interest commitment on our long-term debt is calculated based on assumed USD LIBOR rates of between 0.80% and 1.30% respectively, taking into account our various margin rates and interest rate swaps associated with our debt. Our interest commitment on our capital lease obligations is calculated on an assumed average Pound Sterling LIBOR of 4.8%.
|
(2)
|
In the event of any adverse tax rate changes or rulings our lease obligation could increase significantly (please read the discussion above under “—Liquidity and Capital Resources—Borrowing Activities—Capital Lease Obligations”). However, Golar has agreed to indemnify us against any such increase.
|
Name
|
|
Age
|
|
Position
|
Tor Olav Trøim
|
|
53
|
|
Chairman
|
Doug Arnell
|
|
50
|
|
Director
|
Paul Leand Jr.
|
|
49
|
|
Director and Conflicts Committee Member
|
Lori Wheeler Naess
|
|
45
|
|
Director and Audit Committee Chairperson
|
Carl Steen
|
|
65
|
|
Director
|
Alf Thorkildsen
|
|
59
|
|
Director and Conflicts Committee Member
|
Andrew Whalley
|
|
49
|
|
Director and Company Secretary
|
Name
|
|
Age
|
|
Position
|
Graham Robjohns
|
|
51
|
|
Principal Executive Officer
|
Oistein Dahl
|
|
55
|
|
Chief Operating Officer
|
Brian Tienzo
|
|
42
|
|
Principal Financial and Accounting Officer
|
|
|
Common Units
Beneficially Owned
|
|
Subordinated Units
Beneficially Owned
|
|
Percentage of Total
Common and
Subordinated Units
|
|||||||||
Name of Beneficial Owner
|
|
Number
|
|
Percent
|
|
Number
|
|
Percent
|
|
Beneficially Owned
|
|||||
Golar LNG Limited
|
|
1,908,096
|
|
|
4.2
|
%
|
|
15,949,831
|
|
|
100
|
%
|
|
29.2
|
%
|
Kayne Anderson Capital Advisors, L.P.
(1)
|
|
4,380,373
|
|
|
7.0
|
%
|
|
—
|
|
|
—
|
|
|
7.2
|
%
|
Oppenheimer Funds, Inc.
(2)
|
|
3,990,289
|
|
|
8.8
|
%
|
|
—
|
|
|
—
|
|
|
6.5
|
%
|
Huber Capital Management, LLC
(3)
|
|
2,915,303
|
|
|
6.4
|
%
|
|
—
|
|
|
—
|
|
|
4.8
|
%
|
Oceanic Hedge Fund, Oceanic Opportunities Master Fund, L.P., Oceanic CL Fund LP, Oceanic Investment Management Limited, Tuftonic Oceanic (Isle of Man) Limited, Oceanic Opportunities GP Limited, Oceanic CL GP Limited, and Cato Brahde
(4)
|
|
2,346,213
|
|
|
5.2
|
%
|
|
—
|
|
|
—
|
|
|
3.8
|
%
|
All directors and executive officers as a group (10 persons)
|
|
*
|
|
|
*
|
|
|
—
|
|
|
—
|
|
|
*
|
|
(1)
|
Based solely on information contained in a Schedule 13G/A filed on January 27, 2016 by Kayne Anderson Capital Advisors, LP.
|
(2)
|
Based solely on information contained in a Schedule 13G/A filed on February 4, 2016 by Oppenheimer Funds, Inc.
|
(3)
|
Based solely on information contained in a Schedule 13G filed on February 16, 2016 by Huber Capital Management, LLC.
|
(4)
|
Based solely on information contained in a Schedule 13G/A filed on December 31, 2015.
|
(1)
|
acquiring, owning, operating or chartering Non-Five-Year Vessels;
|
(2)
|
acquiring one or more Five-Year Vessels if Golar promptly offers to sell the vessel to us for the acquisition price plus any administrative costs (including re-flagging and reasonable legal costs) associated with the transfer to us at the time of the acquisition;
|
(3)
|
putting a Non-Five-Year Vessel under charter for five or more years if Golar offers to sell the vessel to us for fair market value (x) promptly after the time it becomes a Five-Year Vessel and (y) at each renewal or extension of that charter for five or more years;
|
(4)
|
acquiring one or more Five-Year Vessels as part of the acquisition of a controlling interest in a business or package of assets and owning, operating or chartering those vessels; provided, however, that:
|
(a)
|
if less than a majority of the value of the business or assets acquired is attributable to Five-Year Vessels, as determined in good faith by Golar’s board of directors, Golar must offer to sell such vessels to us for their fair market value plus any additional tax or other similar costs that Golar incurs in connection with the acquisition and the transfer of such vessels to us separate from the acquired business; and
|
(b)
|
if a majority or more of the value of the business or assets acquired is attributable to Five-Year Vessels, as determined in good faith by Golar’s board of directors, Golar must notify us of the proposed acquisition in advance. Not later than 10 days following receipt of such notice, we will notify Golar if we wish to acquire such vessels in cooperation and simultaneously with Golar acquiring the Non-Five-Year Vessels. If we do not notify Golar of our intent to pursue the acquisition within 10 days, Golar may proceed with the acquisition and then offer to sell such vessels to us as provided in (a) above;
|
(5)
|
acquiring a non-controlling interest in any company, business or pool of assets;
|
(6)
|
acquiring, owning, operating or chartering any Five-Year Vessel if we do not fulfill our obligation to purchase such vessel in accordance with the terms of any existing or future agreement;
|
(7)
|
acquiring, owning, operating or chartering a Five-Year Vessel subject to the offers to us described in paragraphs (2), (3) and (4) above pending our determination whether to accept such offers and pending the closing of any offers we accept;
|
(8)
|
providing ship management services relating to any vessel; or
|
(9)
|
acquiring, owning, operating or chartering a Five-Year Vessel if we have previously advised Golar that we consent to such acquisition, operation or charter.
|
(1)
|
prevent us from owning, operating or chartering any Non-Five-Year Vessel that was previously a Five-Year Vessel while owned by us;
|
(2)
|
prevent us or any of our subsidiaries from acquiring Non-Five-Year Vessels as part of the acquisition of a controlling interest in a business or package of assets and owning, operating or chartering those vessels; provided, however, that:
|
(a)
|
if less than a majority of the value of the business or assets acquired is attributable to Non-Five-Year Vessels, as determined in good faith by us, we must offer to sell such vessels to Golar for their fair market value plus any additional tax or other similar costs that we incur in connection with the acquisition and the transfer of such vessels to Golar separate from the acquired business; and
|
(b)
|
if a majority or more of the value of the business or assets acquired is attributable to Non-Five-Year Vessels, as determined in good faith by us, we must notify Golar of the proposed acquisition in advance. Not later than 10 days following receipt of such notice, Golar must notify us if it wishes to acquire the Non-Five-Year Vessels in cooperation and simultaneously with us acquiring the Five-Year Vessels. If Golar does not notify us of its intent to pursue the acquisition within 10 days, we may proceed with the acquisition and then offer to sell such vessels to Golar as provided in (a) above;
|
(3)
|
prevent us or any of our subsidiaries from acquiring, owning, operating or chartering any Non-Five-Year Vessels subject to the offer to Golar described in paragraph (2) above, pending its determination whether to accept such offer and pending the closing of any offer it accepts; or
|
(4)
|
prevent us or any of our subsidiaries from acquiring, owning, operating or chartering Non-Five-Year Vessels if Golar has previously advised us that it consents to such acquisition, ownership, operation or charter.
|
•
|
certain defects in title to the assets contributed or sold to us and any failure to obtain, prior to the time they were contributed to us, certain consents and permits necessary to conduct our business, which liabilities arise within three years after the closing of our initial public offering;
|
•
|
certain income tax liabilities attributable to the operation of the assets contributed or sold to us prior to the time they were contributed or sold; and
|
•
|
any liabilities in excess of our scheduled payments under the UK tax lease used to finance the
Methane Princess
, including liabilities in connection with termination of such lease.
|
•
|
Commercial and technical management of the vessel.
Managing day-to-day vessel operations, including but not limited to, seeking, negotiating and administering charter parties with respect to the vessels and receipts of payments thereunder, ensuring regulatory compliance, arranging for the vetting of vessels, appointing counsel and negotiating the settlement of all claims in connection with the operation of each vessel, appointing surveyors and technical consultants as necessary, arranging and supervising of drydockings, repairs, alterations and maintenance of such vessel and purchasing of stores, spares and lubricating oils, arranging insurance for vessels and providing technical support;
|
•
|
Vessel Maintenance and crewing:
including supervising the maintenance and general efficiency of vessels, and ensuring the vessels are in seaworthy condition, provision of competent, suitably qualified crew for each vessel and arranging transportation for crew.
|
Vessels
|
Vessels Management Agreements
|
|
|
Term
|
Notice for termination
|
Golar Mazo*
Methane Princess
Golar Spirit
Golar Winter
Golar Freeze
NR Satu
Golar Grand
Golar Maria Golar Igloo Golar Eskimo
|
Equal to the Pertamina charter term
Indefinite
Indefinite
Indefinite
Indefinite
Indefinite
Indefinite
Indefinite Indefinite Indefinite
|
12 months**
30 days
30 days
30 days
30 days
30 days
30 days
30 days 30 days 30 days
|
•
|
Crew Management.
GMN must provide suitably qualified crew for each vessel and provide for the management of the crew including, but not limited to, arranging for all transportation of the crew, ensuring the crew meets all medical requirements of the flag state, and conducting union negotiations.
|
•
|
Technical Management.
GMN must provide for the technical management of each vessel, which includes, but is not limited to the provision of competent personnel to supervise the maintenance and efficiency of the vessel; arrange and supervise drydockings, repairs, alterations and maintenance of such vessel and arrange and supply the necessary stores, spares and lubricating oils.
|
•
|
Our unitholders have no contractual or other legal right to receive distributions other than the obligation under our partnership agreement to distribute available cash on a quarterly basis, which is subject to the broad discretion of our board of directors to establish reserves and other limitations.
|
•
|
We will be subject to restrictions on distributions under our financing arrangements, including the Golar LNG Partners credit facility and lease arrangements. Our financing arrangements contain material financial tests and covenants that must be satisfied in order to pay distributions. If we are unable to satisfy the restrictions included in any of our financing arrangements or are otherwise in default under any of those agreements, it could have a material adverse effect on our ability to make cash distributions to our unitholders, notwithstanding our stated cash distribution policy.
|
•
|
We are required to make substantial capital expenditures to maintain and replace our fleet. These expenditures may fluctuate significantly over time, particularly as our vessels near the end of their useful lives. In order to minimize these fluctuations, our partnership agreement requires us to deduct estimated, as opposed to actual, maintenance and replacement capital expenditures from the amount of cash that we would otherwise have available for distribution to our unitholders. In years when estimated maintenance and replacement capital expenditures are higher than actual maintenance and replacement capital expenditures, the amount of cash available for distribution to unitholders will be lower than if actual maintenance and replacement capital expenditures were deducted.
|
•
|
Although our partnership agreement requires us to distribute all of our available cash, our partnership agreement, including provisions contained therein requiring us to make cash distributions, may be amended. During the subordination period, with certain exceptions, our partnership agreement may not be amended without the approval of non-affiliated common unitholders. After the subordination period has ended, our partnership agreement can be amended with the approval of a majority of the outstanding common units. Golar currently owns approximately 4.2% of our common units and all of our subordinated units.
|
•
|
Even if our cash distribution policy is not modified or revoked, the amount of distributions we pay under our cash distribution policy and the decision to make any distribution is determined by our board of directors, taking into consideration the terms of our partnership agreement.
|
•
|
Under Section 51 of the Marshall Islands Act, we may not make a distribution to unitholders if the distribution would cause our liabilities to exceed the fair value of our assets.
|
•
|
PTGI is subject to restrictions on distributions under Indonesian laws due to its formation under the laws of Indonesia. Under Article 71.3 of the Indonesian Company Law (Law No. 40 of 2007), dividend distributions may be made only if PTGI has positive retained earnings. As of December 31, 2015 and 2014, PTGI had negative retained earnings and therefore could not make dividend payments under Indonesia law.
|
•
|
We may lack sufficient cash to pay distributions to our unitholders due to decreases in total operating revenues, decreases in hire rates, the loss of a vessel (including, without limitation, through a customer’s exercise of its purchase option) or increases in operating or general and administrative expenses, principal and interest payments on outstanding debt, taxes, working capital requirements, maintenance and replacement capital expenditures or anticipated cash needs. Please read “Item 3—Key Information—D. Risk Factors” for a discussion of these factors.
|
|
Total Quarterly
|
|
Marginal Percentage Interest in
Distributions
|
|
|
|||||
|
Distribution Target Amount
|
|
Unitholders
|
|
General Partner
|
|
Holders of IDRs
|
|||
Minimum Quarterly Distribution
|
$0.3850
|
|
98.0
|
%
|
|
2.0
|
%
|
|
0
|
%
|
First Target Distribution
|
up to $0.4428
|
|
98.0
|
%
|
|
2.0
|
%
|
|
0
|
%
|
Second Target Distribution
|
above $0.4428 up to $0.4813
|
|
85.0
|
%
|
|
2.0
|
%
|
|
13.0
|
%
|
Third Target Distribution
|
above $0.4813 up to $0.5775
|
|
75.0
|
%
|
|
2.0
|
%
|
|
23.0
|
%
|
Thereafter
|
above $0.5775
|
|
50.0
|
%
|
|
2.0
|
%
|
|
48.0
|
%
|
|
High
|
|
Low
|
||||
Year ended December 31, 2015
|
$
|
32.28
|
|
|
$
|
7.55
|
|
Year ended December 31, 2014
|
$
|
39.35
|
|
|
$
|
26.54
|
|
Year ended December 31, 2013
|
$
|
36.00
|
|
|
$
|
27.55
|
|
Year ended December 31, 2012
|
$
|
39.05
|
|
|
$
|
25.52
|
|
Year ended December 31, 2011 (1)
|
$
|
30.91
|
|
|
$
|
22.41
|
|
|
|
|
|
||||
Second quarter 2016 (2)
|
$
|
18.35
|
|
|
$
|
14.00
|
|
First quarter 2016
|
$
|
16.63
|
|
|
$
|
8.02
|
|
Fourth quarter 2015
|
$
|
18.66
|
|
|
$
|
7.55
|
|
Third quarter 2015
|
$
|
25.10
|
|
|
$
|
14.14
|
|
Second quarter 2015
|
$
|
30.25
|
|
|
$
|
24.31
|
|
First quarter 2015
|
$
|
32.28
|
|
|
$
|
24.12
|
|
Fourth quarter 2014
|
$
|
38.39
|
|
|
$
|
26.54
|
|
Third quarter 2014
|
$
|
39.35
|
|
|
$
|
32.79
|
|
Second quarter 2014
|
$
|
38.50
|
|
|
$
|
29.44
|
|
First quarter 2014
|
$
|
31.70
|
|
|
$
|
28.66
|
|
|
|
|
|
||||
Month ended April 30, 2016 (2)
|
$
|
18.35
|
|
|
$
|
14.00
|
|
Month ended March 31, 2016
|
$
|
16.63
|
|
|
$
|
13.76
|
|
Month ended February 28, 2016
|
$
|
14.98
|
|
|
$
|
11.24
|
|
Month ended January 31, 2016
|
$
|
14.21
|
|
|
$
|
8.02
|
|
Month ended December 31, 2015
|
$
|
14.92
|
|
|
$
|
7.55
|
|
Month ended November 30, 2015
|
$
|
18.66
|
|
|
$
|
14.16
|
|
Month ended October 31, 2015
|
$
|
18.65
|
|
|
$
|
14.09
|
|
1.
|
Credit facility agreement dated September 29, 2008 providing for a Senior Secured Revolving Credit Facility by and among Golar LNG Partners L.P. (as borrower) and the Banks and Financial Institutions Referred to therein (as lenders). In September 2008, we entered into a revolving credit facility with a banking consortium to refinance existing loan facilities in respect of two of our vessels, the
Methane Princess
and the
Golar Spirit
(or the Golar LNG Partners credit facility). The loan is secured against the
Golar Spirit
and assignment to the lending bank of a mortgage given to us by the lessors of the
Methane Princess
and the
Golar Spirit
, with a second priority charge over the
Golar Mazo
. The Golar LNG Partners credit facility accrues floating interest at a rate per annum equal to LIBOR plus a margin. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources” for a summary of certain terms.
|
2.
|
Omnibus Agreement dated April 13, 2011, by and among Golar LNG Ltd., Golar LNG Partners LP, Golar GP LLC and Golar Energy Limited. See “Item 7—Major Unitholders and Related Party Transactions—B. Related Party Transactions” for a summary of certain contract terms.
|
3.
|
Amendment No. 1 to Omnibus Agreement, dated October 5, 2011 by and among Golar LNG Ltd., Golar LNG Partners LP, Golar GP LLC and Golar Energy Limited. See “Item 7—Major Unitholders and Related Party Transactions—B. Related Party Transactions” for a summary of certain contract terms.
|
4.
|
First Amended and Restated Management and Administrative Services Agreement between Golar LNG Partners LP and Golar Management Limited. In connection with our initial public offering, we entered into a management and administrative services agreement (as amended and restated, the management and administrative services agreement) with Golar Management, pursuant to which Golar Management agreed to provide certain management and administrative support services to us. As of July 1, 2011, we and Golar Management entered into an amended and restated management and administrative services agreement to reflect changes in the titles of certain of our officers. The material provisions of the amended and restated management and administrative services agreement, including terms related to our obligations and the obligations of Golar Management to provide us with services, remain unchanged from those contained in the management and administrative services agreement entered into at the time of our initial public offering. See “Item 7—Major Unitholders and Related Party Transactions—B. Related Party Transactions” for a summary of certain contract terms.
|
5.
|
Contribution and Conveyance Agreement, dated as of April 5, 2011, among Golar LNG Limited, Golar GP LLC, Golar LNG Partners LP, Golar LNG Holding Co., and Golar Partners Operating LLC, pursuant to which, among other things, Golar contributed interests in certain vessels in our initial fleet to us in connection with our initial public offering.
|
6.
|
Time Charter Party dated July 2, 1997 between Faraway Maritime Shipping Company and Pertamina. See “Item 4—Information on the Partnership—B. Business Overview—Charters” for a summary of certain contract terms.
|
7.
|
Time Charter Party dated August 27, 2003 between Golar 2215 UK Ltd. and Methane Services Limited. See “Item 4—Information on the Partnership—B. Business Overview—Charters” for a summary of certain contract terms.
|
8.
|
Time Charter Party dated September 4, 2007 between
Golar Spirit
UK Ltd. and Petróleo Brasileiro S.A. “Item 4—Information on the Partnership—B. Business Overview—Charters” for a summary of certain contract terms.
|
9.
|
Operation and Services Agreement dated September 4, 2007 between Golar Serviços de Operação de Embarcações Limitada and Petróleo Brasileiro S.A. “Item 4—Information on the Partnership—B. Business Overview—Charters” for a summary of certain contract terms.
|
10.
|
Time Charter Party dated September 4, 2007 between
Golar Winter
UK Ltd. and Petróleo Brasileiro S.A. See “Item 4—Information on the Partnership—B. Business Overview—Charters” for a summary of certain contract terms.
|
11.
|
Operation and Services Agreement dated September 4, 2007 between Golar Serviços de Operação de Embarcações Limitada and Petróleo Brasileiro S.A. See “Item 4—Information on the Partnership—B. Business Overview—Charters” for a summary of certain contract terms.
|
12.
|
$20.0 Million Revolving Credit Agreement, dated April 11, 2011, by and between Golar LNG Partners LP and Golar LNG Limited, as amended by supplemental deed dated April 29, 2015. In connection with our initial public offering, we entered into a $20.0 million revolving credit facility (or the sponsor credit facility) with Golar, to be used to fund our working capital requirements. The sponsor credit facility matured in June 2015.
|
13.
|
Purchase, Sale and Contribution Agreement, dated October 5, 2011, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd., pursuant to which we acquired a 100% interest in subsidiaries that own and operate the FSRU, the
Golar Freeze
from Golar for a purchase price of $330.0 million for the vessel plus $9.0 million of working capital adjustments less assumed bank debt of $108.0 million.
|
14.
|
Purchase, Sale and Contribution Agreement, dated July 9, 2012, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd., pursuant to which we acquired from Golar interests in the companies that own and operate the NR Satu for a purchase price of approximately $385.0 million for the vessel plus working capital adjustments of $3.0 million.
|
15.
|
Purchase, Sale and Contribution Agreement, dated November 1, 2012, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd, providing for, among other things, the acquisition of the
Golar Grand
for a purchase price of $265.0 million for the vessel plus working capital adjustments of $2.6 million less the assumed capital lease obligations of $90.8 million.
|
16.
|
$175 million Facility Agreement, dated December 14, 2012, by and among a group of banks as the lender and PT Golar Indonesia as the borrower. PT Golar Indonesia, the company that owns and operates the FSRU,
NR Satu
, entered into a 7 year secured loan facility. The total facility amount is $175 million and is split into two tranches, a $155 million term loan facility and a $20 million revolving facility. The facility is with a syndicate of banks and bears interest at LIBOR plus a margin of 3.5%. The loan is payable on a quarterly basis with a final balloon payment of $52.5 million payable after 7 years. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Long Term Debt—NR Satu Facility” for a summary of certain terms.
|
17.
|
Purchase, Sale and Contribution Agreement, dated January 30, 2013, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd., providing for, among other things, the acquisition of the
Golar Maria f
or a purchase price of approximately $215.0 million less the assumed debt of $89.5 million.
|
18.
|
Bond Agreement dated October 11, 2012 between Golar LNG Partners LP and Norsk Tillitsmann ASA as bond trustee. We completed the issuance of NOK 1,300 million senior unsecured bonds that mature in October 2017. The bonds bear interest at a rate equal to 3 months NIBOR plus a margin of 5.20% payable quarterly. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Long-term Debt—Golar PArtners Operating Credit Facility” for a summary of certain terms.
|
19.
|
$275 million Facility Agreement, dated June 25, 2013, by and among a group of banks as the lender and Golar Partners Operating LLC as the borrower. We refinanced existing lease financing arrangements in respect of two vessels, the
Golar Winter
and the
Golar Grand
, and entered into a new five year,
$275 million
loan facility with a banking consortium. The total facility amount is $275 million and is split into two tranches, a $225 million term loan facility and a $50 million revolving facility. The facility bears interest at LIBOR plus a margin of 3%. The loan is payable on a quarterly basis with a final balloon payment of $130 million payable after 5 years. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources” for a summary of certain terms.
|
20.
|
Purchase, Sale and Contribution Agreement, dated December 5, 2013, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd., providing for the acquisition of the
Golar Igloo
for a purchase price of approximately $310.0 million less assumed debt of $161.3 million plus the fair value of the interest rate swap asset of $3.6 million and net working capital adjustments.
|
21.
|
The Purchase, Sale and Contribution Agreement dated December 15, 2014, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd., providing for, among other things, the acquisition of the
Golar Eskimo
for a purchase price of $330.0 million for the vessel plus $9.0 million of working capital adjustments less assumed bank debt of $108.0 million.
|
22.
|
Letter Agreement, dated January 20, 2015, by and between Golar LNG Partners LP and Golar LNG Limited. See “Item 7—Major Unitholders and Related Party Transactions—B. Related Party Transactions—Other Related Party Transactions—Vessel Acquisitions and Related Transactions” for a summary of certain terms.
|
23.
|
Eskimo Vendor Loan agreement, dated as of January 20, 2015, by and between Golar LNG Partners LP and Golar LNG Limited. See “Item 7—Major Unitholders and Related Party Transactions—B. Related Party Transactions—Other Related Party Transactions—Vessel Acquisitions and Related Transactions” for a summary of certain terms.
|
24.
|
Facility Agreement between Golar Hull M021 Corp, Golar Hull M026 Corp, Golar Hull M2031 Corp, Golar Hull M2022 Corp, Golar Hull M2023 Corp, Golar Hull M2027 Corp, Golar Hull M2024 Corp, Golar LNG NB 12 Corporation, and a consortium of banks for $1.125 billion facility, dated July 24, 2013. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Long-Term Debt—Golar Igloo Debt”.
|
25.
|
Supplemental Agreement between Golar Hull M021 Corp, Golar Hull M026 Corp, Golar Hull M2031 Corp, Golar Hull M2022 Corp, Golar Hull M2023 Corp, Golar Hull M2027 Corp, Golar Hull M2024 Corp, Golar LNG NB 12 Corporation, and a consortium of banks for $1.125 billion facility, dated July 25, 2013. See “Item 5—Operating and Financial Review and Prospects—Liquidity and Capital Resources—Long-Term Debt”.
|
26.
|
Second Supplemental Agreement between Golar Hull M021 Corp, Golar Hull M026 Corp, Golar Hull M2031 Corp, Golar Hull M2022 Corp, Golar Hull M2023 Corp, Golar Hull M2027 Corp, Golar Hull M2024 Corp, Golar LNG NB 12 Corporation, and a consortium of banks for $1.125 billion facility, dated August 28, 2014. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Long-Term Debt”.
|
27.
|
$120 million Loan Agreement dated April 19, 2006, among Golar LNG 2234 Corporation, as Borrower, Fokus Bank ASA, as Swap Bank, Agent and Security Trustee and the lenders party thereto. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Long-Term Debt”.
|
28.
|
$125 million Facilities Agreement dated June 17, 2010, among Golar Freeze Holding Co., DnB NOR Bank ASA, as Facility Agent and Security Agent, the lenders party thereto and the other parties thereto. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Long-Term Debt”.
|
29.
|
Supplemental Deed, dated December 23, 2014, relating to the $120 million Loan Agreement dated April 19, 2006, among Golar LNG 2234 Corporation, as Borrower, Fokus Bank ASA, as Swap Bank, Agent and Security Trustee and the lenders party thereto. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources”.
|
30.
|
Time charter party agreement by and between Golar Grand Corporation and Golar Trading Corporation, with respect to the Golar Grand, dated as of May 27, 2015. See “Item 4—Information on the Partnership—B. Business Overview—Our Fleet and Customers”.
|
31.
|
Bond Agreement dated May 20, 2015 between Golar LNG Partners LP and Nordic Trustee ASA as bond trustee. See “Item 5-Operating and Financial Review and Prospects-Liquidity and Capital Resources-Long-Term Debt-Norwegian Bonds” for a summary of certain terms.
|
32.
|
Fourth Supplemental Deed to facility agreement, made by and among DNB Bank ASA (formerly known as DnB NOR Bank ASA), Citigroup Global Markets Limited and DVB Bank SE, London Branch, as the mandated lead arrangers, the other lenders party thereto, Golar LNG 2234 LLC, as borrower, and the other parties thereto, with respect to the Maria and Freeze refinancing. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Long-Term Debt—Golar Maria and Golar Freeze Facility”.
|
33.
|
Purchase and Sale Agreement made by and between Golar LNG Limited and Golar Partners Operating LLC, dated February 10, 2016 with respect to the acquisition of the
Golar Tundra
. See “Item 7—Major Unitholders and Related Party Transactions—B. Related Party Transactions—Other Related Party Transactions—Vessel Acquisitions and Related Transactions”.
|
34.
|
Facilities Agreement for an $800 million senior secured amortizing term loan and revolving credit facility, dated April 27, 2016, by and among Golar Partners Operating LLC, Citigroup Global Markets Limited, DNB (UK) Limited, Nordea Bank Norge ASA, as agent and security agent and the other parties thereto. See “Item 5—Operating and Financial Review and Prospects—B. Liquidity and Capital Resources-Long-Term Debt—$800 million credit facility” for a summary of certain terms.
|
35.
|
Bareboat charter, Memorandum of Agreement and Common Terms Agreements, by and among Golar Eskimo Corp, and a subsidiary of China Merchants Bank Limited (Eskimo SPV), dated November 4, 2015, providing for the sale and leaseback of the Golar Eskimo. See note 5 “Variable Interest Entities” in the notes to our consolidated financial statements for a summary of certain terms.
|
E.
|
Taxation
|
•
|
an individual U.S. citizen or resident (as determined for U.S. federal income tax purposes),
|
•
|
a corporation (or other entity that is classified as a corporation for U.S. federal income tax purposes) organized under the laws of the United States or any of its political subdivisions,
|
•
|
an estate the income of which is subject to U.S. federal income taxation regardless of its source, or
|
•
|
a trust if (i) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (ii) the trust has a valid election in effect to be treated as a U.S. person for U.S. federal income tax purposes.
|
•
|
at least 75.0% of our gross income (including the gross income of our vessel-owning subsidiaries) for such taxable year consists of passive income (
e.g.
, dividends, interest, capital gains from the sale or exchange of investment property, and rents derived other than in the active conduct of a rental business); or
|
•
|
at least 50.0% of the average value of the assets held by us (including the assets of our vessel-owning subsidiaries) during such taxable year produce, or are held for the production of, passive income.
|
•
|
the excess distribution or gain would be allocated ratably over the Non-Electing Holder’s aggregate holding period for the common units;
|
•
|
the amount allocated to the current taxable year and any taxable year prior to the taxable year we were first treated as a PFIC with respect to the Non-Electing Holder would be taxed as ordinary income; and
|
•
|
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayers for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
•
|
fails to provide an accurate taxpayer identification number;
|
•
|
is notified by the IRS that it has failed to report all interest or corporate distributions required to be reported on its U.S. federal income tax returns; or
|
•
|
in certain circumstances, fails to comply with applicable certification requirements.
|
•
|
we are not treated as carrying on a trade, profession or vocation in the United Kingdom;
|
•
|
such holders do not have a branch or agency or permanent establishment in the United Kingdom to which such common units pertain; and
|
•
|
such holders do not use or hold and are not deemed or considered to use or hold their common units in the course of carrying on a trade, profession or vocation in the United Kingdom.
|
•
|
pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Partnership;
|
•
|
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 Partnership are being made only in accordance with authorizations of management and directors of the Partnership; and
|
•
|
provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Partnership’s assets that could have a material effect on the financial statements.
|
|
2015
|
|
2014
|
||||
Audit Fees
|
$
|
808,593
|
|
|
$
|
602,385
|
|
Tax Fees
|
104,471
|
|
|
64,040
|
|
||
|
$
|
913,064
|
|
|
$
|
666,425
|
|
Month of repurchase
|
Total number of common units purchased
|
|
|
Average price paid per common unit
|
|
|
Total number of common units purchased as part of publicly announced plans or program
|
|
|
Maximum value of common units that may be purchased under the plans or program
|
|
||
December 2015
|
496,000
|
|
|
$
|
12.03
|
|
|
496,000
|
|
|
$
|
25,000,000
|
|
As of December 31, 2015
|
496,000
|
|
|
|
|
496,000
|
|
|
$
|
19,000,000
|
|
Month of repurchase
|
Total number of common units purchased
|
|
|
Average price paid per common unit
|
|
|
Total number of common units purchased as part of publicly announced plans or program
|
|
|
Maximum value of common units that may be purchased under the plans or program
|
|
||
August 2015
|
167,000
|
|
|
$
|
20.81
|
|
|
167,000
|
|
|
|
||
September 2015
|
73,000
|
|
|
$
|
20.91
|
|
|
73,000
|
|
|
$
|
25,000,000
|
|
As of December 31, 2015
|
240,000
|
|
|
|
|
240,000
|
|
|
$
|
20,000,000
|
|
Exhibit
Number
|
|
Description
|
1.1**
|
|
Certificate of Limited Partnership of Golar LNG Partners LP (incorporated by reference to Exhibit 3.1 to the registrant’s Registration Statement on Form F-1 (Registration No. 333-173160))
|
1.2**
|
|
First Amended and Restated Agreement of Limited Partnership of Golar LNG Partners LP (incorporated by reference to the Exhibits of the Partnership’s Annual Report on Form 20-F for fiscal year ended December 31, 2011)
|
1.3**
|
|
Amendment No. 1 to the First Amended and Restated Agreement of Limited Partnership of Golar LNG Partners, L.P., dated December 13, 2012 (incorporated by reference to Exhibit 99.1 to the Registrant’s Report of Foreign Private Issuer on Form 6-K filed on January 11, 2013)
|
4.1**
|
|
Facility Agreement dated September 29, 2008 for a Senior Secured Revolving Credit Facility by and among Golar LNG Partners L.P. (as borrower) and the Banks and Financial Institutions Referred to therein (as lenders) (incorporated by reference to Exhibit 10.1 to the registrant’s Registration Statement on Form F-1 (Registration No. 333-173160))
|
4.2**
|
|
Omnibus Agreement dated April 13, 2011, by and among Golar LNG Ltd., Golar LNG Partners LP, Golar GP LLC and Golar Energy Limited (incorporated by reference to the Exhibits of the Partnership’s Annual Report on Form 20-F for fiscal year ended December 31, 2011)
|
4.2(a)**
|
|
Amendment No. 1 to Omnibus Agreement, dated October 5, 2011 by and among Golar LNG Ltd., Golar LNG Partners LP, Golar GP LLC and Golar Energy Limited (incorporated by reference to the Exhibits of the Partnership’s Annual Report on Form 20-F for fiscal year ended December 31, 2011)
|
4.3**
|
|
First Amended and Restated Management and Administrative Services Agreement, effective as of July 1, 2011, between Golar LNG Partners LP and Golar Management Limited (incorporated by reference to the Exhibits of the Partnership’s Annual Report on Form 20-F for fiscal year ended December 31, 2011)
|
4.4**
|
|
Contribution and Conveyance Agreement, dated as of April 5, 2011, among Golar LNG Limited, Golar GP LLC, Golar LNG Partners LP, Golar LNG Holding Co., and Golar Partners Operating LLC (incorporated by reference to the Exhibits of the Partnership’s Annual Report on Form 20-F for fiscal year ended December 31, 2011)
|
4.5**
†
|
|
Time Charter Party dated July 2, 1997 between Faraway Maritime Shipping Company and Pertamina (incorporated by reference to Exhibit 10.5 to the registrant’s Registration Statement on Form F-1 (Registration No. 333-173160))
|
4.6**
†
|
|
Time Charter Party dated August 27, 2003 between Golar 2215 UK Ltd. and Methane Services Limited (incorporated by reference to Exhibit 10.6 to the registrant’s Registration Statement on Form F-1 (Registration No. 333-173160))
|
4.7**
†
|
|
Time Charter Party dated September 4, 2007 between
Golar Spirit
UK Ltd. and Petróleo Brasileiro S.A. (incorporated by reference to Exhibit 10.7 to the registrant’s Registration Statement on Form F-1 (Registration No. 333-173160))
|
4.10**
†
|
|
Time Charter Party dated September 4, 2007 between
Golar Winter
UK Ltd. and Petróleo Brasileiro S.A. (incorporated by reference to Exhibit 10.10 to the registrant’s Registration Statement on Form F-1 (Registration No. 333-173160))
|
4.11**
†
|
|
Operation and Services Agreement dated September 4, 2007 between Golar Serviços de Operação de Embarcações Limitada and Petróleo Brasileiro S.A. (incorporated by reference to Exhibit 10.11 to the registrant’s Registration Statement on Form F-1 (Registration No. 333-173160))
|
4.13**
|
|
Form of Management Agreement with Golar Management Limited (incorporated by reference to Exhibit 10.13 to the registrant’s Registration Statement on Form F-1 (Registration No. 333-173160))
|
4.14**
|
|
$20.0 Million Revolving Credit Agreement by and between Golar LNG Partners LP and Golar LNG Limited (incorporated by reference to the Exhibits of the Partnership’s Annual Report on Form 20-F for fiscal year ended December 31, 2011)
|
4.15**
|
|
Purchase, Sale and Contribution Agreement, dated October 5, 2011, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd., providing for, among other things, the acquisition of the Golar Freeze (incorporated by reference to the Exhibits of the Partnership’s Annual Report on Form 20-F for fiscal year ended December 31, 2011)
|
4.16**
|
|
Loan Agreement, dated October 18, 2011, by and between Golar LNG Limited as the lender and Golar LNG Partners LP as the borrower (incorporated by reference to the Exhibits of the Partnership’s Annual Report on Form 20-F for fiscal year ended December 31, 2011)
|
Exhibit
Number
|
|
Description
|
4.17**
|
|
Purchase, Sale and Contribution Agreement, dated July 9, 2012, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd., providing for, among other things, the acquisition of the
NR Satu
(incorporated by reference to Exhibit 10.2 to the registrant’s Report of Foreign Issuer on Form 6-K filed on July 16, 2012)
|
4.18**
|
|
Purchase, Sale and Contribution Agreement, dated November 1, 2012, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd., providing for, among other things, the acquisition of the
Golar Grand
(incorporated by reference to Exhibit 10.2 to the registrant’s Report of Foreign Issuer on Form 6-K filed on November 6, 2012)
|
4.19**
|
|
$175 million Facility Agreement, dated December 14, 2012, by and among a group of banks as the lender and PT Golar Indonesia as the borrower (incorporated by reference to Exhibit 10.3 to the registrant’s Report of Foreign Issuer on Form 6-K filed on February 5, 2013)
|
4.20**
|
|
Purchase, Sale and Contribution Agreement, dated January 30, 2013, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd., providing for, among other things, the acquisition of the
Golar Maria
(incorporated by reference to Exhibit 10.2 to the registrant’s Report of Foreign Issuer on Form 6-K filed on February 5, 2013)
|
4.21**
|
|
Bond Agreement dated October 11, 2012 between Golar LNG Partners LP and Norsk Tillitsmann ASA as bond trustee (incorporated by reference to Exhibit 10.3 to the registrant’s Report of Foreign Issuer on Form 6-K filed on November 6, 2012)
|
4.22**
|
|
$275 million Facility Agreement, dated June 25, 2013, by and among a group of banks as the lender and Golar Partners Operating LLC as the borrower (incorporated by reference to Exhibit 4.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on September 30, 2013)
|
4.23**
|
|
Purchase, Sale and Contribution Agreement, dated December 5, 2013, by and between Golar LNG Partners LP, Golar Partners Operating LLC and Golar LNG Ltd., providing for, among other things, the acquisition of the
Golar Igloo
(incorporated by reference to Exhibit 10.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on December 10, 2013)
|
4.24**
|
|
Facility Agreement between Golar Hull M021 Corp, Golar Hull M026 Corp, Golar Hull M2031 Corp, Golar Hull M2022 Corp, Golar Hull M2023 Corp, Golar Hull M2027 Corp, Golar Hull M2024 Corp, Golar LNG NB 12 Corporation, and a consortium of banks for $1.125 billion facility, dated July 24, 2013 (incorporated by reference to Exhibit 10.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on December 8, 2014)
|
4.25**
|
|
Supplemental Agreement between Golar Hull M021 Corp, Golar Hull M026 Corp, Golar Hull M2031 Corp, Golar Hull M2022 Corp, Golar Hull M2023 Corp, Golar Hull M2027 Corp, Golar Hull M2024 Corp, Golar LNG NB 12 Corporation, and a consortium of banks for $1.125 billion facility, dated July 25, 2013 (incorporated by reference to Exhibit 10.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on December 8, 2014)
|
4.26**
|
|
Second Supplemental Agreement between Golar Hull M021 Corp, Golar Hull M026 Corp, Golar Hull M2031 Corp, Golar Hull M2022 Corp, Golar Hull M2023 Corp, Golar Hull M2027 Corp, Golar Hull M2024 Corp, Golar LNG NB 12 Corporation, and a consortium of banks for $1.125 billion facility, dated August 28, 2014 (incorporated by reference to Exhibit 10.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on December 8, 2014)
|
4.27**
|
|
Purchase, Sale and Contribution Agreement of the acquisition of the Golar Eskimo dated December 15, 2014 among Golar LNG Ltd, Golar LNG Partners LP and Golar Partners Operating LLC (incorporated by reference to Exhibit 10.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on December 19, 2014)
|
4.28**
|
|
Letter Agreement, dated as of January 20, 2015, by and between Golar LNG Partners LP and Golar LNG Limited (incorporated by reference to Exhibit 10.3 to the registrant’s Report of Foreign Issuer on Form 6-K filed on January 22, 2015)
|
4.29**
|
|
Loan Agreement, dated as of January 20, 2015, by and between Golar LNG Partners LP and Golar LNG Limited, providing for the Eskimo Vendor Loan (incorporated by reference to Exhibit 10.3 to the registrant’s Report of Foreign Issuer on Form 6-K filed on January 22, 2015)
|
4.30**
|
|
$120 million Loan Agreement dated April 19, 2006 and as amended on February 27, 2008, among Golar LNG 2234 Corporation, as Borrower, Fokus Bank ASA, as Swap Bank, Agent and Security Trustee and the lenders party thereto (incorporated by reference to the registrant’s Amendment No. 1 to Annual Report on Form 20-F/A filed on April 30, 2015)
|
4.31**
|
|
$125 million Facilities Agreement dated June 17, 2010, among Golar Freeze Holding Co., DnB NOR Bank ASA, as Facility Agent and Security Agent, the lenders party thereto and the other parties thereto (incorporated by reference to the registrant’s Amendment No. 1 to Annual Report on Form 20-F/A filed on April 30, 2015)
|
4.32**
|
|
Supplemental Deed, dated December 23, 2014, relating to the $120 million Loan Agreement dated April 19, 2006, among Golar LNG 2234 Corporation, as Borrower, Fokus Bank ASA, as Swap Bank, Agent and Security Trustee and the lenders party thereto (incorporated by reference to the registrant’s Amendment No. 1 to Annual Report on Form 20-F/A filed on April 30, 2015)
|
4.33**
|
|
Supplemental Deed, dated April 29, 2015, between Golar LNG Limited, as lender and Golar LNG Partners LP as borrower (incorporated by reference to the registrant’s Amendment No. 1 to Annual Report on Form 20-F/A filed on April 30, 2015)
|
4.34**
|
|
Bond Agreement dated May 20, 2015 between Golar LNG Partners LP and Nordic Trustee ASA as bond trustee (incorporated by reference to Exhibit 99.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on May 26, 2015)
|
4.35**
|
|
Time charter party agreement by and between Golar Grand Corporation and Golar Trading Corporation, with respect to the Golar Grand, dated as of May 27, 2015 (incorporated by reference to Exhibit 4.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on July 7, 2015)
|
4.36**
|
|
Fourth Supplemental Deed to facility agreement, made by and among DNB Bank ASA (formerly known as DnB NOR Bank ASA), Citigroup Global Markets Limited and DVB Bank SE, London Branch, as the mandated lead arrangers, the other lenders party thereto, Golar LNG 2234 LLC, as borrower, and the other parties thereto, with respect to the Maria and Freeze refinancing (incorporated by reference to Exhibit 4.2 to the registrant’s Report of Foreign Issuer on Form 6-K filed on July 7, 2015)
|
4.37**
|
|
Purchase and Sale Agreement made by and between Golar LNG Limited and Golar Partners Operating LLC, dated February 10, 2016 with respect to the acquisition of the Golar Tundra (incorporated by reference to Exhibit 10.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on February 2, 2016)
|
4.38*
|
|
Facilities Agreement for an $800 million senior secured amortizing term loan and revolving credit facility, dated April 27, 2016, by and among Golar Partners Operating LLC, Citigroup Global Markets Limited, DNB (UK) Limited, Nordea Bank Norge ASA, as agent and security agent and the other parties thereto
|
4.39*
|
|
Bareboat charter by and among Golar Eskimo Corp and Sea 23 Leasing Co. Limited, dated November 4, 2015.
|
4.40*
|
|
Memorandum of Agreement by and among Golar Eskimo Corp and Sea 23 Leasing Co. Limited, dated November 4, 2015.
|
4.41*
|
|
Common Terms Agreements, by and among Golar Eskimo Corp and Sea 23 Leasing Co. Limited, dated November 4, 2015, providing for the sale and leaseback of the Golar Eskimo.
|
8.1*
|
|
Subsidiaries of Golar LNG Partners LP
|
12.1*
|
|
Rule 13a-14(a)/15d-14(a) Certification of Golar LNG Partners LP Principal Executive Officer
|
12.2*
|
|
Rule 13a-14(a)/15d-14(a) Certification of Golar LNG Partners LP Principal Financial and Accounting Officer
|
13.1*
|
|
Certification under Section 906 of the Sarbanes-Oxley Act of 2002 of the Principal Executive Officer
|
13.2*
|
|
Certification under Section 906 of the Sarbanes-Oxley Act of 2002 of the Principal Financial and Accounting Officer
|
15.1*
|
|
Consent of Independent Registered Public Accounting Firm - Ernst & Young LLP
|
15.2*
|
|
Consent of Independent Registered Public Accounting Firm - PricewaterhouseCoopers LLP
|
99.1*
|
|
Letter from PricewaterhouseCoopers, Inc. addressed to the SEC regarding the disclosure provided in Item 16F
|
101. INS
|
|
XBRL Instance Document
|
101. SCH
|
|
XBRL Taxonomy Extension Schema
|
101. CAL
|
|
XBRL Taxonomy Extension Schema Calculation Linkbase
|
101. DEF
|
|
XBRL Taxonomy Extension Schema Definition Linkbase
|
101. LAB
|
|
XBRL Taxonomy Extension Schema Label Linkbase
|
101. PRE
|
|
XBRL Taxonomy Extension Schema Presentation Linkbase
|
|
|
GOLAR LNG PARTNERS LP
|
||
|
|
|
|
|
|
|
By:
|
/s/ Graham Robjohns
|
|
|
|
|
Name:
|
Graham Robjohns
|
|
|
|
Title:
|
Principal Executive Officer
|
Date:
|
April 29, 2016
|
|
|
|
|
Page
|
GOLAR LNG PARTNERS LP
|
|
AUDITED CONSOLIDATED FINANCIAL STATEMENTS
|
|
/s/ Ernst & Young LLP
|
|
London, United Kingdom
|
|
April 29, 2016
|
|
/s/ Ernst & Young LLP
|
|
London, United Kingdom
|
|
April 29, 2016
|
|
/s/ PricewaterhouseCoopers LLP
|
|
PricewaterhouseCoopers LLP
|
|
United Kingdom
|
|
April 30, 2014
|
|
|
Notes
|
|
2015
|
|
|
2014
|
|
|
2013
|
|
|
Operating revenues
|
|
|
|
|
|
|
|
|
|
|
|
Time charter revenues
|
7
|
|
|
393,132
|
|
|
396,026
|
|
|
329,190
|
|
Time charter revenues from related parties
|
26
|
|
|
41,555
|
|
|
—
|
|
|
—
|
|
Total operating revenues
|
|
|
|
434,687
|
|
|
396,026
|
|
|
329,190
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
Vessel operating expenses
(1)
|
|
|
|
65,244
|
|
|
59,191
|
|
|
52,390
|
|
Voyage and commission expenses
|
|
|
|
7,724
|
|
|
6,048
|
|
|
5,239
|
|
Administrative expenses
(2)
|
|
|
|
6,643
|
|
|
5,757
|
|
|
5,194
|
|
Depreciation and amortization
|
|
|
|
99,256
|
|
|
80,574
|
|
|
66,336
|
|
Total operating expenses
|
|
|
|
178,867
|
|
|
151,570
|
|
|
129,159
|
|
Operating income
|
|
|
|
255,820
|
|
|
244,456
|
|
|
200,031
|
|
Financial income (expense)
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
(3)
|
|
|
|
1,315
|
|
|
1,131
|
|
|
1,097
|
|
Interest expense
(4)
|
|
|
|
(55,324
|
)
|
|
(43,781
|
)
|
|
(43,195
|
)
|
Other financial items, net
|
8
|
|
|
(23,459
|
)
|
|
(22,118
|
)
|
|
(1,661
|
)
|
Net financial expenses
|
|
|
|
(77,468
|
)
|
|
(64,768
|
)
|
|
(43,759
|
)
|
Income before income taxes
|
|
|
|
178,352
|
|
|
179,688
|
|
|
156,272
|
|
Income taxes
|
9
|
|
|
(5,669
|
)
|
|
5,047
|
|
|
(5,453
|
)
|
Net income
|
|
|
|
172,683
|
|
|
184,735
|
|
|
150,819
|
|
Net income attributable to non-controlling interest
|
|
|
|
(10,547
|
)
|
|
(10,581
|
)
|
|
(9,523
|
)
|
Net income attributable to Golar LNG Partners LP Owners
|
|
|
|
162,136
|
|
|
174,154
|
|
|
141,296
|
|
General Partner’s interest in net income
(5)
|
|
|
|
18,469
|
|
|
23,908
|
|
|
13,796
|
|
Limited Partners’ interest in net income
|
|
|
|
143,667
|
|
|
150,246
|
|
|
127,500
|
|
Earnings per unit:
|
|
|
|
|
|
|
|
|
|
|
|
Common units (basic and diluted)
|
29
|
|
|
2.38
|
|
|
2.47
|
|
|
2.31
|
|
Cash distributions declared and paid per unit in the period
|
29
|
|
|
2.30
|
|
|
2.14
|
|
|
2.05
|
|
(1)
|
This includes related party vessel management fee recharges of
$7.6 million
,
$7.7 million
and
$6.7 million
for the years ended
December 31, 2015
,
2014
and
2013
, respectively. See note 26.
|
(2)
|
This includes related party management and administrative fee recharges of
$2.9 million
,
$2.9 million
and
$2.6 million
for the years ended
December 31, 2015
,
2014
and
2013
, respectively. See note 26.
|
(3)
|
This includes related party interest income of
$0.2 million
,
nil
and
nil
for the years ended
December 31, 2015
,
2014
and
2013
, respectively. See note 26.
|
(4)
|
This includes related party interest expense of
$4.2 million
,
nil
and
$2.0 million
for the years ended
December 31, 2015
,
2014
and
2013
, respectively. See note 26.
|
(5)
|
This includes net income attributable to IDR holders of
$15.2 million
,
$18.3 million
and
$11.0 million
for the years ended
December 31, 2015
,
2014
and
2013
, respectively.
|
|
2015
|
|
|
2014
|
|
|
2013
|
|
Net income
|
172,683
|
|
|
184,735
|
|
|
150,819
|
|
Unrealized net (loss) gain on qualifying cash flow hedging instruments:
|
|
|
|
|
|
|||
Other comprehensive (loss) income before reclassification
(1)
|
(5,106
|
)
|
|
(1,031
|
)
|
|
7,370
|
|
Amounts reclassified from accumulated other comprehensive income (loss) to statement of operations
(2)
|
(2,533
|
)
|
|
1,339
|
|
|
(775
|
)
|
Net other comprehensive (loss) income
|
(7,639
|
)
|
|
308
|
|
|
6,595
|
|
Comprehensive income
|
165,044
|
|
|
185,043
|
|
|
157,414
|
|
Comprehensive income attributable to:
|
|
|
|
|
|
|
|
|
Partners’ Equity
|
154,497
|
|
|
174,462
|
|
|
147,891
|
|
Non-controlling interest
|
10,547
|
|
|
10,581
|
|
|
9,523
|
|
|
165,044
|
|
|
185,043
|
|
|
157,414
|
|
|
Notes
|
|
2015
|
|
|
2014
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
Current assets
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
40,686
|
|
|
98,998
|
|
Restricted cash
|
18
|
|
|
56,714
|
|
|
25,831
|
|
Trade accounts receivable
|
12
|
|
|
20,824
|
|
|
9,122
|
|
Other receivables and prepaid expenses
|
13
|
|
|
5,160
|
|
|
7,516
|
|
Amounts due from related parties
|
26
|
|
|
7,128
|
|
|
—
|
|
Inventories
|
|
|
|
1,339
|
|
|
89
|
|
Total current assets
|
|
|
|
131,851
|
|
|
141,556
|
|
Long-term assets
|
|
|
|
|
|
|
|
|
Restricted cash
|
18
|
|
|
136,559
|
|
|
146,552
|
|
Vessels and equipment, net
|
14
|
|
|
1,730,676
|
|
|
1,501,170
|
|
Vessel under capital lease, net
|
15
|
|
|
116,727
|
|
|
122,253
|
|
Intangible assets, net
|
16
|
|
|
99,096
|
|
|
16,032
|
|
Deferred charges
|
17
|
|
|
13,676
|
|
|
13,356
|
|
Other non-current assets
|
19
|
|
|
16,753
|
|
|
15,283
|
|
Total assets
|
|
|
|
2,245,338
|
|
|
1,956,202
|
|
LIABILITIES AND EQUITY
|
|
|
|
|
|
|
|
|
Current liabilities
|
|
|
|
|
|
|
|
|
Short-term debt due to related parties
|
26
|
|
|
—
|
|
|
20,000
|
|
Current portion of long term-debt
|
22
|
|
|
121,739
|
|
|
124,221
|
|
Trade accounts payable
|
|
|
|
3,959
|
|
|
2,621
|
|
Accrued expenses
|
20
|
|
|
21,230
|
|
|
21,700
|
|
Amounts due to related parties
|
26
|
|
|
—
|
|
|
9,851
|
|
Other current liabilities
|
21
|
|
|
119,084
|
|
|
99,481
|
|
Total current liabilities
|
|
|
|
266,012
|
|
|
277,874
|
|
Long-term liabilities
|
|
|
|
|
|
|
|
|
Long-term debt
|
22
|
|
|
1,223,049
|
|
|
908,311
|
|
Obligations under capital lease
|
23
|
|
|
143,112
|
|
|
150,997
|
|
Other long-term liabilities
|
24
|
|
|
16,650
|
|
|
17,281
|
|
Total liabilities
|
|
|
|
1,648,823
|
|
|
1,354,463
|
|
Commitments and contingencies (See note 27)
|
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
Partners’ capital:
|
|
|
|
|
|
|
|
|
Common unitholders: 45,167,096 units issued and outstanding at December 31, 2015 and 45,663,096 units issued and outstanding at December 31, 2014
|
|
|
|
486,533
|
|
|
490,824
|
|
Subordinated unitholders: 15,949,831 units issued and outstanding at December 31, 2015 and 2014
|
|
|
|
12,649
|
|
|
12,063
|
|
General partner interest: 1,257,408 units issued and outstanding at December 31, 2015 and 2014
|
|
|
|
40,293
|
|
|
33,320
|
|
Total partners’ capital
|
|
|
|
539,475
|
|
|
536,207
|
|
Accumulated other comprehensive loss
|
|
|
|
(9,725
|
)
|
|
(2,086
|
)
|
|
|
|
|
529,750
|
|
|
534,121
|
|
Non-controlling interest
|
|
|
|
66,765
|
|
|
67,618
|
|
Total equity
|
|
|
|
596,515
|
|
|
601,739
|
|
Total liabilities and equity
|
|
|
|
2,245,338
|
|
|
1,956,202
|
|
|
Notes
|
|
2015
|
|
|
2014
|
|
|
2013
|
|
|
Operating activities
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
172,683
|
|
|
184,735
|
|
|
150,819
|
|
Adjustments to reconcile net income to net cash provided by operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
|
99,256
|
|
|
80,574
|
|
|
66,336
|
|
Recognition of foreign tax losses
|
|
|
(4,945
|
)
|
|
(11,832
|
)
|
|
—
|
|
|
Release of deferred tax asset
|
|
|
4,076
|
|
|
2,308
|
|
|
—
|
|
|
Amortization of deferred charges
|
|
|
|
6,308
|
|
|
3,554
|
|
|
5,828
|
|
Unrealized foreign exchange (gains) losses
|
|
|
|
(493
|
)
|
|
(674
|
)
|
|
(7,435
|
)
|
Drydocking expenditure
|
|
|
|
(15,093
|
)
|
|
(2,468
|
)
|
|
(50,979
|
)
|
Interest element included in obligations under capital leases
|
|
|
|
279
|
|
|
1,639
|
|
|
233
|
|
Change in assets and liabilities, net of effects from purchase of
Golar Eskimo
,
Golar Igloo
and
Golar Maria
:
|
|
|
|
|
|
|
|
||||
Trade accounts receivable
|
|
|
|
(11,704
|
)
|
|
(1,989
|
)
|
|
(717
|
)
|
Inventories
|
|
|
|
(642
|
)
|
|
1,005
|
|
|
971
|
|
Prepaid expenses, accrued income and other assets
|
|
|
|
(311
|
)
|
|
8,901
|
|
|
(9,747
|
)
|
Other long term assets
|
|
|
3,499
|
|
|
—
|
|
|
—
|
|
|
Amounts due from/to related parties
|
|
|
|
(18,071
|
)
|
|
6,659
|
|
|
1,581
|
|
Trade accounts payable
|
|
|
|
902
|
|
|
755
|
|
|
(1,820
|
)
|
Accrued expenses
|
|
|
|
(4,578
|
)
|
|
24
|
|
|
(6,632
|
)
|
Restricted cash
|
|
|
(7,686
|
)
|
|
—
|
|
|
—
|
|
|
Other current liabilities
|
|
|
|
(11,250
|
)
|
|
3,789
|
|
|
241
|
|
Net cash provided by operating activities
|
|
|
|
212,230
|
|
|
276,980
|
|
|
148,679
|
|
Investing activities
|
|
|
|
|
|
|
|
|
|
|
|
Additions to vessels and equipment
|
|
|
|
(3,667
|
)
|
|
(1,293
|
)
|
|
(18,152
|
)
|
Acquisition of
Golar Eskimo
,
Golar Igloo
and
Golar Maria
, net of cash acquired
(1)
|
11
|
|
|
(5,971
|
)
|
|
(155,319
|
)
|
|
(119,927
|
)
|
Short-term debt granted to related parties
|
|
|
(50,000
|
)
|
|
—
|
|
|
—
|
|
|
Repayment of short-term debt granted to related parties
|
|
|
50,000
|
|
|
—
|
|
|
—
|
|
|
Restricted cash
|
|
|
|
10,372
|
|
|
(11,143
|
)
|
|
54,027
|
|
Net provided by (cash used) in investing activities
|
|
|
|
734
|
|
|
(167,755
|
)
|
|
(84,052
|
)
|
Financing activities
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from short-term debt due to related parties
|
|
|
—
|
|
|
20,000
|
|
|
20,000
|
|
|
Repayment of short-term debt due to related parties
|
|
|
—
|
|
|
—
|
|
|
(20,000
|
)
|
|
Proceeds from long-term debt
|
22
|
|
|
644,070
|
|
|
115,000
|
|
|
230,000
|
|
Repayments of long-term debt (including related parties)
|
|
|
|
(707,202
|
)
|
|
(93,558
|
)
|
|
(149,822
|
)
|
Repayments of obligations under capital lease
|
|
|
|
—
|
|
|
(41
|
)
|
|
(2,365
|
)
|
Payments in connection with lease terminations
|
|
|
—
|
|
|
—
|
|
|
(250,980
|
)
|
|
Financing arrangement fees and other costs
|
|
|
|
(6,628
|
)
|
|
(846
|
)
|
|
(4,794
|
)
|
Proceeds from issuance of equity, net of issue costs
|
28
|
|
|
—
|
|
|
—
|
|
|
280,586
|
|
Common units repurchased and canceled
|
28
|
|
|
(5,970
|
)
|
|
—
|
|
|
—
|
|
Restricted cash
|
|
|
(31,248
|
)
|
|
—
|
|
|
—
|
|
|
Cash distributions paid
|
|
|
|
(152,898
|
)
|
|
(140,142
|
)
|
|
(119,875
|
)
|
Dividends paid to non-controlling interests
|
|
|
|
(11,400
|
)
|
|
(13,740
|
)
|
|
(10,604
|
)
|
Net cash used in financing activities
|
|
|
|
(271,276
|
)
|
|
(113,327
|
)
|
|
(27,854
|
)
|
Net (decrease) increase in cash and cash equivalents
|
|
|
|
(58,312
|
)
|
|
(4,102
|
)
|
|
36,773
|
|
Cash and cash equivalents at beginning of period
|
|
|
|
98,998
|
|
|
103,100
|
|
|
66,327
|
|
Cash and cash equivalents at end of period
|
|
|
|
40,686
|
|
|
98,998
|
|
|
103,100
|
|
Supplemental disclosure of cash flow information:
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid during the year for:
|
|
|
|
|
|
|
|
|
|
|
|
Interest paid
|
|
|
|
52,814
|
|
|
43,011
|
|
|
44,651
|
|
Income taxes paid
|
|
|
|
5,124
|
|
|
2,707
|
|
|
5,575
|
|
|
Partners’ Capital
|
|
Accumulated
Other
Comprehensive
Income
(loss)
|
|
Total
before
Non-
controlling
interest
|
|
Non-
controlling
Interest
|
|
Total
Owner’s
Equity
|
||||||||||||
|
Common
Units
|
|
Subordinated
Units
|
|
General
Partner
|
|
|
|
|
||||||||||||
Consolidated balance at December 31, 2012
|
169,515
|
|
—
|
|
3,713
|
|
|
5,447
|
|
|
(8,989
|
)
|
|
169,686
|
|
|
71,858
|
|
|
241,544
|
|
Net income
|
91,576
|
|
|
35,924
|
|
|
13,796
|
|
|
—
|
|
|
141,296
|
|
|
9,523
|
|
|
150,819
|
|
|
Cash distributions
(1)
|
(81,096
|
)
|
|
(32,737
|
)
|
|
(6,042
|
)
|
|
—
|
|
|
(119,875
|
)
|
|
—
|
|
|
(119,875
|
)
|
|
Non-controlling interest dividends
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(10,604
|
)
|
|
(10,604
|
)
|
|
Other comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
6,595
|
|
|
6,595
|
|
|
—
|
|
|
6,595
|
|
|
Net proceeds from issuance of common units
|
274,974
|
|
|
—
|
|
|
5,612
|
|
|
—
|
|
|
280,586
|
|
|
—
|
|
|
280,586
|
|
|
Contribution to equity
(2)
|
20,641
|
|
|
—
|
|
|
421
|
|
|
—
|
|
|
21,062
|
|
|
—
|
|
|
21,062
|
|
|
Consolidated balance at December 31, 2013
|
475,610
|
|
|
6,900
|
|
|
19,234
|
|
|
(2,394
|
)
|
|
499,350
|
|
|
70,777
|
|
|
570,127
|
|
|
Net income
|
111,351
|
|
|
38,895
|
|
|
23,908
|
|
|
—
|
|
|
174,154
|
|
|
10,581
|
|
|
184,735
|
|
|
Cash distributions
(1)
|
(96,577
|
)
|
|
(33,732
|
)
|
|
(9,833
|
)
|
|
—
|
|
|
(140,142
|
)
|
|
—
|
|
|
(140,142
|
)
|
|
Non-controlling interest dividends
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(13,740
|
)
|
|
(13,740
|
)
|
|
Other comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
308
|
|
|
308
|
|
|
—
|
|
|
308
|
|
|
Contribution to equity
|
440
|
|
|
—
|
|
|
11
|
|
|
—
|
|
|
451
|
|
|
—
|
|
|
451
|
|
|
Consolidated balance at December 31, 2014
|
490,824
|
|
|
12,063
|
|
|
33,320
|
|
|
(2,086
|
)
|
|
534,121
|
|
|
67,618
|
|
|
601,739
|
|
|
Net income
|
106,476
|
|
|
37,191
|
|
|
18,469
|
|
|
—
|
|
|
162,136
|
|
|
10,547
|
|
|
172,683
|
|
|
Cash distributions
(1)
|
(104,797
|
)
|
|
(36,605
|
)
|
|
(11,496
|
)
|
|
—
|
|
|
(152,898
|
)
|
|
—
|
|
|
(152,898
|
)
|
|
Non-controlling interest dividends
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(11,400
|
)
|
|
(11,400
|
)
|
|
Other comprehensive loss
|
—
|
|
|
—
|
|
|
—
|
|
|
(7,639
|
)
|
|
(7,639
|
)
|
|
—
|
|
|
(7,639
|
)
|
|
Common units repurchased and canceled
|
(5,970
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(5,970
|
)
|
|
—
|
|
|
(5,970
|
)
|
|
Consolidated balance at December 31, 2015
|
486,533
|
|
|
12,649
|
|
|
40,293
|
|
|
(9,725
|
)
|
|
529,750
|
|
|
66,765
|
|
|
596,515
|
|
(1)
|
This includes cash distributions to IDR holders for the years ended
December 31, 2015
, 2014 and 2013 of
$8.7 million
,
$5.6 million
and
$3.7 million
, respectively.
|
(2)
|
In June 2013, the
Golar Winter
and the
Golar Grand
were refinanced. We made a cash payment of
$251.0 million
to the lessors to terminate the respective lease financing arrangements (including the associated Golar Winter currency swap of $
25.3 million
) and to acquire the legal title of both these vessels. The transaction to acquire the legal title of the vessels was between controlled entities, thus, the vessels continue to be recorded at their historical book values and the difference between the cash payment made and the carrying value of the vessels is an equity contribution. The contribution recognized was
$21.1 million
.
|
(in thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
|||
Unrealized net loss on qualifying cash flow hedging instruments
|
|
(9,725
|
)
|
|
(2,086
|
)
|
|
(2,394
|
)
|
Vessels (not including converted FSRUs)
|
40 to 55 years
|
Vessels - Converted FSRUs
|
20 years from conversion date
|
Drydocking expenditure
|
2 to 5 years
|
Mooring equipment
|
11 years
|
Vessel
|
2015 Market value
(1)
|
2015 Carrying value
|
(in millions of $)
|
|
|
Golar Winter
|
187.0
|
236.7
|
NR Satu
|
163.5
|
205.2
|
Golar Maria
|
135.0
|
197.5
|
Golar Mazo
|
119.0
|
147.8
|
(i)
|
Golar contributed to us its
100%
interest in the subsidiary which leased the
Golar Winter
. This has been accounted for as a capital contribution by Golar to us.
|
(ii)
|
We issued to Golar
23,127,254
common units and
15,949,831
subordinated units, representing a
98%
limited partner interest in us, in exchange for Golar’s existing
98%
limited partner interest in us; and
|
(iii)
|
We issued
797,492
general partner units to the General Partner, then representing a
2%
general partner interest in us, and
81%
of the IDRs. The remaining
19%
of the IDRs were issued to Golar Energy. The IDRs entitle the holder to increasing percentages of the cash we distribute in excess of
$0.4428
per unit per quarter.
|
(iv)
|
In the IPO, Golar sold
13,800,000
of our common units to the public at a price of
$22.50
per unit, raising gross proceeds of
$310.5 million
.
1,800,000
of our common units were sold pursuant to the exercise of the overallotment option granted to the underwriters. Expenses relating to the IPO were borne by Golar.
|
•
|
Common units
. These represent limited partner interests in us. During the subordination period, the common units have preferential distribution and liquidation rights over the subordinated units as described in note 29. Each outstanding common unit is entitled to
one
vote on matters subject to a vote of common unitholders. However, if at any time, any person or group owns beneficially more than
4.9%
or more of any class of units outstanding, any such units owned by that person or group in excess of
4.9%
may not be voted (except for purposes of nominating a person for election to our board). The voting rights of any such common unitholder in excess of
4.9%
will effectively be redistributed pro rata among the other common unitholders holding less than
4.9%
of the voting power of such class of units. The General Partner, its affiliates and persons who acquired common units with the prior approval of the board of directors will not be subject to this
4.9%
limit except with respect to voting their common units in the election of the
four
elected directors.
|
•
|
Subordinated units.
These represent limited partner interests in us. Subordinated units have limited voting rights and most notably are excluded from voting in the election of the elected directors. During the subordination period, the common units have preferential distribution rights to the subordinated units (see note 29). The subordination period will end on the satisfaction of various tests as prescribed in the Partnership Agreement, or in connection with the removal of the General Partner as the general partner. Upon the expiration of the subordination period, the subordinated units will convert into common units under the circumstances described below.
|
•
|
General Partner units.
General partner units have preferential liquidation and distribution rights over the subordinated units. There is a limitation on the transferability of the general partner interest such that the General Partner may not transfer all or any part of its general partner interest to another person (except to an affiliate of the General Partner or another entity as part of the merger or consolidation of the General Partner with or into another entity or the transfer by the General Partner of all or substantially all of its assets to another entity) prior to March 31, 2021 without the approval of the holders of at least a majority of the outstanding common units, excluding common units held by the General Partner and its affiliates. The general partner units are not entitled to vote in the election of the
four
elected directors. However, the General Partner in its sole discretion appoints
three
of the
seven
board directors.
|
•
|
IDRs.
The IDRs are non-voting and represent rights to receive an increasing percentage of quarterly distributions of available cash from operating surplus after the minimum quarterly distribution and the target distribution levels have been achieved as described in note 29.
|
•
|
the subordination period will end and all outstanding subordinated units will immediately convert into common units on a
one
-for-one basis;
|
•
|
any existing arrearages in payment of the minimum quarterly distribution on the common units will be extinguished; and
|
•
|
the General Partner will have the right to convert its general partner interest and its IDRs (and Golar Energy will have the right to convert its IDRs) into common units or to receive cash in exchange for those interests based on the fair market value of the interests at the time.
|
•
|
A management and administrative services agreement with Golar Management Limited, a subsidiary of Golar (“Golar Management”), pursuant to which Golar Management agreed to provide certain management and administrative services to us;
|
•
|
A
$20.0 million
revolving credit agreement with Golar; and
|
•
|
An Omnibus Agreement with Golar, the General Partner and others governing, among other things:
|
•
|
To what extent we and Golar may compete with each other;
|
•
|
Certain rights of first offer on certain FSRUs and LNG carriers operating under charters for
five
or more years; and
|
•
|
The provision of certain indemnities to us by Golar.
|
Name
|
|
Jurisdiction of
Incorporation
|
|
Purpose
|
Golar Partners Operating LLC
|
|
Marshall Islands
|
|
Holding Company
|
Golar LNG Holding Corporation
|
|
Marshall Islands
|
|
Holding Company
|
Golar Maritime (Asia) Inc.
|
|
Republic of Liberia
|
|
Holding Company
|
Oxbow Holdings Inc.
|
|
British Virgin Islands
|
|
Holding Company
|
Faraway Maritime Shipping Company (60% ownership)
|
|
Republic of Liberia
|
|
Owns and operates
Golar Mazo
|
Golar LNG 2215 Corporation
|
|
Marshall Islands
|
|
Leases
Methane Princess
|
Golar Spirit Corporation
|
|
Marshall Islands
|
|
Owns
Golar Spirit
|
Golar Freeze Holding Corporation
|
|
Marshall Islands
|
|
Owns
Golar Freeze
|
Golar 2215 UK Ltd
|
|
United Kingdom
|
|
Operates
Methane Princess
|
Golar Spirit UK Ltd
|
|
United Kingdom
|
|
Operates
Golar Spirit
|
Golar Winter UK Ltd
|
|
United Kingdom
|
|
Operates
Golar Winter
|
Golar Freeze UK Ltd
|
|
United Kingdom
|
|
Operates
Golar Freeze
|
Golar Servicos de Operacao de Embaracaoes Limited
|
|
Brazil
|
|
Management Company
|
Golar Khannur Corporation
|
|
Marshall Islands
|
|
Holding Company
|
Golar LNG (Singapore) Pte. Ltd.
|
|
Singapore
|
|
Holding Company
|
PT Golar Indonesia*
|
|
Indonesia
|
|
Owns and operates
NR Satu
|
Golar 2226 UK Ltd
|
|
United Kingdom
|
|
Operates
Golar Grand
|
Golar LNG 2234 Corporation
|
|
Republic of Liberia
|
|
Owns and operates
Golar Maria
|
Golar Winter Corporation
|
|
Marshall Islands
|
|
Owns
Golar Winter
|
Golar Grand Corporation
|
|
Marshall Islands
|
|
Owns
Golar Grand
|
Golar Hull M2031 Corporation
|
|
Marshall Islands
|
|
Owns and operates
Golar Igloo
|
Golar Eskimo Corporation**
|
|
Marshall Islands
|
|
Leases and operates
Golar Eskimo
|
(in $ thousands)
|
2016
|
2017
|
2018
|
2019
|
2020
|
After 2020
|
Golar Eskimo
|
12,825
|
12,825
|
12,825
|
12,825
|
12,825
|
61,982
|
(in $ thousands)
|
Golar Eskimo
|
|
Assets
|
|
|
Restricted cash (refer to note 18)
|
4,031
|
|
|
|
|
Liabilities
|
|
|
Long-term debt (refer to note 22)
|
254,070
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
ASSETS
|
|
|
|
|
||
Cash
|
|
14,783
|
|
|
17,181
|
|
Restricted cash
|
|
10,281
|
|
|
10,152
|
|
Vessels and equipment, net*
|
|
311,751
|
|
|
333,152
|
|
Other assets
|
|
17,043
|
|
|
13,545
|
|
Total assets
|
|
353,858
|
|
|
374,030
|
|
|
|
|
|
|
||
LIABILITIES AND EQUITY
|
|
|
|
|
||
Accrued liabilities
|
|
9,247
|
|
|
6,307
|
|
Current portion of long-term debt
|
|
14,300
|
|
|
14,300
|
|
Amounts due to related parties
|
|
172,979
|
|
|
188,323
|
|
Long-term debt
|
|
97,800
|
|
|
112,100
|
|
Other liabilities
|
|
158
|
|
|
8,693
|
|
Total liabilities
|
|
294,484
|
|
|
329,723
|
|
Total equity
|
|
59,374
|
|
|
44,307
|
|
Total liabilities and equity
|
|
353,858
|
|
|
374,030
|
|
•
|
Modify the evaluation of whether limited partnerships and similar legal entities are variable interest entities (VIEs) or voting interest entities;
|
•
|
Eliminate the presumption that a general partner should consolidate a limited partnership;
|
•
|
Affect the consolidation analysis of reporting entities that are involved with VIEs, particularly those that have fee arrangements and related party relationships; and
|
•
|
Provide a scope exception from consolidation guidance for reporting entities with interest in legal entities that are required to comply with or operate in accordance with requirements that are similar to those in Rule 2a-7 of the Investment Company Act of 1940 for registered money market funds.
|
(in thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
||||||||||||
Petrobras
|
|
100,052
|
|
|
23
|
%
|
|
99,976
|
|
|
25
|
%
|
|
85,899
|
|
|
26
|
%
|
PTNR
|
|
67,325
|
|
|
15
|
%
|
|
66,345
|
|
|
17
|
%
|
|
65,478
|
|
|
20
|
%
|
KNPC
|
|
47,402
|
|
|
11
|
%
|
|
43,220
|
|
|
11
|
%
|
|
—
|
|
|
—
|
%
|
DUSUP
|
|
41,970
|
|
|
10
|
%
|
|
48,392
|
|
|
12
|
%
|
|
48,029
|
|
|
15
|
%
|
Pertamina
|
|
38,061
|
|
|
9
|
%
|
|
40,004
|
|
|
10
|
%
|
|
37,302
|
|
|
11
|
%
|
BG Group plc
|
|
31,370
|
|
|
7
|
%
|
|
68,884
|
|
|
17
|
%
|
|
66,341
|
|
|
20
|
%
|
Revenues (in thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
|||
|
|
|
|
|
|
|
|||
Brazil
|
|
100,052
|
|
|
99,976
|
|
|
85,899
|
|
Indonesia
|
|
67,325
|
|
|
66,345
|
|
|
65,478
|
|
Kuwait
|
|
47,402
|
|
|
43,220
|
|
|
—
|
|
United Arab Emirates
|
|
41,970
|
|
|
48,392
|
|
|
48,029
|
|
Fixed assets (in thousands of $)
|
|
2015
|
|
2014
|
||
|
|
|
|
|
||
Brazil
|
|
369,922
|
|
|
392,132
|
|
Jordan
|
|
286,974
|
|
|
—
|
|
Kuwait
|
|
275,684
|
|
|
281,946
|
|
Indonesia
|
|
205,188
|
|
|
219,610
|
|
United Arab Emirates
|
|
133,883
|
|
|
133,082
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
|||
Amortization of deferred financing costs
|
|
(6,308
|
)
|
|
(3,554
|
)
|
|
(5,828
|
)
|
Financing arrangement fees
|
|
(1,694
|
)
|
|
(147
|
)
|
|
(2,101
|
)
|
Interest expense on un-designated interest rate swaps
|
|
(14,385
|
)
|
|
(12,163
|
)
|
|
(8,188
|
)
|
Mark-to-market adjustment for interest rate swap derivatives (see note 25)
|
|
655
|
|
|
(5,953
|
)
|
|
12,845
|
|
Mark-to-market adjustment for currency swap derivatives (see note 25)
|
|
16
|
|
|
—
|
|
|
(4,839
|
)
|
Foreign exchange gain on capital lease obligations and related restricted cash
|
|
492
|
|
|
677
|
|
|
7,084
|
|
Foreign exchange loss on operations
|
|
(2,235
|
)
|
|
(978
|
)
|
|
(634
|
)
|
Total
|
|
(23,459
|
)
|
|
(22,118
|
)
|
|
(1,661
|
)
|
(in thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
|||
Current tax expense (credit):
|
|
|
|
|
|
|
|
|
|
United Kingdom
|
|
(1,098
|
)
|
|
852
|
|
|
(373
|
)
|
Indonesia
|
|
3,641
|
|
|
544
|
|
|
5,047
|
|
Brazil
|
|
716
|
|
|
1,136
|
|
|
779
|
|
Kuwait
|
|
2,133
|
|
|
1,945
|
|
|
—
|
|
Total current tax expense
|
|
5,392
|
|
|
4,477
|
|
|
5,453
|
|
Deferred tax (income) expense:
|
|
|
|
|
|
|
|
|
|
Indonesia
|
|
(869
|
)
|
|
(9,524
|
)
|
|
|
|
Jordan
|
|
1,146
|
|
|
—
|
|
|
—
|
|
Total income tax expense (credit)
|
|
5,669
|
|
|
(5,047
|
)
|
|
5,453
|
|
|
|
Year ended December 31,
|
|||||||
(In thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
|||
Income taxes at statutory rate
|
|
—
|
|
|
—
|
|
|
—
|
|
Effect of change on uncertain tax positions relating to prior year
|
|
(1,894
|
)
|
|
(5,042
|
)
|
|
—
|
|
Effect of recognition of deferred tax asset
|
|
(4,945
|
)
|
|
(9,524
|
)
|
|
—
|
|
Effect of taxable income in various countries
|
|
12,508
|
|
|
9,519
|
|
|
5,453
|
|
Total tax expense (credit)
|
|
5,669
|
|
|
(5,047
|
)
|
|
5,453
|
|
Jurisdiction
|
|
Earliest
|
UK
|
|
2012
|
Brazil
|
|
2010
|
Indonesia
|
|
2012
|
Kuwait
|
|
2015
|
Jordan
|
|
2015
|
(in thousands of $)
|
2015
|
2014
|
||
Short-term deferred tax asset
|
—
|
|
3,085
|
|
Long-term deferred tax asset
|
10,393
|
|
6,439
|
|
Deferred tax asset
|
10,393
|
|
9,524
|
|
(in thousands of $)
|
2015
|
2014
|
||
Long-term deferred tax asset
|
956
|
|
—
|
|
Long-term deferred tax liability
|
(2,102
|
)
|
—
|
|
Net deferred tax liability
|
(1,146
|
)
|
—
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
|||
Balance at January 1
|
|
9,524
|
|
|
—
|
|
|
—
|
|
Recognition of deferred tax assets on previously unrecognized losses
|
|
4,945
|
|
|
13,920
|
|
|
6,070
|
|
Utilization of tax losses
|
|
(4,076
|
)
|
|
(4,396
|
)
|
|
—
|
|
Movement in valuation allowance
|
|
—
|
|
|
—
|
|
|
(6,070
|
)
|
Balance at December 31
|
|
10,393
|
|
|
9,524
|
|
|
—
|
|
(in thousands of $)
|
|
2015
|
|
Balance at January 1
|
|
—
|
|
Origination of deferred tax asset on tax losses
|
|
956
|
|
Origination of deferred liability on fixed asset temporary differences
|
|
(2,102
|
)
|
Balance at December 31
|
|
(1,146
|
)
|
(in thousands of $)
|
|
Amount
|
|
Date of expiry
|
|
Net operating losses in 2013 (
NR Satu
)
|
|
41,572
|
|
|
2018
|
Net operating losses in 2015 (
Golar Eskimo
)
|
|
19,124
|
|
|
2020
|
Year ending December 31,
(in thousands of $)
|
|
Total
|
|
|
2016
|
|
438,377
|
|
|
2017
|
|
438,044
|
|
|
2018
|
|
319,264
|
|
|
2019
|
|
253,705
|
|
|
2020
|
|
225,372
|
|
|
2021 and thereafter
|
|
682,807
|
|
|
Total
|
|
2,357,569
|
|
(1)
|
|
Golar Eskimo
|
|
|
Golar Igloo
|
|
|
Golar Maria
|
|
(in thousands of $)
|
January 20, 2015
|
|
|
March 28, 2014
|
|
|
February 7, 2013
|
|
Purchase consideration
(1)
|
226,010
|
|
|
156,001
|
|
|
127,910
|
|
Less: Fair value of net assets (liabilities) acquired:
|
|
|
|
|
|
|||
Vessel and equipment
|
292,872
|
|
|
287,542
|
|
|
215,000
|
|
Intangible asset
|
95,520
|
|
|
19,099
|
|
|
—
|
|
Cash
|
298
|
|
|
682
|
|
|
7,981
|
|
Fair value of interest rate swap
|
—
|
|
|
3,636
|
|
|
(3,096
|
)
|
Other assets and liabilities
|
150
|
|
|
6,312
|
|
|
(2,450
|
)
|
Long-term debt
|
(162,830
|
)
|
|
(161,270
|
)
|
|
(89,525
|
)
|
Subtotal
|
(226,010
|
)
|
|
(156,001
|
)
|
|
(127,910
|
)
|
Difference between the purchase price and fair value of net assets acquired
|
—
|
|
|
—
|
|
|
—
|
|
(in thousands of $)
|
Golar Eskimo
|
|
|
Golar Igloo
|
|
|
Golar Maria
|
|
Loan from Golar
|
220,000
|
|
|
—
|
|
|
—
|
|
Cash consideration paid to Golar
|
7,170
|
|
|
148,730
|
|
|
125,500
|
|
Adjustment for the interest rate swap asset assumed
|
—
|
|
|
3,636
|
|
|
(3,096
|
)
|
Purchase price adjustments
|
(1,160
|
)
|
|
3,635
|
|
|
5,506
|
|
|
226,010
|
|
|
156,001
|
|
|
127,910
|
|
|
Unaudited
|
|
(in thousands of $, except per unit data)
|
2015
|
|
Revenues
|
435,573
|
|
Net income
|
163,022
|
|
Earnings per unit (basic and diluted):
|
|
|
Common unitholders
|
$2.38
|
|
Unaudited
|
|
(in thousands of $, except per unit data)
|
2014
|
|
Revenues
|
400,209
|
|
Net income
|
184,751
|
|
Earnings per unit (basic and diluted):
|
|
|
Common unitholders
|
$2.56
|
|
Unaudited
|
|
(in thousands of $, except per unit data)
|
2013
|
|
Revenues
|
332,150
|
|
Net income
|
152,388
|
|
Earnings per unit (basic and diluted):
|
|
|
Common unitholders
|
$2.33
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Other receivables
|
|
2,716
|
|
|
2,174
|
|
Deferred tax asset (see note 9)
|
|
—
|
|
|
3,085
|
|
Prepaid expenses
|
|
2,444
|
|
|
2,257
|
|
|
|
5,160
|
|
|
7,516
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Cost
|
|
2,263,166
|
|
|
1,952,390
|
|
Accumulated depreciation
|
|
(532,518
|
)
|
|
(451,220
|
)
|
Net book value
|
|
1,730,648
|
|
|
1,501,170
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Cost
|
|
168,577
|
|
|
168,577
|
|
Accumulated depreciation and amortization
|
|
(51,850
|
)
|
|
(46,324
|
)
|
Net book value
|
|
116,727
|
|
|
122,253
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Cost
|
|
114,616
|
|
|
19,096
|
|
Accumulated amortization
|
|
(15,520
|
)
|
|
(3,064
|
)
|
Net book value
|
|
99,096
|
|
|
16,032
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Debt arrangement fees and other deferred financing charges
|
|
27,596
|
|
|
23,384
|
|
Accumulated amortization
|
|
(13,920
|
)
|
|
(10,028
|
)
|
|
|
13,676
|
|
|
13,356
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Methane Princess lease security deposits
|
|
134,477
|
|
|
142,513
|
|
Restricted cash relating to the cross currency interest rate swap (see note 25)
|
|
36,798
|
|
|
9,710
|
|
Restricted cash relating to the NR Satu facility (see note 22)
|
|
10,281
|
|
|
10,152
|
|
Restricted cash held by Eskimo SPV (see note 5)
|
|
4,031
|
|
|
—
|
|
Restricted cash relating to performance guarantees
|
|
7,686
|
|
|
—
|
|
Restricted cash relating to the Golar Freeze facility (see note 22)
|
|
—
|
|
|
10,008
|
|
Total restricted cash
|
|
193,273
|
|
|
172,383
|
|
Less: current portion of restricted cash
|
|
(56,714
|
)
|
|
(25,831
|
)
|
Long-term restricted cash
|
|
136,559
|
|
|
146,552
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Mark-to-market interest rate swaps valuation (see note 25)
|
|
1,881
|
|
|
3,617
|
|
Deferred tax asset (see notes 9)
|
|
10,393
|
|
|
6,439
|
|
Other long-term assets
|
|
4,479
|
|
|
5,227
|
|
|
|
16,753
|
|
|
15,283
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Vessel operating and drydocking expenses
|
|
4,517
|
|
|
5,762
|
|
Administrative expenses
|
|
599
|
|
|
967
|
|
Interest expense
|
|
9,553
|
|
|
7,043
|
|
Provision for tax
|
|
6,561
|
|
|
7,928
|
|
|
|
21,230
|
|
|
21,700
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Deferred revenue
|
|
12,645
|
|
|
20,594
|
|
Mark-to-market interest rate swaps valuation (see note 25)
|
|
15,540
|
|
|
15,222
|
|
Mark-to-market cross currency interest rate swaps valuation (see note 25)
|
|
89,015
|
|
|
56,639
|
|
Mark-to-market foreign exchange rate swaps valuation (see note 25)
|
|
—
|
|
|
16
|
|
Deferred credits from capital lease transactions (see note 24)
|
|
625
|
|
|
625
|
|
Other creditors
|
|
1,259
|
|
|
6,385
|
|
|
|
119,084
|
|
|
99,481
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Total debt
|
|
1,344,788
|
|
|
1,052,532
|
|
Less: Short-term debt due to related parties
|
|
—
|
|
|
(20,000
|
)
|
Less: Current portion of long-term debt due to third parties
|
|
(121,739
|
)
|
|
(124,221
|
)
|
Long-term debt
|
|
1,223,049
|
|
|
908,311
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
|
Maturity date
|
||
Maria and Freeze Facility
|
|
174,000
|
|
|
—
|
|
|
2018
|
High-Yield Bonds
|
|
147,007
|
|
|
174,450
|
|
|
2017
|
2015 Norwegian Bonds
|
|
150,000
|
|
|
—
|
|
|
2020
|
Golar LNG Partners Credit Facility
|
|
181,500
|
|
|
203,500
|
|
|
2018
|
Golar Partners Operating Credit Facility
|
|
185,000
|
|
|
235,000
|
|
|
2018
|
NR Satu Facility
|
|
112,100
|
|
|
126,400
|
|
|
2020
|
Golar Igloo Debt
|
|
141,111
|
|
|
154,550
|
|
|
2019/2026*
|
Eskimo SPV Debt
|
|
254,070
|
|
|
—
|
|
|
2025**
|
Golar LNG Revolving Credit Facility (see note 26 (j))
|
|
—
|
|
|
20,000
|
|
|
2015
|
Golar Maria Facility
|
|
—
|
|
|
79,525
|
|
|
2018***
|
Golar Freeze Facility
|
|
—
|
|
|
59,107
|
|
|
2018***
|
|
|
1,344,788
|
|
|
1,052,532
|
|
|
|
Tranche
|
Proportion of debt
|
Term of loan
|
Repayment terms
|
Margin on LIBOR
|
K-Sure
|
40%
|
12 years
|
Semi-annual installments
|
2.10%
|
KEXIM
|
40%
|
12 years
|
Semi-annual installments
|
2.75%
|
Commercial
|
20%
|
5 years
|
Semi-annual installments, unpaid balance to be refinanced after 5 years
|
2.75%
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Total obligations under capital lease
|
|
143,112
|
|
|
150,997
|
|
Year ending December 31,
(in thousands of $)
|
|
Methane
Princess Lease
|
|
2016
|
|
7,442
|
|
2017
|
|
7,723
|
|
2018
|
|
8,030
|
|
2019
|
|
8,338
|
|
2020
|
|
8,650
|
|
2021 and thereafter
|
|
192,476
|
|
Total minimum lease payments
|
|
232,659
|
|
Less: Imputed interest
|
|
(89,547
|
)
|
Present value of minimum lease payments
|
|
143,112
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Deferred credits from capital lease transactions
|
|
16,650
|
|
|
17,281
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Deferred credits from capital lease transactions
|
|
24,691
|
|
|
24,691
|
|
Less: Accumulated amortization
|
|
(7,416
|
)
|
|
(6,785
|
)
|
|
|
17,275
|
|
|
17,906
|
|
Short-term (see note 21)
|
|
625
|
|
|
625
|
|
Long-term
|
|
16,650
|
|
|
17,281
|
|
|
|
17,275
|
|
|
17,906
|
|
Instrument
(in thousands of $)
|
|
Year End
|
|
Notional Amount
|
|
Maturity
Dates
|
|
Fixed Interest
Rate
|
||||||
Interest rate swaps:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Receiving floating, pay fixed
|
|
December 31, 2015
|
|
863,184
|
|
|
2018
|
to
|
2022
|
|
1.07
|
%
|
to
|
2.96%
|
Receiving floating, pay fixed
|
|
December 31, 2014
|
|
919,130
|
|
|
2015
|
to
|
2020
|
|
0.92
|
%
|
to
|
2.96%
|
Derivatives designated as
hedging instruments
|
|
|
|
Effective
portion gain/(loss)
reclassified from
Accumulated Other
Comprehensive Loss
|
|
Ineffective Portion
|
||||||||||||||
(in thousands of $)
|
|
Location
|
|
2015
|
|
2014
|
|
2013
|
|
2015
|
|
2014
|
|
2013
|
||||||
Interest rate swaps
|
|
Other financial items, net
|
|
(2,532
|
)
|
|
(1,339
|
)
|
|
775
|
|
|
411
|
|
|
(1,210
|
)
|
|
1,015
|
|
Derivatives designated as hedging instruments
|
|
Amount of gain/
(loss) recognized in
OCI on derivative
(effective portion)
|
|||||||
(in thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
|||
Interest rate swaps
|
|
(174
|
)
|
|
492
|
|
|
5,515
|
|
|
|
Notional Amount
|
|
|
|
Average forward
|
|||||
Instrument
(in thousands)
|
|
Receiving in
foreign currency
|
|
Pay in USD
|
|
Maturity
Date
|
|
rate USD foreign
currency
|
|||
Currency rate swaps:
|
|
|
|
|
|
|
|
|
|
|
|
Singapore dollars
|
|
563
|
|
|
441
|
|
|
2015
|
|
1.276
|
|
|
|
Interest rate element
|
|
Currency element
|
|||||||||||||
|
|
|
|
|
|
Notional Amount
|
|
|
|
Average forward
rate USD foreign
currency
|
|||||||
Instrument
(in thousands)
|
|
Notional Amount
|
|
Fixed Interest Rate
|
|
Receiving in
Norwegian Kroner
|
|
Pay in USD
|
|
Maturity
Date
|
|
||||||
Cross currency interest rate swap
|
|
227,193
|
|
|
6.485
|
%
|
|
1,300,000
|
|
|
227,193
|
|
|
2017
|
|
5.722
|
|
Derivatives designated as hedging instruments
|
|
Amount of gain/
(loss) recognized in
OCI on derivative
(effective portion)
|
|||||||
(in thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
|||
Cross currency interest rate swap
|
|
(4,933
|
)
|
|
(184
|
)
|
|
1,080
|
|
(in thousands of $)
|
|
Fair Value
Hierarchy(1)
|
|
2015 Carrying Value
|
|
2015 Fair Value
|
|
2014 Carrying Value
|
|
2014 Fair Value
|
||||
Non-Derivatives:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
Level 1
|
|
40,686
|
|
|
40,686
|
|
|
98,998
|
|
|
98,998
|
|
Restricted cash
|
|
Level 1
|
|
193,273
|
|
|
193,273
|
|
|
172,383
|
|
|
172,383
|
|
Short-term debt due to related party
|
|
Level 3
|
|
—
|
|
|
—
|
|
|
20,000
|
|
|
20,000
|
|
High-Yield and 2015 Norwegian Bonds
(1)
|
|
Level 1
|
|
297,007
|
|
|
298,845
|
|
|
174,450
|
|
|
173,578
|
|
Short-term and long-term debt—floating
(2)
|
|
Level 2
|
|
1,047,781
|
|
|
1,047,781
|
|
|
858,082
|
|
|
858,082
|
|
Obligations under capital leases
(2)
|
|
Level 2
|
|
143,112
|
|
|
143,112
|
|
|
150,997
|
|
|
150,997
|
|
Derivatives:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate swaps asset
(3)(4)
|
|
Level 2
|
|
1,881
|
|
|
1,881
|
|
|
3,617
|
|
|
3,617
|
|
Interest rate swaps liability
(3)(4)
|
|
Level 2
|
|
15,540
|
|
|
15,540
|
|
|
15,222
|
|
|
15,222
|
|
Cross currency interest rate swap liability
(3)(5)
|
|
Level 2
|
|
89,015
|
|
|
89,015
|
|
|
56,639
|
|
|
56,639
|
|
Foreign currency swaps liability
(3)
|
|
Level 2
|
|
—
|
|
|
—
|
|
|
16
|
|
|
16
|
|
(1)
|
This pertains to bonds with a carrying value of
$297.0 million
as of
December 31, 2015
which is included under long-term debt on the balance sheet. The fair value of the bonds as of
December 31, 2015
was
$298.8 million
(2014:
$173.6 million
), which represents
100.6%
(2014:
99.5%
) of their face value.
|
(2)
|
Our debt and capital lease obligations are recorded at amortized cost in the consolidated balance sheets.
|
(3)
|
Derivative liabilities are captured within other current liabilities and derivative assets are captured within long-term assets on the balance sheet.
|
(4)
|
The fair value/carrying value of interest rate swap agreements (excluding the cross currency interest rate swap described in footnote 5) that qualify and are designated as cash flow hedges as of
December 31, 2015
and
2014
was
$1.6 million
(with a notional amount of
$142.5 million
) and
$2.0 million
(with a notional amount of
$211.6 million
), respectively. The expected maturity of these interest rate agreements is from
May 2015
to
March 2018
.
|
(5)
|
We issued NOK denominated senior unsecured bonds. In order to hedge our exposure, we entered into a non-amortizing cross currency interest rate swap agreement. The swap hedges both the full redemption amount of the NOK obligation and the related quarterly interest payments. We designated the cross currency interest rate swap as a cash flow hedge.
|
|
|
December 31, 2015
|
|
December 31, 2014
|
||||||||||||||
(in thousands of $)
|
|
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
|
||||||
Total asset derivatives
|
|
1,881
|
|
|
(1,881
|
)
|
|
—
|
|
|
3,617
|
|
|
(1,831
|
)
|
|
1,786
|
|
Total liability derivatives
|
|
15,540
|
|
|
(1,881
|
)
|
|
13,659
|
|
|
15,222
|
|
|
(1,831
|
)
|
|
13,391
|
|
(in thousands of $)
|
|
2015
|
|
2014
|
|
2013
|
|||
Transactions with Golar and subsidiaries:
|
|
|
|
|
|
|
|
|
|
Time charter revenues (a)
|
|
41,555
|
|
|
—
|
|
|
—
|
|
Management and administrative services fees (b)
|
|
(2,949
|
)
|
|
(2,877
|
)
|
|
(2,569
|
)
|
Ship management fees (c)
|
|
(7,577
|
)
|
|
(7,746
|
)
|
|
(6,701
|
)
|
Interest expense on High-Yield Bonds (d)
|
|
—
|
|
|
—
|
|
|
(1,972
|
)
|
Interest expense on the Golar Eskimo Vendor Loan (e)
|
|
(4,217
|
)
|
|
—
|
|
|
—
|
|
Interest income on short-term loan (f)
|
|
203
|
|
|
—
|
|
|
—
|
|
Share options expense (g)
|
|
(297
|
)
|
|
—
|
|
|
—
|
|
Total
|
|
26,718
|
|
|
(10,623
|
)
|
|
(11,242
|
)
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Trading balances due to Golar and subsidiaries (f)
|
|
4,400
|
|
|
(13,337
|
)
|
Methane Princess Lease security deposit movements (h)
|
|
2,728
|
|
|
3,486
|
|
Short-term loan due to Golar (i)
|
|
—
|
|
|
(20,000
|
)
|
|
|
7,128
|
|
|
(29,851
|
)
|
(in thousands of $)
|
|
2015
|
|
2014
|
||
Carrying value of vessels and equipment secured against long-term loans and capital leases
|
|
1,847,403
|
|
|
1,623,423
|
|
Date
|
|
Number of Common Units Issued
1
|
|
Offering Price
|
|
Gross Proceeds (in thousands of $)
2
|
|
Net Proceeds (in thousands of $)
|
|
Golar’s Ownership after the Offering
3
|
|
Use of Proceeds
|
||||||
January 2013
|
|
4,316,947
|
|
|
$
|
29.74
|
|
|
131,006
|
|
|
130,244
|
|
|
50.9
|
%
|
|
Acquisition of the
Golar Maria
|
December 2013
|
|
5,100,000
|
|
|
$
|
29.10
|
|
|
151,439
|
|
|
150,342
|
|
|
41.4
|
%
|
|
Acquisition of the
Golar Igloo
|
(in units)
|
|
Common Units
|
|
Subordinated Units
|
|
GP Units
|
|||
December 31, 2012
|
|
36,246,149
|
|
|
15,949,831
|
|
|
1,065,225
|
|
January 2013 offerings
|
|
4,316,947
|
|
|
—
|
|
|
88,101
|
|
December 2013 offerings
|
|
5,100,000
|
|
|
—
|
|
|
104,082
|
|
December 31, 2013 and 2014
|
|
45,663,096
|
|
|
15,949,831
|
|
|
1,257,408
|
|
December 2015 common unit repurchase and cancellation program
|
|
(496,000
|
)
|
|
—
|
|
|
—
|
|
December 31, 2015
|
|
45,167,096
|
|
|
15,949,831
|
|
|
1,257,408
|
|
Month of repurchase
|
Total number of common units purchased
|
|
|
Average price paid per common unit
|
|
|
Total number of common units purchased as part of publicly announced plans or program
|
|
|
Maximum value of common units that may be purchased under the plans or program
|
|
||
December 2015
|
496,000
|
|
|
$
|
12.03
|
|
|
496,000
|
|
|
|
||
As of December 31, 2015
|
496,000
|
|
|
|
|
496,000
|
|
|
$
|
19,035,042
|
|
Month of repurchase
|
Total number of common units purchased
|
|
|
Average price paid per common unit
|
|
|
Total number of common units purchased as part of publicly announced plans or program
|
|
|
Maximum number of common units that may be purchased under the plans or program
|
|
||
August 2015
|
167,000
|
|
|
$
|
20.81
|
|
|
167,000
|
|
|
|
||
September 2015
|
73,000
|
|
|
$
|
20.91
|
|
|
73,000
|
|
|
|
||
As of December 31, 2015
|
240,000
|
|
|
|
|
240,000
|
|
|
$
|
19,980,755
|
|
(in thousands of $ except unit and per unit data)
|
|
2015
|
|
2014
|
|
2013
|
|||
Net income attributable to general partner and limited partner interests
|
|
162,136
|
|
|
174,154
|
|
|
141,296
|
|
Less: distributions paid (1)
|
|
(153,796
|
)
|
|
(143,450
|
)
|
|
(127,260
|
)
|
Under distributed earnings
|
|
8,340
|
|
|
30,704
|
|
|
14,036
|
|
Under distributed earnings attributable to:
|
|
|
|
|
|
|
|
|
|
Common unitholders
|
|
3,235
|
|
|
13,347
|
|
|
6,649
|
|
Weighted average units outstanding (basic and diluted) (in thousands):
|
|
|
|
|
|
|
|
|
|
Common units
|
|
45,654
|
|
|
45,663
|
|
|
40,417
|
|
Earnings per unit (basic and diluted):
|
|
|
|
|
|
|
|
|
|
Common unitholders
|
|
2.38
|
|
|
2.47
|
|
|
2.31
|
|
Cash distributions declared and paid in the period per unit (2):
|
|
2.30
|
|
|
2.14
|
|
|
2.05
|
|
Subsequent event
: Cash distributions declared and paid per unit relating to the period (3)
|
|
0.58
|
|
|
0.56
|
|
|
0.52
|
|
•
|
First,
98%
to the common unitholders, pro rata, and
2%
to the General Partner, until each common unit has received the minimum quarterly distribution for that quarter;
|
•
|
Second,
98%
to the common unitholders, pro rata, and
2%
to the General Partner, until each common unit has received an amount equal to any arrearages in payment of the minimum quarterly distribution on the common units for prior quarters during the subordination period; and
|
•
|
Third,
98%
to the subordinated unitholders, pro rata, and
2%
to the General Partner, until each subordinated unit has received the minimum quarterly distribution for that quarter.
|
•
|
we have distributed available cash from operating surplus to the common and subordinated unitholders in an amount equal to the minimum quarterly distribution; and
|
•
|
we have distributed available cash from operating surplus on outstanding common units in an amount necessary to eliminate any cumulative arrearages in payment of the minimum quarterly distribution;
|
•
|
first
,
98.0%
to all unitholders, pro rata, and
2.0%
to the General Partner, until each unit holder receives a total of
$0.4428
per unit for that quarter (the “first target distribution”);
|
•
|
second
,
85.0%
to all unitholders, pro rata,
2.0%
to the General Partner, and
13.0%
to the holders of the incentive distribution rights, pro rata, until each unit holder receives a total of
$0.4813
per unit for that quarter (the “second target distribution”);
|
•
|
third
,
75.0%
to all unitholders, pro rata,
2.0%
to the General Partner, and
23.0%
to the holders of the incentive distribution rights, pro rata, until each unit holder receives a total of
$0.5775
per unit for that quarter (the “third target distribution”); and
|
•
|
thereafter
,
50.0%
to all unitholders, pro rata,
2.0%
to the General Partner, and
48.0%
to the holders of the incentive distribution rights, pro rata.
|
•
|
first
,
98.0%
to all unitholders, pro rata, and
2.0%
to the General Partner, until each outstanding unit has received an amount equal to the minimum quarterly distribution for that quarter;
|
•
|
second
,
98.0%
to all unitholders, pro rata, and
2.0%
to the General Partner, until each outstanding unit receives a total of the first target distribution for that quarter;
|
•
|
third
,
85.0%
to all unitholders, pro rata,
2.0%
to the General Partner, and
13.0%
to the holders of the incentive distribution rights, pro rata, until each outstanding unit receives a total of the second target distribution for that quarter; and
|
•
|
fourth
,
75%
to all unitholders, pro rata,
2.0%
to the General Partner, and
23.0%
to the holders of the incentive distribution rights, pro rata, under each outstanding unit receives a total of the third target distribution for that quarter; and
|
•
|
thereafter
,
50.0%
to all unitholders, pro rata,
2.0%
to the General Partner, and
48.0%
to the holders of the incentive distribution rights, pro rata.
|
(1)
|
GOLAR PARTNERS OPERATING LLC
(the
Borrower
);
|
(2)
|
GOLAR LNG PARTNERS LP
(the
Parent
);
|
(3)
|
THE ENTITIES
listed in Schedule 1 as guarantors (the
Guarantors
);
|
(4)
|
CITIGROUP GLOBAL MARKETS LIMITED, DNB (UK) LIMITED
,
DANSKE BANK A/S
and
NORDEA BANK NORGE ASA
as mandated lead arrangers (whether acting individually or together the
Arrangers
);
|
(5)
|
THE FINANCIAL INSTITUTIONS
listed in Schedule 1 as lenders (the
Original Lenders
);
|
(6)
|
THE FINANCIAL INSTITUTIONS
listed in Schedule 1 as hedging providers (the
Hedging Providers
);
|
(7)
|
CITIGROUP GLOBAL MARKETS LIMITED
as global co-ordinator of the Finance Parties (the
Global Co-ordinator
);
|
(8)
|
CITIGROUP GLOBAL MARKETS LIMITED
,
DNB (UK) LIMITED
,
DANSKE BANK A/S
and
NORDEA BANK NORGE ASA
as bookrunners (the
Bookrunners
);
|
(9)
|
NORDEA BANK NORGE ASA
as agent of the other Finance Parties (the
Agent
);
|
(10)
|
NORDEA BANK NORGE ASA
as security agent of the Finance Parties (the
Security Agent
); and
|
(11)
|
CITIGROUP GLOBAL MARKETS LIMITED
as hedging co-ordinator of the other Hedging Providers (the
Hedging Co-ordinator
).
|
1
|
Definitions and interpretation
|
1.1
|
Definitions
|
(a)
|
in relation to a Ship which is subject to a Bareboat Charter and a Time Charter (other than Ship G), a first assignment deed in respect of that Ship executed or (as the context may require) to be executed by the Owner and the Bareboat Charterer in favour of the Security Agent in the agreed form pursuant to which:
|
(i)
|
the Owner and the Bareboat Charterer assign their respective rights in the Earnings, the Insurances and the Requisition Compensation of that Ship;
|
(ii)
|
the Owner assigns its interest in the Bareboat Charter in respect of that Ship and any other Charter Documents in respect of that Ship to which it is a party; and
|
(iii)
|
the Bareboat Charterer assigns its interest in the Time Charter in respect of that Ship and any other Charter Documents in respect of that Ship to which it is a party; and
|
(b)
|
in relation to a Ship which is subject to a Time Charter only, a first assignment deed in respect of that Ship executed or (as the context may require) to be executed by the Owner in favour of the Security Agent in the agreed form pursuant to which:
|
(i)
|
the Owner assigns its rights in the Earnings, the Insurances and the Requisition Compensation of that Ship; and
|
(ii)
|
the Owner assigns its interest in the Time Charter in respect of that Ship and any other Charter Documents in respect of that Ship to which it is a party; and
|
(c)
|
in relation to Ship G, a first assignment deed in respect of that Ship executed or (as the context may require) to be executed by the Owner and the Bareboat Charterer in favour of the Security Agent in the agreed form pursuant to which:
|
(i)
|
the Owner and the Bareboat Charterer assign their rights in the Earnings, the Insurances and the Requisition Compensation of that Ship; and
|
(ii)
|
the Bareboat Charterer assigns its interest in the Time Charter in respect of that Ship and any other Charter Documents in respect of that Ship to which it is a party; and
|
(iii)
|
the Owner assigns its right, title and interest in, to and under the Lease Agreement, the Proceeds Account Charge and the Mortgage in respect of that Ship.
|
(a)
|
any law or regulation in force as at the date hereof implementing the Basel II Accord, (including the relevant provisions of CRD IV and CRR) to the extent only that such law or regulation re-enacts and/or implements the requirements of the Basel II Accord but excluding any provision of such law or regulation implementing the Basel III Accord; and;
|
(b)
|
any Basel II Approach adopted by a Finance Party or any of its Affiliates.
|
(a)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
(b)
|
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(c)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
|
(a)
|
the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
(b)
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a)
|
two or more persons acting in concert or any individual person (i) acquire, legally and/or beneficially and either directly or indirectly, in excess of 35 per cent of the issued share capital (or equivalent) of GLNG or (ii) exercise the right or ability to control, either directly or indirectly, the affairs or the composition of the majority of the board of directors (or equivalent) of GLNG;
|
(b)
|
two or more persons acting in concert or any individual person (other than GLNG) (i) acquires, legally and/or beneficially and either directly or indirectly, in excess of 50 per cent of the issued share capital (or equivalent) of the Parent or (ii) exercise the right or ability to control, either directly or indirectly, the affairs of the Parent or the composition of the majority of the board of directors (or equivalent) of the Parent;
|
(c)
|
the Borrower is not or ceases to be a wholly owned Subsidiary of the Parent;
|
(d)
|
the General Partner is not or ceases to be a wholly owned Subsidiary of GLNG;
|
(e)
|
the General Partner ceases to have veto rights over major transactions of the Parent such as mergers and major disposals of assets; or
|
(f)
|
the General Partner ceases to be the general partner of the Parent.
|
(a)
|
which has failed to make its participation in a Loan available or has notified the Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with clause 5.4 (
Lenders' participation
);
|
(b)
|
which has otherwise rescinded or repudiated a Finance Document; or
|
(c)
|
with respect to which an Insolvency Event has occurred and is continuing,
|
(iv)
|
its failure to pay is caused by:
|
(A)
|
administrative or technical error; or
|
(B)
|
a Payment Disruption Event; and
|
(v)
|
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(a)
|
enforcement, clean-up, removal or other governmental or regulatory action or orders or claims instituted or made pursuant to any Environmental Laws or resulting from a Spill; or
|
(b)
|
any claim made by any other person relating to a Spill.
|
(a)
|
any Fleet Vessel or its owner, operator or manager may be liable for Environmental Claims arising from the Spill (other than Environmental Claims arising and fully satisfied before the date of this Agreement); and/or
|
(b)
|
any Fleet Vessel may be arrested or attached in connection with any such Environmental Claim.
|
(a)
|
the $285,000,000 term loan and revolving credit facility made available by certain banks and financial institutions to the Parent to, among other things, refinance or, as the case may be, provide for certain capital and operational expenditure requirements in relation to Ship E and Ship G and to finance the Parent's working capital requirements, pursuant to a facility agreement dated 29 September 2008 (as supplemented, amended and/or restated from time to time);
|
(b)
|
the $275,000,000 term loan and revolving credit facility made available by certain banks and financial institutions to the Borrower to initially refinance all amounts owing under the previously existing financial indebtedness and to subsequently be used for general corporate purposes in respect of Ship B and Ship F, pursuant to a facilities agreement dated 25 June 2013 (as supplemented, amended and/or restated from time to time);
|
(c)
|
the $180,000,000 (increased from $125,000,000) term loan and revolving credit facility made available by certain banks and financial institutions to Golar Freeze Holding Co. and Golar LNG 2234 LLC as borrowers, to refinance Ship A and Ship D and for the general corporate purposes of the borrowers, pursuant to a facility agreement dated 17 June 2010 (as supplemented, amended and/or restated from time to time); and
|
(d)
|
the outstanding principal amount attributable to Ship C under the $1,125,000,000 term loan made available by certain banks and financial institutions to, among others, Golar Hull M2031 Corp., to finance the delivery of, among others, Ship C, pursuant to a facilities agreement dated 23 July 2013 (as supplemented, amended and/or restated from time to time).
|
(a)
|
in respect of a Lender, the office or offices notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days' written notice) as the office through which it will perform its obligations under this Agreement; and
|
(b)
|
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations;
|
(b)
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,
|
(a)
|
moneys borrowed and debit balances at banks or other financial institutions;
|
(b)
|
any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);
|
(c)
|
any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(d)
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease;
|
(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(f)
|
any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);
|
(g)
|
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;
|
(h)
|
any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the Final Repayment Date or are otherwise classified as borrowings under GAAP);
|
(i)
|
any amount of any liability under an advance or deferred purchase agreement if (a) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (b) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date of supply;
|
(j)
|
any amount raised under any other transaction (including any forward sale or purchase, sale and sale back, sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under GAAP; and
|
(k)
|
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.
|
(a)
|
in relation to all Hedging Contracts that have been closed out on or prior to the relevant date, that is due and owing by the Borrower to the Hedging Providers in respect of such Hedging Contracts on the relevant date; and
|
(b)
|
in relation to all Hedging Contracts that are continuing on the relevant date, that would be payable by the Borrower to the Hedging Providers under (and calculated in accordance with) the early termination provisions of the Hedging Contracts as if an Early Termination Date (as defined in the relevant Hedging Master Agreement) had occurred on the relevant date in relation to all such continuing Hedging Contracts.
|
(a)
|
each Finance Party and each Receiver and any attorney, agent or other person appointed by them under the Finance Documents;
|
(b)
|
each Affiliate of each Finance Party and each Receiver; and
|
(c)
|
any officers, employees or agents of each Finance Party and each Receiver.
|
(a)
|
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
(b)
|
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;
|
(c)
|
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
(d)
|
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, 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 by it or such regulator, supervisor or similar official;
|
(e)
|
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, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
|
(i)
|
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding up or liquidation; or
|
(ii)
|
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
|
(f)
|
has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;
|
(g)
|
has a resolution passed for its winding up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
(h)
|
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above;
|
(i)
|
has a secured party take possession of all or substantially all its assets or has a execution, attachment, sequestration or other enforcement action or legal process levied, enforced, taken or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
|
(j)
|
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or
|
(k)
|
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
(a)
|
all policies and contracts of insurance; and
|
(b)
|
all entries in a protection and indemnity or war risks or other mutual insurance association
|
(c)
|
in the name of such Ship's owner or the joint names of its owner and any other person in respect of or in connection with such Ship and/or its owner's Earnings from the Ship and includes all benefits thereof (including the right to receive claims and to return of premiums).
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the relevant Interest Period; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the relevant Interest Period,
|
(c)
|
each as of 11:00 am on the relevant Quotation Day.
|
(a)
|
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
(b)
|
the time barring of claims under the Limitation Act 1980 and the Foreign Limitation Periods Act 1984, the possibility that an undertaking to assume liability for, or indemnify a person against, non-payment of UK stamp duty may be void and defences of set-off or counterclaim; and
|
(c)
|
similar principles, rights and defences under the laws of any Relevant Jurisdiction.
|
(a)
|
any Original Lender; and
|
(b)
|
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with clause 32 (
Changes to the Lenders
),
|
(c)
|
which in each case has not ceased to be a Lender in accordance with the terms of this Agreement.
|
(a)
|
the applicable Screen Rate as of 11:00a.m. on the relevant Quotation Day for a period equal in length to the Interest Period of that Loan or Unpaid Sum; or
|
(b)
|
as otherwise determined pursuant to clause 10.1 (
Unavailability of Screen Rate
),
|
(c)
|
and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.
|
(a)
|
if no Loans are then outstanding, a Lender or Lenders whose Commitments aggregate more than 66 2/3 per cent of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66 2/3 per cent of the Total Commitments immediately prior to the reduction); or
|
(b)
|
at any other time, a Lender or Lenders whose participations in the Loans aggregate more than 66 2/3 per cent of the aggregate Loans.
|
(a)
|
a Total Loss of a Ship, the applicable Total Loss Repayment Date; or
|
(b)
|
a sale of a Ship by the relevant Owner or (subject to release of the applicable Share Security) the sale of all or part of an Owner or a Bareboat Charterer, the date upon which such sale is completed by the transfer of title to the purchaser in exchange for payment of all or part of the relevant purchase price.
|
(a)
|
the business, operations, property, condition (financial or otherwise) or prospects of the Group taken as a whole which will, or is reasonably likely to, affect the ability of an Obligor to perform its obligations under the Finance Documents; or
|
(b)
|
the ability of an Obligor to perform its obligations under the Finance Documents; or
|
(c)
|
the validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
|
(a)
|
the audited consolidated financial statements of the Group for its financial year ended 31 December 2014;
|
(b)
|
the unaudited financial statements of the Borrower for its financial year ended 31 December 2015; and
|
(c)
|
the unaudited consolidated financial statements of the Group for its financial quarter ended 31 December 2015.
|
(a)
|
the Mortgages over each of the Ships;
|
(b)
|
the Mortgage Transfer;
|
(c)
|
the Assignment Deeds in respect of the Ships;
|
(d)
|
the Share Security in relation to each Owner and Bareboat Charterer;
|
(e)
|
the Account Security;
|
(f)
|
any Hedging Contract Security;
|
(g)
|
any Manager's Undertaking in relation to a Ship if required under clause 22.3 (
Manager
) or 26.11 (
Bareboat Charterer's manager
);
|
(h)
|
the Quiet Enjoyment Letters;
|
(i)
|
the Proceeds Account Charge;
|
(j)
|
the Lessor Parent Support Letter;
|
(k)
|
the Proceeds Deed;
|
(l)
|
the Standby Purchaser Assignment; and
|
(m)
|
the Standby Purchaser Share Security.
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
(b)
|
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
|
(iii)
|
from performing its payment obligations under the Finance Documents; or
|
(iv)
|
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
(a)
|
any lien disclosed in writing to the Agent prior to the date of this Agreement and approved by the Agent;
|
(b)
|
unless a Default is continuing, any ship repairer's or outfitter's possessory lien in respect of the Ship for an amount not exceeding the Major Casualty Amount;
|
(c)
|
any lien on the Ship for master's, officer's or crew's wages outstanding in the ordinary course of its trading;
|
(d)
|
any lien on the Ship for salvage;
|
(e)
|
any other lien arising by operation of law in the ordinary course of trading (and not as a result of any default or omission by any Owner or Bareboat Charterer); and
|
(f)
|
in each case (other than (a) above) securing obligations not more than 30 days overdue.
|
(a)
|
granted by the Finance Documents; or
|
(b)
|
until the first Utilisation Date, granted in connection with the Financial Indebtedness secured by Security Interests over the Ships which is to be refinanced by the Facilities; or
|
(c)
|
permitted pursuant to the Finance Documents (including the Proceeds Deed) or the Co-ordination Agreements which as at the first Utilisation Date are those set out in Schedule 8 (
Permitted Security Interests
); or
|
(d)
|
a Permitted Maritime Lien; or
|
(e)
|
is approved by the Majority Lenders.
|
(a)
|
(other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank could borrow funds in the Interbank Market, in the relevant currency and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or
|
(b)
|
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.
|
(a)
|
its Original Jurisdiction;
|
(b)
|
any jurisdiction where any Charged Property owned by it is situated;
|
(c)
|
any jurisdiction where it conducts its business; and
|
(d)
|
any jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
|
(a)
|
the First Repayment Date;
|
(b)
|
each of the dates falling at three monthly intervals thereafter up to but not including the Final Repayment Date; and
|
(c)
|
the Final Repayment Date.
|
(a)
|
that is listed on any Sanctions List or any other sanctions-related list of persons, vessels or entities published by or on behalf of a Sanctions Authority (in each case, whether designated by name or by reason of being included in a class of persons, vessels or entities);
|
(b)
|
that is domiciled, registered as located or having its main place of business in, or is incorporated under the laws of, a country or territory which is, subject to comprehensive country-wide or territory-wide sanctions administered or enforced by a Sanctions Authority and which attach legal effect to being domiciled, registered as located in, having its main place of business in, and/or being incorporated under the laws of such country or territory; or
|
(c)
|
that is directly or indirectly owned or controlled by a person referred to in (a) and/or (b) above.
|
(a)
|
in relation to an Original Lender, the amount set opposite its name under the heading "Revolving Loan Commitment" in Schedule 1 (
The original parties
) and the amount of any other Revolving Loan Commitment assigned to it under this Agreement; and
|
(b)
|
in relation to any other Lender, the amount of any Revolving Loan Commitment assigned to it under this Agreement,
|
(c)
|
to the extent not cancelled, reduced or assigned by it under this Agreement.
|
(a)
|
on the first Utilisation Date, the lower of:
|
(iv)
|
$150,000,000 (as the same may be reduced in accordance with this Agreement); and
|
(v)
|
an amount equal to 13.125 per cent of the aggregate Vessel Value of the Ships; and
|
(b)
|
on each subsequent Utilisation Date, $150,000,000 (as the same may be reduced in accordance with this Agreement).
|
(a)
|
made or to be made on the same day that a maturing Revolving Loan is due to be repaid;
|
(b)
|
the aggregate amount of which is equal to or less than the maturing Revolving Loan; and
|
(c)
|
made or to be made for the purpose of refinancing a maturing Revolving Loan.
|
(a)
|
the Original Security Documents;
|
(b)
|
any other document as may be executed to guarantee and/or secure any amounts owing to the Finance Parties under this Agreement or any other Finance Document.
|
(a)
|
in relation to an Original Lender, the amount set opposite its name under the heading "Term Loan Commitment" in Schedule 1 (
The original parties
) and the amount of any other Term Loan Commitment assigned to it under this Agreement; and
|
(b)
|
in relation to any other Lender, the amount of any Term Loan Commitment assigned to it under this Agreement,
|
(c)
|
to the extent not cancelled, reduced or assigned by it under this Agreement.
|
(a)
|
actual, constructive, compromised or arranged total loss; or
|
(b)
|
requisition for title, confiscation or other compulsory acquisition by a government entity; or
|
(c)
|
hijacking, theft, condemnation, capture, seizure, arrest or detention for more than 30 days.
|
(a)
|
in the case of an actual total loss, the date it happened or, if such date is not known, the date on which the vessel was last reported;
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss, the earliest of:
|
(i)
|
the date notice of abandonment of the vessel is given to its insurers; or
|
(ii)
|
if the insurers do not admit such a claim, the date later determined by a competent court of law to have been the date on which the total loss happened; or
|
(iii)
|
the date upon which a binding agreement as to such compromised or arranged total loss has been entered into by the vessel's insurers;
|
(c)
|
in the case of a requisition for title, confiscation or compulsory acquisition, the date it happened; and
|
(d)
|
in the case of hijacking, theft, condemnation, capture, seizure, arrest or detention, the date 30 days after the date upon which it happened.
|
(a)
|
the date 180 days after its Total Loss Date; and
|
(b)
|
the date upon which insurance proceeds or Requisition Compensation for such Total Loss are paid by insurers or the relevant government entity.
|
(a)
|
the proposed Transfer Date specified in the Transfer Certificate; and
|
(b)
|
the date on which the Agent executes the Transfer Certificate.
|
(a)
|
all moneys duly received by the Security Agent under or in respect of the Finance Documents;
|
(b)
|
any portion of the balance on any Account held by or charged to the Security Agent at any time;
|
(c)
|
the Security Interests, guarantees, security, powers and rights given to the Security Agent under and pursuant to the Finance Documents including, without limitation, the covenants given to the Security Agent in respect of all obligations of any Obligor;
|
(d)
|
all assets paid or transferred to or vested in the Security Agent or its agent or received or recovered by the Security Agent or its agent in connection with any of the Finance Documents whether from any Obligor or any other person; and
|
(e)
|
all or any part of any rights, benefits, interests and other assets at any time representing or deriving from any of the above, including all income and other sums at any time received or receivable by the Security Agent or its agent in respect of the same (or any part thereof).
|
(a)
|
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
|
(b)
|
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
1.2
|
Construction
|
(a)
|
Sections, clauses and Schedules are to be construed as references to the Sections and clauses of, and the Schedules to, the relevant Finance Document and references to a Finance Document include its Schedules;
|
(b)
|
a
Finance Document
or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as it may from time to time be amended, restated, novated or replaced, however fundamentally;
|
(c)
|
words importing the plural shall include the singular and vice versa;
|
(d)
|
a time of day are to London time;
|
(e)
|
any person includes its successors in title, permitted assignees or transferees;
|
(f)
|
the knowledge, awareness and/or beliefs (and similar expressions) of any Obligor shall be construed so as to mean the knowledge, awareness and beliefs of the director and officers of such Obligor, having made due and careful enquiry;
|
(g)
|
agreed form
means:
|
(i)
|
where a Finance Document has already been executed by all of the relevant parties, such Finance Document in its executed form;
|
(ii)
|
prior to the execution of a Finance Document, the form of such Finance Document separately agreed in writing between the Agent and the Borrower as the form in which that Finance Document is to be executed or another form approved at the request of the Borrower or, if not so agreed or approved, is in the form specified by the Agent;
|
(h)
|
approved by the Majority Lenders
or
approved by the Lenders
means approved in writing by the Agent acting on the instructions of the Majority Lenders or, as the case may be, all of the Lenders (on such conditions as they may respectively impose) and otherwise
approved
means approved in writing by the Agent (on such conditions as the Agent may impose) and
approval
and
approve
shall be construed accordingly;
|
(i)
|
assets
includes present and future properties, revenues and rights of every description;
|
(j)
|
an
authorisation
means any authorisation, consent, concession, approval, resolution, licence, exemption, filing, notarisation or registration;
|
(k)
|
charter commitment
means, in relation to a vessel, any charter or contract for the use, employment or operation of that vessel or the carriage of people and/or cargo or the provision of services by or from it and includes any agreement for pooling or sharing income derived from any such charter or contract;
|
(l)
|
a Default or Event of Default being
continuing
means any Default or Event of Default which has not been waived in writing or, in the case of a Default, remedied;
|
(m)
|
control
of an entity means (except when used in the definition of Change of Control in clause 1.1 (
Definitions
)):
|
(i)
|
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
A)
|
cast, or control the casting of, more than 50 per cent of the maximum number of votes that might be cast at a general meeting of that entity; or
|
B)
|
appoint or remove all, or the majority, of the directors or other equivalent officers of that entity; or
|
C)
|
give directions with respect to the operating and financial policies of that entity with which the directors or other equivalent officers of that entity are obliged to comply; and/or
|
(ii)
|
the holding beneficially of more than 50 per cent of the issued share capital of that entity (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital) (and, for this purpose, any Security Interest over share capital shall be disregarded in determining the beneficial ownership of such share capital);
|
(n)
|
the term
disposal
or
dispose
means a sale, transfer or other disposal (including by way of lease or loan but not including by way of loan of money) by a person of all or part of its assets, whether by one transaction or a series of transactions and whether at the same time or over a period of time, but not the creation of a Security Interest;
|
(o)
|
$
,
USD
and
dollar
s denote the lawful currency of the United States of America;
|
(p)
|
the
equivalent
of an amount specified in a particular currency (the
specified currency amount
) shall be construed as a reference to the amount of the other relevant currency which can be purchased with the specified currency amount in the London foreign exchange market at or about 11 a.m. on the date the calculation falls to be made for spot delivery, as conclusively determined by the Agent (with the relevant exchange rate of any
such
purchase being the
Agent's spot rate of exchange
);
|
(q)
|
a
government entity
means any government, state or agency of a state;
|
(r)
|
a
group of Lenders
includes all the Lenders;
|
(s)
|
a
guarantee
means any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;
|
(t)
|
indebtedness
includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
(u)
|
month
means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:
|
(i)
|
if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that month (if there is one) or on the immediately preceding Business Day (if there is not); and
|
(ii)
|
if there is no numerically corresponding day in that month, that period shall end on the last Business Day in that month
|
(v)
|
Nordea Bank Norge ASA (NBN)
(either directly or indirectly in its capacity as Lender, Arranger, Bookrunner, Agent and/or Security Agent or any other capacity) or, as the case may be, Nordea Bank Finland plc (
NBF
) shall be automatically construed as a reference to Nordea Bank AB, (
NBAB
) in the event of any corporate reconstruction, merger, amalgamation, consolidation between NBN or, as the case may be, NBF and NBAB where NBAB is the surviving entity and acquires all the rights of, and assumes all the obligations of, NBN and nothing in the Finance Documents shall be construed so as to restrict, limit or impose any notification or other requirement or condition on either NBN or, as the case may be, NBF or NBAB in respect of the acquisition of rights to, or assumption of, obligations by NBAB hereunder pursuant to such merger;
|
(w)
|
an
obligation
means any duty, obligation or liability of any kind;
|
(x)
|
something being in the
ordinary course of business
of a person means something that is in the ordinary course of that person's current day-to-day operational business (and not merely anything which that person is entitled to do under its Constitutional Documents);
|
(y)
|
pay
or
repay
in clause 28 (
Business restrictions
) includes by way of set-off, combination of accounts or otherwise;
|
(z)
|
a
person
includes any individual, firm, company, corporation, government entity or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
|
(aa)
|
a
regulation
includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation and includes (without limitation) any Basel II Regulation or Basel III Regulation applicable to that Lender;
|
(bb)
|
right
means any right, privilege, power or remedy, any proprietary interest in any asset and any other interest or remedy of any kind, whether actual or contingent, present or future, arising under contract or law, or in equity;
|
(cc)
|
trustee
,
fiduciary
and
fiduciary duty
has in each case the meaning given to such term under applicable law;
|
(dd)
|
(i) the
liquidation
,
winding up
,
dissolution
, or
administration
of a person or (ii) a
receiver
or
administrative receiver
or
administrator
in the context of insolvency proceedings or security enforcement actions in respect of a person shall be construed so as to include any equivalent or analogous proceedings or any equivalent and analogous person or appointee (respectively) under the law of the jurisdiction in which such person is established or incorporated or any jurisdiction in which such person carries on business including (in respect of proceedings) the seeking or occurrences of liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors; and
|
(ee)
|
a provision of law is a reference to that provision as amended or re-enacted.
|
1.2.1
|
Where in this Agreement a provision includes a monetary reference level in one currency, unless a contrary indication appears, such reference level is intended to apply equally to its equivalent in other currencies as of the relevant time for the purposes of applying such reference level to any other currencies.
|
1.2.2
|
Section, clause and Schedule headings are for ease of reference only.
|
1.2.3
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
1.2.4
|
A Default (other than an Event of Default) is
continuing
if it has not been remedied or waived and an Event of Default is
continuing
if it has not been waived.
|
1.2.5
|
Unless a contrary indication appears, in the event of any inconsistency between the terms of this Agreement and the terms of any other Finance Document when dealing with the same or similar subject matter, the terms of this Agreement shall prevail.
|
1.3
|
Third party rights
|
1.3.1
|
Unless expressly provided to the contrary in a Finance Document for the benefit of a Finance Party or another Indemnified Person,
a person who is not a party to a Finance Document has no right under the Contracts (Rights of Third Parties) Act 1999 (the
Third Parties Act
) to enforce or enjoy the benefit of any term of the relevant Finance Document.
|
1.3.2
|
Any Finance Document may be rescinded or varied by the parties to it without the consent of any person who is not a party to it (unless otherwise provided by this Agreement).
|
1.3.3
|
An Indemnified Person who is not a party to a Finance Document may only enforce its rights under that Finance Document through a Finance Party and if and to the extent and in such manner as the Finance Party may determine.
|
1.4
|
Finance Documents
|
1.5
|
Conflict of documents
|
1
|
The Facilities
|
1.1
|
The Term Loan Facility
|
1.2
|
The Revolving Loan Facility
|
1.3
|
Finance Parties' rights and obligations
|
1.3.1
|
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
1.3.2
|
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
|
1.3.3
|
A Finance Party may, except as otherwise stated in the Finance Documents (including clauses 34.27 (
All enforcement action through the Security Agent
)) and 36.2 (
Finance Parties acting together
), separately enforce its rights under the Finance Documents.
|
2
|
Purpose
|
2.1
|
Purpose
|
2.2
|
Refinancing
|
2.3
|
Subsequent Loans
|
2.4
|
Monitoring
|
3
|
Conditions of Utilisation
|
3.1
|
Initial conditions precedent
|
3.2
|
Ship and security conditions precedent
|
3.3
|
Notice to Lenders
|
3.4
|
Further conditions precedent
|
(a)
|
in the case of a Rollover Loan, on the date of the Utilisation Request and on the proposed Utilisation Date, no Event of Default is continuing or would result from the proposed Utilisation;
|
(b)
|
in the case of any other Utilisation, on the date of the Utilisation Request and on the proposed Utilisation Date, no Default is continuing or would result from the proposed Utilisation;
|
(c)
|
on the date of the Utilisation Request and on the proposed Utilisation Date, the Repeating Representations are true and, in relation to the first Utilisation, all of the other representations set out in clause 18 (
Representations
) are true; and
|
(d)
|
where the proposed Utilisation Date is to be the first day of the Mortgage Period for a Ship, the Ship Representations for such Ship are true on the proposed Utilisation Date.
|
3.5
|
Maximum number of Loans
|
3.6
|
Waiver of conditions precedent
|
3.7
|
Conditions subsequent
|
(a)
|
the acknowledgments of the notices of assignment served on any charterers required under paragraph 2(d) of Part 2 of Schedule 3 (
Ship and security conditions precedent
) (there shall be no time limit for satisfaction of this condition subsequent so long as the Borrower and the relevant assignor exercise reasonable commercial efforts to obtain such acknowledgments); and
|
(b)
|
if Quiet Enjoyment Letters are required by the relevant Time Charterer pursuant to the terms of the relevant Time Charter, originals of the duly executed and dated Quiet Enjoyment Letters as soon as practicable after signing thereof by the relevant Time Charterer.
|
(c)
|
.
|
1
|
Utilisation
|
1.5
|
Delivery of a Utilisation Request
|
1.6
|
Completion of a Utilisation Request
|
1.6.1
|
A Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(a)
|
it identifies the Facility to be utilised;
|
(b)
|
in relation to a Utilisation of the Term Loan Facility, the proposed Utilisation Date is a Business Day falling on or before the Last Term Loan Availability Date;
|
(c)
|
in relation to a Utilisation of the Revolving Loan Facility, the proposed Utilisation Date is a Business Day falling on or before the Last Revolving Loan Availability Date;
|
(d)
|
in relation to a Utilisation of the Revolving Loan Facility, a Utilisation of the Term Loan Facility has been made or will be made before or simultaneously with such Utilisation;
|
(e)
|
the currency and amount of the Utilisation comply with clause 5.3 (
Currency and amount
);
|
(f)
|
the proposed Interest Period complies with clause 9 (
Interest Periods
); and
|
(g)
|
it identifies the purpose for the Utilisation and that purpose complies with clause 3 (
Purpose
)
.
|
1.6.2
|
Only one Loan may be requested in each Utilisation Request.
|
1.7
|
Currency and amount
|
1.7.1
|
The currency specified in a Utilisation Request must be dollars.
|
1.7.2
|
The amount of the proposed Term Loan must not exceed the Term Loan Facility Limit. The amount of a proposed Revolving Loan must be a minimum of $5,000,000 or, if less, the amount of the Available Revolving Loan Facility less the amount of the outstanding Revolving Loans. The aggregate amounts of the proposed Revolving Loans must not exceed the Revolving Loan Facility Limit. The aggregate amounts drawn under the Term Loan Facility and the Revolving Loan Facility on the first Utilisation Date must not exceed 70 per cent of the aggregate Vessel Value of the Ships.
|
1.7.3
|
Only one Utilisation may be made in respect of the Term Loan Facility.
|
1.8
|
Lenders' participation
|
1.8.2
|
If the conditions set out in this Agreement have been met and subject to clause 6
(Repayment)
, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
|
1.8.3
|
The amount of each Lender's participation in the Term Loan will be equal to the proportion borne by its undrawn Term Loan Commitment to the undrawn Total Term Loan Commitments immediately prior to making the Term Loan.
|
1.8.4
|
The amount of each Lender's participation in each Revolving Loan will be equal to the proportion borne by its undrawn Revolving Loan Commitment to the undrawn Total Revolving Loan Commitments immediately prior to making the Revolving Loan.
|
1.8.5
|
The Agent shall promptly notify each Lender of the amount of each Loan and the amount of its participation in the Loan and, if different, the amount of that participation to be made available in accordance with clause 38.1
(Payments to the Agent)
, in each case by 11:00 a.m. on the Quotation Day.
|
1.8.6
|
The Agent shall pay all amounts received by it in respect of each Loan (and its own participation in it, if any) to the Borrower or for its account in accordance with the instructions contained in the Utilisation Request.
|
1
|
Repayment
|
1.8
|
Repayment of Revolving Loan Facility and Term Loan Facility
|
1.8.1
|
The Borrower shall repay each Revolving Loan on the last day of its Interest Period.
|
1.8.2
|
Without prejudice to the Borrower's obligation under clause 6.1.1 above, if one or more Revolving Loans are to be made available to the Borrower on the same day that a maturing Revolving Loan is due to be repaid by the Borrower and the proportion borne by each Lender's participation in the maturing Revolving Loan to the amount of that maturing Revolving Loan is the same as the proportion borne by that Lender's participation in the new Revolving Loans to the aggregate amount of those new Revolving Loans, the aggregate amount of the new Revolving Loans shall be treated as if applied in or towards repayment of the maturing Revolving Loan so that:
|
(a)
|
if the amount of the maturing Revolving Loan exceeds the aggregate amount of the new Revolving Loans:
|
(i)
|
the Borrower will only be required to make a payment under clause 38.1
(Payments to the Agent)
in an amount equal to that excess; and
|
(ii)
|
each Lender's participation in the new Revolving Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Revolving Loan and that Lender will not be required to make a payment under clause 38.1
(Payments to the Agent)
in respect of its participation in the new Revolving Loans; and
|
(b)
|
if the amount of the maturing Revolving Loan is equal to or less than the aggregate amount of the new Revolving Loans:
|
(i)
|
the Borrower will not be required to make a payment under clause 38.1
(Payments to the Agent)
; and
|
(ii)
|
each Lender will be required to make a payment under clause 38.1
(Payments to the Agent)
in respect of its participation in the new Revolving Loans only to the extent that its participation in the new Revolving Loans exceeds that Lender's participation in the maturing Revolving Loans and the remainder of that Lender's participation in the new Revolving Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Revolving Loan.
|
1.8.3
|
The Borrower shall on each Repayment Date repay such part of the Term Loan as is required to be repaid by clause 6.2 (
Scheduled repayment of Term Loan Facility
).
|
1.8.4
|
On the Final Repayment Date
(without prejudice to any other provision of this Agreement), the Loans and all other amounts owing under this Agreement and any of the other Finance Documents shall be repaid in full.
|
1.9
|
Scheduled repayment of Term Loan Facility
|
Repayment Date
|
Amount $
|
First to Fifth
|
17,166,666.67
|
Sixth
|
17,166,666.65
|
Seventh to Nineteenth
|
13,000,000
|
Twentieth
|
378,000,000
|
TOTAL
|
650,000,000
|
1.10
|
Scheduled reduction of Revolving Loan Facility
|
(a)
|
on the earlier of (a) 18 months from the first Utilisation Date in respect of the Term Loan and (b) 30 September 2017 (the
First Reduction Date
), the Total Revolving Loan Commitments shall be reduced by $25,000,000; and
|
(b)
|
on the earlier of (a) 30 months from the first Utilisation Date in respect of the Term Loan and (b) 30 September 2018 (the
Second Reduction Date
), the Total Revolving Loan Commitments shall be reduced by $50,000,000, provided however that if, at least ten Business Days before the Second Reduction Date:
|
(iii)
|
the Time Charter in relation to Ship E is renewed for an additional term of at least five calendar years at a charter rate providing a net capital rate (excluding operating costs and management fees) of no less than $70,000 per day, the Total Revolving Loan Commitments shall be reduced by $35,000,000 (instead of $50,000,000) which reduction shall be applied in equal amounts on the last Business Day of each calendar quarter commencing on the Second Reduction Date and ending on the Final Repayment Date; or
|
(iv)
|
the Time Charter in relation to Ship E is renewed for an additional term of at least three calendar years at a charter rate providing a net capital rate (excluding operating costs and management fees) of no less than $55,000 per day, the Total Revolving Loan Commitments shall be reduced by $50,000,000 which reduction shall be applied in equal amounts on the last Business Day of each calendar quarter commencing on the Second Reduction Date and ending on the final Repayment Date,
|
1.11
|
Adjustment of scheduled repayments
|
2
|
Illegality, prepayment and cancellation
|
2.1
|
Illegality
|
(a)
|
that Lender shall promptly notify the Agent (if applicable, providing reasonable detail of the relevant Sanctions Laws, to the extent permitted by law and regulation) upon becoming aware of that event;
|
(b)
|
upon the Agent notifying the Borrower, the Commitments of that Lender will be immediately cancelled and the Total Term Loan Commitments and Total Revolving Loan Commitments shall each be reduced pro rata; and
|
(c)
|
the Borrower shall repay that Lender's participation in the Loans on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
2.2
|
Unlawfulness and invalidity
|
(a)
|
it is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents or any Security Interest created or expressed to be created or evidenced by the Security Documents ceases to be effective;
|
(b)
|
any obligation or obligations of any Obligor under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents;
|
(c)
|
any Finance Document or any Security Interest created or expressed to be created or evidenced by the Security Documents ceases to be in full force and effect or is alleged by a party to it (other than a Finance Party) to be ineffective for any reason; or
|
(d)
|
any Security Document does not create legal, valid, binding and enforceable security over the assets charged under that Security Document or the ranking or priority of such security is adversely affected,
|
2.3
|
Expropriation
|
2.4
|
Change of control and delisting
|
2.4.3
|
The Borrower shall promptly notify the Agent upon any Obligor becoming aware of a Change of Control and/or a delisting according to clause 7.4.3 below.
|
2.4.4
|
If there is a Change of Control, the Agent shall cancel the Total Commitments and the Borrower shall prepay the Loans in full together with any other amounts owing under this Agreement or any of the other Finance Documents, on or prior to the date which is 30 days after the date on which the Change of Control occurred.
|
2.4.5
|
If the Parent ceases to be listed on NASDAQ or any other reputable stock exchange approved by the Lenders, the Agent shall cancel the Total Commitments and the Borrower shall prepay the Loans in full together with any other amounts owing under this Agreement or any of the other Finance Documents.
|
2.5
|
Voluntary cancellation
|
2.5.4
|
The Borrower may, if it gives the Agent not less than ten Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of $5,000,000) of the Term Loan Facility or Revolving Loan Facility (or a combination of both Facilities). Upon any such cancellation the Total Term Loan Commitments or Total Revolving Loan Commitments (as applicable) shall be reduced by the same amount and the relevant Commitments of the Lenders reduced pro rata.
|
2.5.5
|
The Borrower shall only be entitled to cancel the whole or any part of the Available Revolving Loan Facility which is then drawn if the Borrower prepays such amount of the Revolving Loans as may be necessary to ensure that the outstanding Revolving Loans after the date of such cancellation will not exceed the Available Revolving Loan Facility (as reduced by this clause 7.5).
|
2.6
|
Voluntary prepayment
|
2.7
|
Right of replacement or cancellation and prepayment in relation to a single Lender
|
2.7.5
|
If:
|
(a)
|
any sum payable to any Lender by an Obligor is required to be increased under clause 12.2 (
Tax gross-up
);
|
(b)
|
any Lender claims indemnification from the Borrower under clause 12.3 (
Tax indemnity
) or clause 13 (
Increased Costs
); or
|
(c)
|
any Lender becomes a Defaulting Lender,
|
2.7.6
|
On receipt of a notice referred to in clause 7.7.1 above, the Commitments of that Lender shall immediately be reduced to zero and (unless the Commitments of the relevant Lender are replaced in accordance with clause 7.7.4) the Total Term Loan Commitments and Total Revolving Loan Commitments shall each be reduced accordingly. The Agent shall as soon as practicable after receipt of a notice referred to in clause 7.7.1(c) above, notify all the Lenders.
|
2.7.7
|
On the last day of each Interest Period which ends after the Borrower has given notice under clause 7.7.1 above in relation to a Lender (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender's participation in the Loans.
|
2.7.8
|
The Borrower may, in the circumstances set out in clause 7.7.1, on 15 Business Days' prior notice to the Agent and that Lender or in the circumstances set out in clause 7.1, on 15 Business Days' prior notice to the Agent and that Lender (subject to such period not extending beyond the earlier of the dates referred to in clause 7.1(c)), replace that Lender by requiring that Lender to assign (and, to the extent permitted by law, that Lender shall assign) pursuant to clause 32 (
Changes to the Lenders
) all (and not part only) of its rights under this Agreement to a Lender or other bank, financial institution or fund selected by the Borrower which confirms its willingness to undertake and does undertake all the obligations of the assigning Lender in accordance with clause 32 (
Changes to the Lenders
) for a purchase price in cash or other cash payment payable at the time of the assignment equal to the aggregate of:
|
(a)
|
the outstanding principal amount of such Lender's participation in the Loans;
|
(b)
|
all accrued interest owing to such Lender;
|
(c)
|
the Break Costs which would have been payable to such Lender pursuant to clause 10.6 (
Break Costs
) had the Borrower prepaid in full that Lender's participation in the Loans on the date of the assignment; and
|
(d)
|
all other amounts payable to that Lender under the Finance Documents on the date of the assignment.
|
2.7.9
|
The replacement of a Lender pursuant to clause 7.7.4 shall be subject to the following conditions:
|
(a)
|
the Borrower shall have no right to replace the Agent;
|
(b)
|
neither the Agent nor any Lender shall have any obligation to find a replacement Lender;
|
(c)
|
in no event shall the Lender replaced under clause 7.7.4 be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and
|
(d)
|
the Lender shall only be obliged to assign its rights pursuant to clause 7.7.4 above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that assignment.
|
2.7.10
|
A Lender shall perform the checks described in clause 7.7.5(d) above as soon as reasonably practicable following delivery of a notice referred to in clause 7.7.4 above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.
|
2.8
|
Sale or Total Loss
|
2.8.1
|
On a Mandatory Repayment Date in relation to any of the Ships (other than Ship F) or in relation to an Owner or a Bareboat Charterer of any of the Ships (other than Ship F):
|
(c)
|
the Total Commitments and the Available Facilities will each be reduced by the Applicable Fraction of the Total Commitments and the Available Facilities and, in the case of the sale of all or part of an Owner or a Bareboat Charterer, the Applicable Fraction shall relate to the Ship which is owned or chartered by such Owner or Bareboat Charterer; and
|
(d)
|
the Borrower shall prepay:
|
(i)
|
the Applicable Fraction of the Term Loan; and
|
(ii)
|
the Applicable Fraction of those Revolving Loans that may be nominated by the Borrower prior to the Mandatory Repayment Date to the extent of the Available Revolving Loan Facility (as so reduced),
|
2.8.2
|
On a Mandatory Repayment Date in relation to Ship F or in relation to the Owner or the Bareboat Charterer of Ship F:
|
(a)
|
(in the case of a sale of Ship F or a sale of all or part of the Owner or the Bareboat Charterer of Ship F):
|
(iii)
|
the Total Commitments will be reduced to zero; and
|
(iv)
|
the Borrower shall prepay the Loans in full together with any other amounts owing under this Agreement or any of the other Finance Documents; and
|
(b)
|
(in the case of a Total Loss of Ship F):
|
(v)
|
the Borrower shall prepay the Facilities in an amount equal to the greater of (A) 40 per cent of the aggregate of the Available Facility and the Loans and (B) the actual insurance proceeds or Requisition Compensation for such Total Loss as paid by the insurers or the relevant government entity (on the basis that the insured value of Ship F as at the date of this Agreement is $376,000,000); and
|
(vi)
|
the Total Commitments shall be reduced accordingly.
|
2.9
|
Automatic cancellation
|
2.9.2
|
Any part of the Total Term Loan Commitments which has not become available by, or which is undrawn on, the Last Term Loan Availability Date shall be automatically cancelled at close of business in London on the Last Term Loan Availability Date.
|
2.9.3
|
Any part of the Total Revolving Loan Commitments which has not become available by, or which is undrawn on, the Last Revolving Loan Availability Date shall be automatically cancelled at close of business in London on the Last Revolving Loan Availability Date.
|
2.10
|
Restrictions
|
2.10.1
|
Any notice of cancellation or prepayment given by any Party under this clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
2.10.2
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
|
2.10.3
|
Unless a contrary indication appears in this Agreement, any part of the Revolving Loan Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement. The Borrower may not reborrow any part of the Term Loan Facility which is prepaid or repaid.
|
2.10.4
|
The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
2.10.5
|
No amount of the Commitments cancelled under this Agreement may be subsequently reinstated.
|
2.10.6
|
If the Agent receives a notice under this clause 7 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.
|
2.10.7
|
If the Total Commitments are partially reduced and/or the Term Loan partially prepaid under this Agreement (other than under clause 7.1 (
Illegality
) and clause 7.7 (
Right of cancellation and prepayment in relation to a single Lender
)), the Commitments of the Lenders shall be reduced pro rata. Any prepayment shall be applied pro rata to each Lender's participation in the relevant Loan.
|
2.10.8
|
Any prepayment under this Agreement shall be made together with payment to any Hedging Provider, of any amount falling due to the relevant Hedging Provider under a Hedging Contract as a result of the termination or close out of that Hedging Contract or any Hedging Transaction under it in accordance with clause 29.2 (
Unwinding of Hedging Contracts
) in relation to that prepayment.
|
1
|
Interest
|
1.11
|
Calculation of interest
|
(a)
|
Margin; and
|
(b)
|
LIBOR.
|
1.12
|
Payment of interest
|
1.13
|
Default interest
|
1.13.1
|
If an Obligor fails to pay any amount payable by it under a Finance Document (other than a Hedging Contract) on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to clause 8.3.2 below, is 2 per cent per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this clause 8.3 shall be immediately payable by the Obligor on demand by the Agent.
|
1.13.2
|
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan or the relevant part of it:
|
(a)
|
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
(b)
|
the rate of interest applying to the overdue amount during that first Interest Period shall be 2 per cent per annum higher than the rate which would have applied if the overdue amount had not become due.
|
1.13.3
|
Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
1.14
|
Notification of rates of interest
|
1.14.1
|
The Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.
|
1.14.2
|
The Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan.
|
2
|
Interest Periods
|
2.1
|
Selection of Interest Periods
|
2.1.2
|
The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan or (in relation to the Term Loan, if it has already been borrowed) in a Selection Notice.
|
2.1.3
|
Each Selection Notice is irrevocable and must be delivered to the Agent by the Borrower not later than 11:00 a.m. four Business Days before the last day of the then current Interest Period.
|
2.1.4
|
If the Borrower fails to deliver a Selection Notice to the Agent in accordance with clause 9.1.2, the relevant Interest Period will, subject to clause 9.2 (
Interest Periods overrunning Repayment Dates
), be three months.
|
2.1.5
|
Subject to this clause 9, the Borrower may select an Interest Period of
three or six months or any other period agreed between the Borrower and the Agent (acting on the instructions of all the Lenders).
|
2.1.6
|
No Interest Period shall extend beyond the Final Repayment Date.
|
2.1.7
|
The first Interest Period for the Term Loan shall start on the Utilisation Date and each subsequent Interest Period for the Term Loan shall start on the last day of its preceding Interest Period. The Interest Period for a Revolving Loan shall start on its Utilisation Date. A Revolving Loan has one Interest Period only.
|
2.2
|
Interest Periods overrunning Repayment Dates
|
2.3
|
Non-Business Days
|
3
|
Changes to the calculation of interest
|
3.1
|
Unavailability of Screen Rate
|
3.1.2
|
If no Screen Rate is available for LIBOR for an Interest Period, LIBOR shall be the Interpolated Screen Rate for a period equal in length to that Interest Period.
|
3.1.3
|
If no Screen Rate is available for LIBOR for:
|
(a)
|
dollars; or
|
(b)
|
the relevant Interest Period and it is not possible to calculate the Interpolated Screen Rate,
|
3.1.4
|
If clause 10.1.2 above applies but no Reference Bank Rate is available for dollars or the relevant Interest Period, there shall be no LIBOR for that Interest Period and clause 10.4.1 (
Cost of funds
) shall apply for that Interest Period.
|
3.2
|
Calculation of Reference Bank Rate
|
3.2.6
|
Subject to clause 10.2.2, if LIBOR for an Interest Period is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by noon on the relevant Quotation Day, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.
|
3.2.7
|
If at or about noon on the relevant Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for that Interest Period and clause 10.4.1 (
Cost of funds
) shall apply to the relevant Loan for that Interest Period.
|
3.3
|
Market disruption
|
3.4
|
Cost of funds
|
3.4.7
|
If this clause 10.4 applies, the rate of interest on that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
|
(a)
|
the Margin; and
|
(b)
|
the rate notified to the Agent by that Lender as soon as practicable and in any event within five Business Days of the first day of that Interest Period (or, if earlier, on the date falling five Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.
|
3.4.8
|
If this clause 10.4 applies and the Agent or the Borrower so require, the Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.
|
3.4.9
|
Any alternative basis agreed pursuant to clause 10.4.2 above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.
|
3.4.10
|
If this clause 10.4 applies pursuant to clause 10.3 (
Market disruption
) and:
|
(a)
|
a Lender's Funding Rate is less than LIBOR; or
|
(b)
|
a Lender does not supply a quotation by the time specified in clause (c) above,
|
3.5
|
Notification to Borrower
|
3.6
|
Break Costs
|
3.6.3
|
The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or relevant part of it or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or relevant part of it or Unpaid Sum.
|
3.6.4
|
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
4
|
Fees
|
4.1
|
Commitment commission
|
4.1.8
|
The Borrower shall pay to the Agent (for the account of each Lender) a fee in dollars computed at the rate of 40 per cent of the Margin per annum on the undrawn and uncancelled portion of that Lender's Commitments calculated on a daily basis from the date of this Agreement.
|
4.1.9
|
The Borrower shall pay the accrued commitment commission on the first Utilisation Date, the last day of the period of three months commencing on the first Utilisation Date, on the last day of each successive period of three months, on the Last Revolving Loan Availability Date and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitments at the time the cancellation is effective.
|
4.2
|
Fees
|
1
|
Tax gross-up and indemnities
|
1.4
|
Definitions
|
1.4.6
|
In
this Agreement
:
|
1.5
|
Tax gross-up
|
1.5.11
|
Each Obligor shall make all payments to be made by it under any Finance Document without any Tax Deduction, unless a Tax Deduction is required by law.
|
1.5.12
|
The Borrower shall, promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction), notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
1.5.13
|
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor under the relevant Finance Document shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
1.5.14
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
1.5.15
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
1.5.16
|
This clause 12.2 shall not apply in respect of any payments under any Hedging Contract, where the gross-up provisions of the relevant Hedging Master Agreement itself shall apply.
|
1.6
|
Tax indemnity
|
1.6.11
|
The Borrower shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
1.6.12
|
Clause 12.3.1 above shall not apply:
|
(a)
|
with respect to any Tax assessed on a Finance Party:
|
(iii)
|
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(iv)
|
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(b)
|
to the extent a loss, liability or cost:
|
(i)
|
is compensated for by an increased payment under clause 12.2 (
Tax gross-up
);
|
(ii)
|
is compensated for by an increased payment under clause 12.5 (
Indemnities on after Tax basis
); or
|
(iii)
|
relates to a FATCA Deduction required to be made by a Party or any Obligor which is not a Party.
|
1.6.13
|
A Protected Party making, or intending to make a claim under clause 12.3.1 above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.
|
1.6.14
|
A Protected Party shall, on receiving a payment from an Obligor under this clause 12.3, notify the Agent.
|
1.7
|
Tax Credit
|
(c)
|
a Tax Credit is attributable (A) to an increased payment of which that Tax Payment forms part, (B) to that Tax Payment or (C) to a Tax Deduction in consequence of which that Tax Payment was required; and
|
(d)
|
that Finance Party has obtained and utilised that Tax Credit,
|
1.8
|
Indemnities on after Tax basis
|
1.8.4
|
If and to the extent that any sum (the
Indemnity Sum
) constituting (directly or indirectly) an indemnity to any Protected Party but paid by the Borrower to any person other than that Protected Party, shall be treated as taxable in the hands of the Protected Party, the Borrower shall pay to that Protected Party such sum (the
Compensating Sum
) as (after taking into account any Tax suffered by that Protected Party on the Compensating Sum) shall reimburse that Protected Party for any Tax suffered by it in respect of the Indemnity Sum.
|
1.8.5
|
For the purposes of this clause 12.5 a sum shall be deemed to be taxable in the hands of a Protected Party if it falls to be taken into account in computing the profits or gains of that Protected Party for the purposes of Tax and, if so, that Protected Party shall be deemed to have suffered Tax on the relevant sum at the rate of Tax applicable to that Protected Party's profits or gains for the period in which the payment of the relevant sum falls to be taken into account for the purposes of such Tax.
|
1.9
|
FATCA Information
|
1.9.9
|
Subject to clause 12.6.3 below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(c)
|
confirm to that other Party whether it is:
|
(i)
|
a FATCA Exempt Party; or
|
(ii)
|
not a FATCA Exempt Party;
|
(d)
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
(e)
|
supply to that other Party such forms, documentation and other information relating to its status as the other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
|
1.9.10
|
If a Party confirms to another Party pursuant to clause 12.6.1(a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
1.9.11
|
Clause 12.6.1 above shall not oblige any Finance Party to do anything and clause 12.6.1(c) above shall not oblige any Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(a)
|
any law or regulation;
|
(b)
|
any fiduciary duty; or
|
(c)
|
any duty of confidentiality.
|
1.10
|
FATCA Deduction
|
1.10.2
|
Each Party may make any FATCA Deduction it is required to make by FATCA and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
1.10.3
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Borrower and the Agent and the Agent shall notify the other Finance Parties.
|
1.11
|
Stamp taxes
|
(c)
|
The Borrower shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
|
(d)
|
Unless an Event of Default has occurred and is continuing, paragraph (a) above shall not apply in respect of any stamp duty, registration or other similar Taxes which are payable in respect of an assignment, transfer or other alienation of any kind by a Finance Party of any of its rights and/or obligations under a Finance Document.
|
1.12
|
Value added tax
|
1.12.4
|
All amounts expressed in a Finance Document to be payable by any party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to clause 12.9.2 below, if VAT is or becomes chargeable on any supply made by any Finance Party to any party under a Finance Document, and such Finance Party is required to account to the relevant tax authority for the VAT, that party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that party).
|
1.12.5
|
If VAT is or becomes chargeable on any supply made by any Finance Party (the
Supplier
) to any other Finance Party (the
Recipient
) under a Finance Document, and any party to a Finance Document other than the Recipient (the
Subject Party
) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(a)
|
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Subject Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (a) applies) promptly pay to the Subject Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
(b)
|
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Subject Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
1.12.6
|
Where a Finance Document requires any party to it to reimburse or indemnify a Finance Party for any cost or expense, that party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment of in respect of such VAT from the relevant tax authority.
|
1.12.7
|
Any reference in this clause 12.9 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term "representative member" to have the same meaning as in the Value Added Tax Act 1994).
|
1.12.8
|
In relation to any supply made by a Finance Party to any party under a Finance Document, if reasonably requested by such Finance Party, that party must promptly provide such Finance Party with details of that party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
|
2
|
Increased Costs
|
2.7
|
Increased Costs
|
2.7.6
|
Subject to clause 13.3 (
Exceptions
), the Borrower shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Cost incurred by that Finance Party or any of its Affiliates which:
|
(c)
|
arises as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement; and/or
|
(d)
|
is a Basel III Increased Cost.
|
2.7.7
|
In this Agreement
Increased Costs
means:
|
(c)
|
a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(d)
|
an additional or increased cost; or
|
(e)
|
a reduction of any amount due and payable under any Finance Document,
|
2.8
|
Increased Cost claims
|
2.8.12
|
A Finance Party intending to make a claim pursuant to clause 13 (
Increased Costs
) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.
|
2.8.13
|
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs and setting forth the basis of the computation of such amount but not including any matters which such Lender or its Holding Company regards as confidential.
|
2.9
|
Exceptions
|
2.9.4
|
Clause 13 (
Increased Costs
) does not apply to the extent any Increased Cost is:
|
(e)
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(f)
|
compensated for by clause 12.5 (
Indemnities on after Tax basis
) or clause 12.3 (
Tax indemnity
) (or would have been compensated for under clause 12.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in clause 12.3.2 applied);
|
(g)
|
attributable to a FATCA Deduction required to be made by a Party; or
|
(h)
|
a Basel II Increased Cost or is attributable to the implementation or application or compliance with any other law or regulation which implements the Basel II Accord (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates); or
|
(i)
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
|
2.9.5
|
In this clause 13.3, a reference to a
Tax Deduction
has the same meaning given to the term in clause 12.1 (
Definitions
).
|
3
|
Other indemnities
|
3.3
|
Currency indemnity
|
3.3.17
|
If any sum due from an Obligor under the Finance Documents (a
Sum
), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the
First Currency
) in which that Sum is payable into another currency (the
Second Currency
) for the purpose of:
|
(a)
|
making or filing a claim or proof against that Obligor; and/or
|
(b)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
3.3.18
|
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
3.4
|
Other indemnities
|
(d)
|
the occurrence of any Event of Default;
|
(e)
|
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any and all Losses arising as a result of clause 37 (
Sharing among the Finance Parties
);
|
(f)
|
any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses (including reasonable counsel fees and disbursements) incurred by any Finance Party whether in respect of investigating or making an enquiry or otherwise as a result of conduct of any Relevant Party or any of their directors, officers or employees that violates any Sanctions Laws applicable to it if such loss or liability or cost and expense would not have been, or been capable of being, made or asserted against the relevant Finance Party if it had not entered into any of the Finance Documents and/or exercised any of its rights, powers and discretions thereby conferred and/or performed any of its obligations thereunder and/or been involved in any of the transactions contemplated by the Finance Documents and any reasonable counsel fees and disbursements incurred by any Finance Party as a result of a Finance Party investigating or making any enquiry relating to a possible or alleged violation of any Sanctions Laws by a Relevant Party or any of their directors, officers or employees where it is reasonable for a Finance Party to investigate or make enquires in relation to any such possible or alleged violation and the Borrower has either requested that a Finance Party undertakes such investigation or makes such enquiries or has approved any such investigation or enquiries (such approval not to be unreasonably withheld or delayed);
|
(g)
|
funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
|
(h)
|
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
3.5
|
Indemnity to the Agent and the Security Agent
|
(e)
|
any and all Losses properly incurred by the Agent or the Security Agent (acting reasonably) as a result of:
|
(i)
|
investigating any event which it reasonably believes is a Default;
|
(ii)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
(iii)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; or
|
(iv)
|
any action taken by the Agent or the Security Agent or any of its or their
representatives, agents or contractors in connection with any powers conferred by any Security Document to remedy any breach of any Obligor's obligations under the Finance Documents, and
|
(f)
|
any cost, loss or liability (including, without limitation, in respect of liability for negligence or any other category of liability whatsoever) properly incurred by the Agent or the Security Agent (otherwise than by reason of the Agent's or the Security Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to clause 38.10 (
Disruption to payment systems etc.)
notwithstanding the Agent's or the Security Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent in acting as Agent or the Security Agent under the Finance Documents.
|
3.6
|
Indemnity concerning security
|
3.6.8
|
The Borrower shall (or shall procure that another Obligor will) promptly indemnify, on an after-Tax basis, each Indemnified Person against any and all Losses properly incurred by it in connection with:
|
(a)
|
any failure by the Borrower to comply with its obligations under clause 16
(Costs and expenses
) or any
corresponding provisions in any other Finance Document;
|
(b)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
(c)
|
the taking, holding, protection or enforcement of the Security Documents;
|
(d)
|
the exercise or purported exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and/or any other Finance Party and each Receiver by the Finance Documents or by law;
|
(e)
|
any breach by an Obligor of the Finance Documents;
|
(f)
|
any claim (whether relating to the environment or otherwise) made or asserted against the Indemnified Person which would not have arisen but for the execution or enforcement of one or more Finance Documents (unless and to the extent it is caused by the gross negligence or wilful misconduct of that Indemnified Person); or
|
(g)
|
(in the case of the Security Agent and/or any other Finance Party and any Receiver) acting as Security Agent and/or as holder of any of the Security Interests under the Security Documents or Receiver under the Finance Documents or which otherwise relates to the Charged Property.
|
3.6.9
|
The Security Agent may, in priority to any payment to the other Finance Parties, indemnify itself, on an after-Tax basis, out of the Trust Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this clause 14.4 and shall have a lien on the Security Documents and the proceeds of the enforcement of those Security Documents for all moneys payable to it.
|
3.7
|
Continuation of indemnities
|
3.8
|
Third Parties Act
|
3.9
|
Interest
|
3.10
|
Exclusion of liability
|
4
|
Mitigation by the Lenders
|
4.1
|
Mitigation
|
4.1.7
|
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in the Facilities ceasing to be available or any amount becoming payable under or pursuant to, or cancelled pursuant to, any of clause 7.1 (
Illegality
), clause 12 (
Tax gross-up and indemnities
) or clause 13 (
Increased Costs)
including (but not limited to) assigning its rights or transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
4.1.8
|
Clause 15.1.1 does not in any way limit the obligations of any Obligor under the Finance Documents.
|
4.2
|
Limitation of liability
|
4.2.19
|
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under clause 15.1 (
Mitigation
).
|
4.2.20
|
A Finance Party is not obliged to take any steps under clause 15.1 (
Mitigation
) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
5
|
Costs and expenses
|
5.1
|
Transaction expenses
|
(a)
|
this Agreement, the Hedging Master Agreements and any other documents referred to in this Agreement and the Original Security Documents;
|
(b)
|
any other Finance Documents executed or proposed to be executed after the date of this Agreement including any executed to provide additional security under clause 25 (
Minimum security value
); or
|
(c)
|
any Security Interest expressed or intended to be granted by a Finance Document.
|
5.2
|
Amendment costs
|
5.3
|
Enforcement, preservation and other costs
|
(g)
|
the enforcement of, or the preservation of any rights under, any Finance Document and any proceedings initiated by or against any Indemnified Person and as a consequence of holding the Charged Property or enforcing those rights and any proceedings instituted by or against any Indemnified Person as a consequence of taking or holding the Security Documents or enforcing those rights;
|
(h)
|
any valuation carried out under clause 25 (
Minimum security value
); or
|
(i)
|
any inspection carried out under clause 23.8 (
Inspection and notice of dry-docking
) or any survey carried out under clause 23.16 (
Survey report
).
|
1
|
Guarantee and indemnity
|
1.10
|
Guarantee and indemnity
|
(e)
|
guarantees to the Security Agent (as trustee for the Finance Parties) and the other Finance Parties punctual performance by each other Obligor of all such Obligor's obligations under the Finance Documents;
|
(f)
|
undertakes with the Security Agent (as trustee for the Finance Parties) and the other Finance Parties that whenever another Obligor does not pay any amount when due under or in connection with any Finance Document, it shall immediately on demand pay that amount as if it was the principal obligor; and
|
(g)
|
agrees with the Security Agent (as trustee for the Finance Parties) and the other Finance Parties that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by the Borrower under any Finance Document on the date when it would have been due. The amount payable by each Guarantor under this indemnity will not exceed the amount it would have had to pay under this clause 17.1 if the amount claimed had been recoverable on the basis of a guarantee.
|
1.11
|
Continuing guarantee
|
1.12
|
Reinstatement
|
1.13
|
Waiver of defences
|
(f)
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(g)
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any other Obligor;
|
(h)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
(i)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(j)
|
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(k)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(l)
|
any insolvency or similar proceedings.
|
1.14
|
Guarantor Intent
|
1.15
|
Immediate recourse
|
1.16
|
Appropriations
|
(f)
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
|
(g)
|
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this clause 17.
|
1.17
|
Deferral of Guarantor’s rights
|
(a)
|
to be indemnified by another Obligor;
|
(b)
|
to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents;
|
(c)
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
(d)
|
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under clause 17 (
Guarantee and Indemnity
);
|
(e)
|
to exercise any right of set-off against any other Obligor; and/or
|
(f)
|
to claim or prove as a creditor of any other Obligor in competition with any Finance Party.
|
1.18
|
Additional security
|
1.19
|
Assignment
|
1
|
Representations
|
1.11
|
Status
|
1.11.3
|
Each Obligor (except the Parent) is a limited liability company or corporation, duly incorporated and validly existing under the law of its Original Jurisdiction.
|
1.11.4
|
The Parent is a limited partnership, duly formed and validly existing under the law of its Original Jurisdiction.
|
1.11.5
|
Each Obligor and each other Group Member has power and authority to carry on its business as it is now being conducted and to own its property and other assets.
|
1.12
|
Binding obligations
|
1.13
|
Power and authority
|
1.13.1
|
Each Obligor has power to enter into, perform and deliver and comply with its obligations under, and has taken all necessary action to authorise its entry into, each Finance Document and any Charter Document to which it is, or is to be, a party and each of the transactions contemplated by those documents.
|
1.13.2
|
No limitation on any Obligor's powers to borrow, create security or give guarantees will be exceeded as a result of any transaction under, or the entry into of, any Finance Document or any Charter Document to which such Obligor is, or is to be, a party.
|
1.14
|
Non-conflict
|
(c)
|
any law or regulation applicable to any Obligor;
|
(d)
|
the Constitutional Documents of any Obligor; or
|
(e)
|
any agreement or other instrument binding upon any Obligor or any other Group Member or its or any other Group Member's assets,
|
1.15
|
Validity and admissibility in evidence
|
1.15.2
|
All authorisations required or desirable:
|
(g)
|
to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations under each Finance Document and any Charter Document to which it is a party;
|
(h)
|
to make each Finance Document and any Charter Document to which it is a party admissible in evidence in its Relevant Jurisdiction; and
|
(i)
|
to ensure that each of the Security Interests created under the Security Documents has the priority and ranking contemplated by them,
|
1.15.3
|
All authorisations necessary for the conduct of the business, trade and ordinary activities of each Obligor and each other Group Member have been obtained or effected and are in full force and effect if failure to obtain or effect those authorisations might have a Material Adverse Effect.
|
1.16
|
Governing law and enforcement
|
1.16.2
|
The choice of English law or any other applicable law as the governing law of any Finance Document and any Charter Document will be recognised and enforced in each Obligor's Relevant Jurisdictions.
|
1.16.3
|
Any judgment obtained in England in relation to an Obligor will be recognised and enforced in each Obligor's Relevant Jurisdictions.
|
1.17
|
Information
|
1.17.1
|
Any Information is true and accurate in all material respects at the time it was given or made.
|
1.17.2
|
There are no facts or circumstances or any other information which could make the Information incomplete, untrue, inaccurate or misleading in any material respect.
|
1.17.3
|
The Information does not omit anything which could make the Information incomplete, untrue, inaccurate or misleading in any material respect.
|
1.17.4
|
All opinions, projections, forecasts or expressions of intention contained in the Information and the assumptions on which they are based have been arrived at after due and careful enquiry and consideration and were believed to be reasonable by the person who provided that Information as at the date it was given or made.
|
1.17.5
|
For the purposes of this clause 18.7,
Information
means: any information provided by any Obligor or any other Group Member to any of the Finance Parties in connection with the Finance Documents or any Charter Document or the transactions referred to in them.
|
1.18
|
Original Financial Statements
|
1.18.1
|
The Original Financial Statements were prepared in accordance with GAAP consistently applied.
|
1.18.2
|
The audited Original Financial Statements give a true and fair view of the financial condition and results of operations of the relevant Obligors and the Group (consolidated in the case of the Group) during the relevant financial year.
|
1.18.3
|
There has been no material adverse change in its assets, business or financial condition (or the assets, business or consolidated financial condition of the Group, in the case of the Parent) since the date of the Original Financial Statements.
|
1.19
|
Pari passu ranking
|
1.20
|
Ranking and effectiveness of security
|
1.21
|
No insolvency
|
1.22
|
No filing or stamp taxes
|
1.23
|
Tax
|
1.23.1
|
No Obligor is required to make any Tax Deduction from any payment it may make under any Finance Document to which it is, or is to be, a party and no Owner, Bareboat Charterer or, to the knowledge of any Obligor, Time Charterer is required to make any such Tax Deduction from any payment it may make under any Charter Document.
|
1.23.2
|
Other than as specifically stated in any Legal Opinion delivered to the Agent in connection with the first Utilisation of Term Loan Facility, the execution or delivery or performance by any Party of the Finance Documents will not result in any Finance Party:
|
(a)
|
having any liability in respect of Tax in any Flag State;
|
(b)
|
having or being deemed to have a place of business in any Flag State or any Relevant Jurisdiction of any Obligor.
|
1.24
|
Centre of main interests and establishments
|
1.25
|
No Default
|
1.25.1
|
No Default is continuing or might reasonably be expected to result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Finance Document or any Charter Document.
|
1.25.2
|
No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on any Obligor or any other Group Member or to which any Obligor's (or any other Group Member's) assets are subject which might have a Material Adverse Effect.
|
1.26
|
No proceedings pending or threatened
|
1.27
|
No breach of laws
|
1.27.1
|
No Obligor or other Group Member has breached any law or regulation which breach might have a Material Adverse Effect.
|
1.27.2
|
No labour dispute is current or, to the best of any Obligor's knowledge and belief (having made due and careful enquiry), threatened against any Obligor or other Group Member which may have a Material Adverse Effect.
|
1.28
|
Environmental matters
|
1.28.1
|
No Environmental Law applicable to any Fleet Vessel and/or any Obligor or other Group Member has been violated in a manner or circumstances which might have, a Material Adverse Effect.
|
1.28.2
|
All consents, licences and approvals required under such Environmental Laws have been obtained and are currently in force.
|
1.28.3
|
No Environmental Claim has been made or, to the best of any Obligor's knowledge and belief (having made due and careful enquiry), is threatened or pending against any Group Member or any Fleet Vessel where that claim might have a Material Adverse Effect and there has been no Environmental Incident which has given, or might give, rise to such a claim.
|
1.29
|
Tax compliance
|
1.29.1
|
No Obligor or other Group Member is materially overdue in the filing of any Tax returns or overdue in the payment of any amount in respect of Tax.
|
1.29.2
|
No claims or investigations are being, or are reasonably likely to be, made or conducted against any Obligor or other Group Member with respect to Taxes such that a liability of, or claim against, any Obligor or other Group Member is reasonably likely to arise for an amount for which adequate reserves have not been provided in the Original Financial Statements and which might have a Material Adverse Effect, except as separately disclosed in writing and agreed by the Agent (acting on the instructions of the Lenders).
|
1.29.3
|
Each of the Borrower and the Parent are (so far as the Borrower and the Parent are aware) resident for Tax purposes only in their Original Jurisdiction.
|
1.30
|
Anti-corruption law
|
1.31
|
Security and Financial Indebtedness
|
1.31.1
|
No Security Interest exists over all or any of the present or future assets of any Owner or Bareboat Charterer in breach of this Agreement.
|
1.31.2
|
No Owner or Bareboat Charterer has any Financial Indebtedness outstanding in breach of this Agreement.
|
1.32
|
Legal and beneficial ownership
|
1.33
|
Shares
|
1.34
|
Accounting Reference Date
|
1.35
|
No adverse consequences
|
1.35.1
|
Other than as specifically stated in any Legal Opinion delivered to the Agent in connection with the first Utilisation of Term Loan Facility, it is not necessary under the laws of the Relevant Jurisdictions of any Obligor:
|
(a)
|
in order to enable any Finance Party to enforce its rights under any Finance Document to which it is, or is to be, a party; or
|
(b)
|
by reason of the execution of any Finance Document or the performance by any Obligor of its obligations under any Finance Document,
|
1.35.2
|
Other than as specifically stated in any Legal Opinion delivered to the Agent in connection with the first Utilisation of Term Loan Facility, no Finance Party is or will be deemed to be resident, domiciled or carrying on business in any Relevant Jurisdiction by reason only of the execution, performance and/or enforcement of any Finance Document.
|
1.36
|
Copies of documents
|
1.37
|
No breach of any Charter Document
|
1.38
|
No immunity
|
1.39
|
Ship status
|
(a)
|
registered in the name of the relevant Owner through the relevant Registry as a ship under the laws and flag of the relevant Flag State;
|
(b)
|
operationally seaworthy and in every way fit for service;
|
(c)
|
classed with the relevant Classification with the highest class free of all overdue requirements and recommendations of the relevant Classification Society; and
|
(d)
|
insured in the manner required by the Finance Documents.
|
1.40
|
Ship's employment
|
(a)
|
have been delivered, and accepted for service, under (if applicable) its Bareboat Charter and its Time Charter; and
|
(b)
|
be free of any other charter commitment which, if entered into after that date, would require approval under the Finance Documents.
|
1.41
|
Address commission
|
1.42
|
Sanctions
|
1.42.1
|
Each Relevant Party and its respective directors, officers and employees and, so far as each Relevant Party is aware, any of its agents or representatives is and, for the period of twelve months prior to the date of this Agreement, was in compliance with all Sanctions Laws which are applicable to such Relevant Party.
|
1.42.2
|
No Relevant Party, nor their respective directors, officers or employees or, so far as each Relevant Party is aware, their agents or representatives:
|
(a)
|
is a Restricted Party, or is involved in any transaction through which it will become a Restricted Party; or
|
(b)
|
is subject to or involved in any inquiry, claim, action, suit, proceeding or investigation by any Sanctions Authority against it with respect to Sanctions Laws.
|
1.43
|
Sanctions Laws applicable to Finance Parties
|
1.44
|
No money laundering
|
1.45
|
No corrupt practices
|
1.45.1
|
No Loan is used by any Obligor for and no Obligor is engaged in:
|
(a)
|
Corrupt Practices, Fraudulent Practices, Collusive Practices or Coercive Practices, including the procurement or the execution of any contract for goods or works relating to its functions and each Obligor has instituted and maintains policies and procedures designed to prevent violation of any laws, regulations and rules which prohibit any such Corrupt Practices, Fraudulent Practices, Collusive Practices or Coercive Practices;
|
(b)
|
the Financing of Terrorism.
|
1.45.2
|
For the purposes of this clause 18.35, the following definitions shall apply:
|
1.46
|
Financing of vessels owned by Group Members
|
1.47
|
Times when representations are made
|
(a)
|
this Agreement;
|
(b)
|
the first Utilisation Request; and
|
(c)
|
the first Utilisation.
|
1.47.2
|
The Repeating Representations are deemed to be made on the dates of each subsequent Utilisation Request, the date of issuance of each Compliance Certificate and the first day of each Interest Period.
|
1.47.3
|
All of the Ship Representations are deemed to be made on the first day of the Mortgage Period for the relevant Ship.
|
1.47.4
|
Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and circumstances then existing at the date the representation or warranty is deemed to be made.
|
2
|
Information undertakings
|
2.3
|
Financial statements
|
2.3.15
|
The Borrower shall supply to the Agent as soon as the same become available, but in any event within 180 days after the end of each financial year:
|
(a)
|
the audited consolidated financial statements of the Group for that financial year; and
|
(b)
|
the unaudited financial statements of the Borrower for that financial year.
|
2.3.16
|
The Borrower shall supply to the Agent as soon as the same become available, but in any event within 60 days after the end of each financial quarter of each financial year the unaudited consolidated financial statements of the Group for that financial quarter.
|
2.3.17
|
As soon as they become available, but in any event within two months after the end of each financial year of the Group, the Borrower shall deliver to the Agent the budget and annual cash flow projections of the Group.
|
2.4
|
Provision and contents of Compliance Certificate
|
2.4.5
|
The Borrower shall supply a Compliance Certificate to the Agent, with each set of Annual Financial Statements and each set of Quarterly Financial Statements for the Group.
|
2.4.6
|
Each Compliance Certificate shall, amongst other things, set out (in reasonable detail) computations as to compliance with clause 20 (
Financial covenants
) and in respect of each Compliance Certificate provided together with each set of Annual Financial Statements, clause 25 (
Minimum security value
).
|
2.4.7
|
Each Compliance Certificate shall be signed by the chief financial officer of the Parent or, in his or her absence, by two directors of the Parent.
|
2.5
|
Requirements as to financial statements
|
2.5.10
|
The Borrower shall procure that each set of Annual Financial Statements and Quarterly Financial Statements includes a profit and loss account, a balance sheet and, in all cases other than in respect of the Borrower, a cashflow statement and that, in addition, each set of Annual Financial Statements of the Group shall be audited by the Auditors.
|
2.5.11
|
Each set of financial statements delivered pursuant to clause 19.1 (
Financial statements
) shall:
|
(j)
|
be prepared in accordance with GAAP;
|
(k)
|
give a true and fair view of (in the case of Annual Financial Statements for any financial year), or fairly represent (in other cases), the financial condition and operations of the Group or (as the case may be) the relevant Obligor as at the date as at which those financial statements were drawn up; and
|
(l)
|
in the case of annual audited financial statements, not be the subject of any qualification in the Auditors' opinion.
|
2.5.12
|
The Borrower shall procure that each set of financial statements delivered pursuant to clause 19.1 (
Financial statements
) shall be prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements, unless, in relation to any set of financial statements, the Borrower notifies the Agent that there has been a change in GAAP or the accounting practices and the Auditors deliver to the Agent:
|
(i)
|
a description of any change necessary for those financial statements to reflect the GAAP or accounting practices and reference periods upon which corresponding Original Financial Statements were prepared; and
|
(j)
|
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether clause 20 (
Financial covenants
) has been complied with and to make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.
|
2.5.13
|
Any reference in this Agreement to any financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.
|
2.6
|
Year-end
|
2.7
|
Information: miscellaneous
|
(m)
|
at the same time as they are dispatched, copies of all financial statements, financial forecasts, proxy statements and other material communications and documents dispatched by the Parent or any Obligors to its shareholders or creditors generally (or any class of them);
|
(n)
|
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any Group Member, and which, if adversely determined, might have a Material Adverse Effect or which would involve a liability, or a potential or alleged liability, exceeding $10,000,000 (or its equivalent in other currencies);
|
(o)
|
promptly upon becoming aware of them, the details of any change of law or regulation which is likely to have a Material Adverse Effect;
|
(p)
|
promptly, such information as the Agent may reasonably require about the Charged Property and compliance of the Obligors with the terms of any Security Documents; and
|
(q)
|
promptly on request, such further information regarding the financial condition, business, assets and operations of the Group and/or any Group Member and/or any Obligor as any Finance Party through the Agent may reasonably request provided that the provision of such further information would not breach any obligation of confidentiality.
|
2.8
|
Information: Sanctions
|
(h)
|
promptly upon becoming aware of them, the details of any enquiry, claim, action, suit, proceeding or investigation pursuant to Sanctions Laws by any Sanctions Authority against it or any of its respective directors, officers or employees, as well as information on what steps are being taken with regards to answer or oppose such;
|
(i)
|
promptly upon becoming aware of them, notice of any enquiry, claim, action, suit, proceeding or investigation pursuant to Sanctions Laws by any Sanctions Authority against any of its agents or representatives; and
|
(j)
|
promptly upon becoming aware, notice that it or any of its respective directors, officers, employees, agents or representatives has become or will become a Restricted Party.
|
2.9
|
Information: US waters
|
2.10
|
Notification of Default
|
2.11
|
Sufficient copies
|
2.12
|
Use of websites
|
2.12.3
|
The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the
Website Lenders
) who accept this method of communication by posting this information onto an electronic website (the Parties agree that the Agent’s Debtdomain system or such other similar system shall be acceptable) designated by the Borrower and the Agent (the
Designated Website
) if:
|
(h)
|
the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
(i)
|
both the Borrower and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
(j)
|
the information is in a format previously agreed between the Borrower and the Agent.
|
2.12.4
|
The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Borrower and the Agent.
|
2.12.5
|
The Borrower shall promptly upon becoming aware of its occurrence notify the Agent if:
|
(k)
|
the Designated Website cannot be accessed due to technical failure;
|
(l)
|
the password specifications for the Designated Website change;
|
(m)
|
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(n)
|
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(o)
|
the Borrower becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
2.13
|
"Know your customer" checks
|
(f)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(g)
|
any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or
|
(h)
|
a proposed assignment by a Lender or a Hedging Provider of any of its rights under this Agreement or any Hedging Contract to a party that is not already a Lender or a Hedging Provider prior to such assignment,
|
2.13.2
|
Each Finance Party shall promptly upon the request of the Agent or the Security Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent or the Security Agent (for itself) in order for it to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
3
|
Financial covenants
|
3.4
|
Financial definitions
|
(c)
|
deposits with first class international banks the maturity of which does not exceed 12 months;
|
(d)
|
bonds, certificates of deposit and other money market instruments or securities issued or guaranteed by the Norwegian or United States Governments; and
|
(e)
|
any other instrument approved by the Security Agent, with the authorisation of the Majority Lenders.
|
(a)
|
adjusted to exclude Interest Receivable and Interest Payable and other similar income or costs to the extent not already excluded;
|
(b)
|
adjusted to exclude any gain or loss realised on the disposal of fixed assets (whether tangible or intangible);
|
(c)
|
after adding back depreciation and amortisation charged which relates to such period;
|
(d)
|
adjusted to exclude any exceptional or extraordinary costs or income; and
|
(e)
|
after deducting any profit arising out of the release of any provisions against a liability or charge and adding back any provision relating to long term assets or contracts.
|
(a)
|
the value of Cash Equivalents shall be deemed to be their quoted price, as at any date of determination, on any recognised exchange (being an exchange recognised and approved by the Agent) on which the same are listed or any dealing facility through which the same are generally traded; and
|
(b)
|
any cash or Cash Equivalents denominated in a currency other than dollars shall be deemed to have a value in dollars equal to the dollar equivalent thereof at the rate of exchange published daily by the Security Agent as at any date of determination.
|
(a)
|
gross interest, commitment fees, discount and acceptance fees and guarantee, fronting and ancillary facility fees payable or incurred on any form of such Financial Indebtedness; and
|
(b)
|
arrangement fees or other upfront fees.
|
(a)
|
the amounts charged and posted (or estimated to be charged and posted) as a current accrual accrued during such period in respect of members of the Group by way of Interest on all Financial Indebtedness, but excluding any amount accruing as interest in-kind (and not as cash payment) to the extent capitalised as principal during such period; and
|
(b)
|
net payments in relation to interest rate or currency hedging arrangements in respect of Financial Indebtedness (after deducting net income in relation to such interest rate or currency hedging arrangements).
|
3.5
|
Financial condition
|
(a)
|
Free Liquid Assets
: the aggregate value of the Free Liquid Assets of the Group is at all times not less than $30,000,000.
|
(b)
|
Net Debt to EBITDA
: on any financial quarter end date, the ratio of Net Debt to EBITDA for the previous 12 months, on a trailing four quarter basis, shall be no greater than 6.50:1.
|
(c)
|
EBITDA to Consolidated Debt Service
: on any financial quarter end date, the ratio of EBITDA to Consolidated Debt Service for the previous 12 months, on a trailing four quarter basis, shall be no less than 1.15:1.
|
(d)
|
Consolidated Net Worth
: at all times the Consolidated Net Worth shall be equal to or greater than $250,000,000.
|
3.6
|
Financial testing
|
4
|
General undertakings
|
4.1.18
|
The Borrower and each Guarantor undertakes that this clause 21 will be complied with by and in respect of each Obligor and each other Group Member throughout the Facility Period.
|
4.2
|
Use of proceeds
|
4.2.8
|
The proceeds of Utilisations will be used exclusively for the purposes specified in clause 3 (
Purpose
).
|
4.2.9
|
No proceeds of the Loans shall be made available, directly or indirectly, to or for the benefit of a Restricted Party nor shall they otherwise be applied in a manner or for a purpose prohibited by Sanctions Laws or that could result in any Relevant Party or a Finance Party being in breach of any Sanctions Laws or becoming a Restricted Party.
|
4.3
|
Authorisations
|
(c)
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(d)
|
supply certified copies to the Agent of,
|
(i)
|
enable it to perform its obligations under the Finance Documents and the Charter Documents;
|
(ii)
|
ensure the legality, validity, enforceability or admissibility in evidence of any Finance Document or any Charter Document; and
|
(iii)
|
carry on its business where failure to do so has, or is reasonably likely to have, a Material Adverse Effect.
|
4.4
|
Compliance with laws
|
4.4.14
|
Each Obligor and each other Group Member will, comply in all respects with all laws and regulations (including Environmental Laws) to which it may be subject.
|
4.4.15
|
The Borrower shall procure that each of the Relevant Parties shall:
|
(a)
|
comply with all laws or regulations:
|
(iv)
|
applicable to its business; and
|
(v)
|
applicable to the Ship, its ownership, employment, operation, management and registration,
|
(b)
|
obtain, comply with and do all that is necessary to maintain in full force and effect any consent, authorisation, licence or approval of any governmental or public body or authorities or courts applicable to the Ship or its operation required under any Environmental Law; and
|
(c)
|
without limiting paragraph (a) above, not employ the Ship nor allow its employment, operation or management in any manner contrary to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions Laws applicable to the Ship or to any Relevant Party or, to the best of any Relevant Party’s knowledge or belief, any Finance Party.
|
4.5
|
Sanctions
|
4.5.6
|
The Borrower shall maintain in effect policies and procedures designed to ensure compliance by it, and shall procure that each Relevant Party maintains in effect policies and procedures designed to ensure compliance by such Relevant Party and the directors, officers and employees of it and of each Relevant Party, with all Sanctions Laws which are applicable to it or any other Relevant Party and to ensure that each Relevant Party and the directors, officers and employees of each Relevant Party do not engage in any activity that could reasonably be expected to result in any such person being designated as a Restricted Party. Upon request, the Borrower shall provide the Agent with full details of such policies and procedures.
|
4.5.7
|
No Relevant Party shall use any revenue or benefit derived from any activity or dealing with a Restricted Party in discharging any obligation due or owing to the Finance Parties if this shall lead to a breach of Sanctions Laws.
|
4.6
|
Anti-corruption law
|
4.6.2
|
No Obligor or other Group Member will directly or indirectly use the proceeds of the Facility for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other jurisdictions.
|
4.6.3
|
Each Obligor shall (and the Borrower shall ensure that each other Group Member will):
|
(a)
|
conduct its businesses in compliance with applicable anti-corruption laws; and
|
(b)
|
maintain policies and procedures designed to promote and achieve compliance with such laws.
|
4.7
|
Tax compliance
|
4.7.9
|
Each Obligor and each other Group Member shall pay and discharge all Taxes imposed upon it or its assets within the time allowed by law without incurring penalties unless and only to the extent that:
|
(e)
|
such payment is being contested in good faith;
|
(f)
|
adequate reserves are being maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Agent under clause 19.1 (
Financial statements
); and
|
(g)
|
such payment can be lawfully withheld.
|
4.7.10
|
Except as approved by the Majority Lenders, each Bareboat Charterer shall maintain its residence for Tax purposes in the jurisdiction in which it is incorporated and ensure that it is not resident for Tax purposes in any other jurisdiction.
|
4.8
|
Change of business
|
4.9
|
Merger and corporate reconstruction
|
(a)
|
no Obligor will enter into any amalgamation, demerger, merger, consolidation, redomiciliation, legal migration or corporate reconstruction; and
|
(b)
|
no Obligor will change its corporate structure and the Parent will remain a master limited partnership,
|
4.10
|
Further assurance
|
4.10.6
|
Each Obligor shall promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Agent may reasonably specify (and in such form as the Agent may reasonably require):
|
(h)
|
to perfect the Security Interests created or intended to be created by that Obligor under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other security over all or any of the assets which are, or are intended to be, the subject of the Security Documents) or for the exercise of any rights, powers and remedies of the Security Agent provided by or pursuant to the Finance Documents or by law;
|
(i)
|
to confer on the Security Agent Security Interests over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security Interest intended to be conferred by or pursuant to the Security Documents;
|
(j)
|
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Security Documents; and/or
|
(k)
|
to facilitate the accession by a New Lender to any Security Document following an assignment in accordance with clause 32.1 (
Assignments by the Lenders
).
|
4.10.7
|
Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security Interest conferred or intended to be conferred on the Security Agent by or pursuant to the Finance Documents.
|
4.11
|
Negative pledge in respect of Charged Property
|
4.12
|
Environmental matters
|
4.12.4
|
The Agent will be notified as soon as reasonably practicable of any Environmental Claim being made against any Group Member or any Fleet Vessel which, if successful to any extent, might have a Material Adverse Effect and of any Environmental Incident which may give rise to such a claim and will be kept regularly and promptly informed in reasonable detail of the nature of, and response to, any such Environmental Incident and the defence to any such claim.
|
4.12.5
|
Environmental Laws (and any consents, licences or approvals obtained under them) applicable to Fleet Vessels will not be violated in a way which might have a Material Adverse Effect.
|
5
|
Dealings with the Ships
|
5.1
|
Ship's name and registration
|
(a)
|
The Ship's name shall only be changed after prior notice to the Agent and, the Borrower shall promptly take all necessary steps to update all applicable insurance, class and registration documents with such change of name.
|
(b)
|
The Ship shall be permanently registered in the name of the relevant Owner with the relevant Registry under the laws of its Flag State. Except with approval of the Lenders, the Ship shall not be registered under any other flag or at any other port or fly any other flag (other than that of its Flag State), provided that no such approval shall be required for the registration of a Ship under the flag of another Approved Flag State as long as replacement Security Interests are granted in respect of that Ship (which are, in the opinion of the Lenders, equivalent to those in place prior to such registration) in favour of the Security Agent immediately following the registration of such ship under the flag of that Approved Flag State. If a registration is for a limited period, it shall be renewed at least 45 days before the date it is due to expire and the Agent shall be notified of that renewal at least 30 days before that date.
|
(c)
|
Nothing will be done and no action will be omitted if that might result in such registration being forfeited or imperilled or the Ship being required to be registered under the laws of another state of registry.
|
5.2
|
Sale or other disposal of a Ship
|
5.3
|
Manager
|
5.4
|
Copy of Mortgage on board
|
5.5
|
Notice of Mortgage
|
5.6
|
Conveyance on default
|
5.7
|
Chartering
|
5.7.6
|
Except with approval of the Lenders (which approval shall not be unreasonably withheld or delayed),
the relevant Owner shall not enter into any charter commitment for the Ship (except for the Ship's Time Charter, Bareboat Charter, Lease Agreement or Standby Lease), which is:
|
(a)
|
a bareboat or demise charter or passes possession and operational control of the Ship to another person;
|
(b)
|
capable of lasting more than 13 calendar months;
|
(c)
|
on terms as to payment or amount of hire which are materially less beneficial to it than the terms which at that time could reasonably be expected to be obtained on the open market for vessels of the same age and type as the Ship under charter commitments of a similar type and period; or
|
(d)
|
to another Group Member.
|
5.8
|
Lay up
|
5.9
|
Sharing of Earnings
|
5.10
|
Payment of Earnings
|
6
|
Condition and operation of the Ships
|
6.1
|
Defined terms
|
6.2
|
Repair
|
6.3
|
Modification
|
6.4
|
Removal of parts
|
6.5
|
Third party owned equipment
|
6.6
|
Maintenance of class; compliance with laws and codes
|
6.7
|
Surveys
|
6.8
|
Inspection and notice of dry-dockings
|
6.9
|
Prevention of arrest
|
6.10
|
Release from arrest
|
6.11
|
Information about the Ship
|
6.12
|
Notification of certain events
|
(d)
|
any damage to the Ship where the cost of the resulting repairs may exceed the Major Casualty Amount for such Ship;
|
(e)
|
any occurrence which may result in the Ship becoming a Total Loss;
|
(f)
|
any requisition of the Ship for hire;
|
(g)
|
any Environmental Incident involving the Ship and Environmental Claim being made in relation to such an incident;
|
(h)
|
any withdrawal or threat to withdraw any applicable operating certificate;
|
(i)
|
the issue of any operating certificate required under any applicable code;
|
(j)
|
the receipt of notification that any application for such a certificate has been refused;
|
(k)
|
any requirement or recommendation made in relation to the Ship by any insurer or the Ship's Classification Society or by any competent authority which is not, or cannot be, complied with in the manner or time required or recommended; and
|
(l)
|
any arrest or detention of the Ship or any exercise or purported exercise of a lien or other claim on the Ship or its Earnings or Insurances.
|
6.13
|
Payment of outgoings
|
6.14
|
Evidence of payments
|
(e)
|
the wages and allotments and the insurance and pension contributions of the Ship's crew are being promptly and regularly paid;
|
(f)
|
all deductions from its crew's wages in respect of any applicable Tax liability are being properly accounted for; and
|
(g)
|
the Ship's master has no claim for disbursements other than those incurred by him in the ordinary course of trading on the voyage then in progress.
|
6.15
|
Repairers' liens
|
6.16
|
Survey report
|
6.17
|
Lawful use
|
(a)
|
in any way or in any activity which is unlawful under international law or the domestic laws of any relevant country;
|
(b)
|
in carrying illicit or prohibited goods;
|
(c)
|
in a way which may make it liable to be condemned by a prize court or destroyed, seized or confiscated;
|
(d)
|
in any manner contrary to any applicable Sanctions Laws; or
|
(e)
|
if there are hostilities in any part of the world (whether war has been declared or not), in carrying contraband goods,
|
6.18
|
War zones
|
7
|
Insurance
|
7.1
|
Insurance terms
|
7.2
|
Coverage required
|
(a)
|
against fire and usual marine risks (including excess risks) and war risks (including war protection and indemnity risks and terrorism risks, piracy and confiscation risks) on an agreed value basis, for at least its minimum hull cover, provided that, in the event that part of the agreed insurable value of the Ship is insured by way of an increased value policy (or, in the case of cover under the Nordic Marine Insurance Plan, a hull interest policy), the hull and machinery marine risks policy shall be for an amount of not less than 80 per cent of the agreed insurable value, unless the relevant approved brokers or approved insurers have confirmed in writing to the Agent that such hull and machinery marine risks policy provides that the conditions for condemnation will be met when any casualty damage to the Ship is sufficiently extensive that the cost of removing and repairing the Ship exceeds the amount insured under the hull and machinery marine risks policy, in which case the hull and machinery marine risks policy shall be for an amount of not less than 66 2/3 per cent of the agreed insurable value;
|
(b)
|
against P&I risks for the highest amount then available in the insurance market for vessels of similar age, size and type as the Ship (which, in relation to liability for oil pollution, is currently $1,000,000,000);
|
(c)
|
against
loss of earnings in an amount approved by the Agent;
|
(d)
|
against such other risks and matters which the Agent notifies it that it considers reasonable for a prudent shipowner or operator to insure against at the time of that notice; and
|
(e)
|
on terms which comply with the other provisions of this clause 24.
|
7.3
|
Placing of cover
|
(c)
|
in the name of the Ship's Owner and (in the case of the Ship's hull cover) no other person (other than the Security Agent if required by it) (unless such other person is approved and, if so required by the Agent, has duly executed and delivered a first priority assignment of its interest in the Ship's Insurances to the Security Agent in an approved form and provided such supporting documents and opinions in relation to that assignment as the Agent requires);
|
(d)
|
if the Agent so requests, in the joint names of the Ship's Owner and the Security Agent (and, to the extent reasonably practicable in the insurance market, without liability on the part of the Security Agent for premiums or calls);
|
(e)
|
in dollars or another approved currency;
|
(f)
|
arranged through approved brokers or direct with approved insurers or protection and indemnity or war risks associations; and
|
(g)
|
on approved terms and with approved insurers or associations.
|
7.4
|
Deductibles
|
7.5
|
Mortgagee's insurance
|
(e)
|
a mortgagee's interest insurance cover for the benefit of the Finance Parties for an aggregate amount up to 120 per cent of the Available Facility and a mortgagee’s additional perils (pollution risks) cover for the benefit of the Finance Parties if a Ship enters US Waters for at least that Ship’s minimum hull cover; and
|
(f)
|
any other insurance cover which the Agent reasonably requires in respect of any Finance Party's interests and potential liabilities (whether as mortgagee of the Ship or beneficiary of the Security Documents), provided that the taking out of such cover is in accordance with the then current market practice within the shipping finance industry for ships of the type of the Ships.
|
7.6
|
Fleet liens, set off and cancellations
|
(c)
|
set off against any claims in respect of the Ship any premiums due in respect of any of such other vessels insured (other than other Ships); or
|
(d)
|
cancel that cover because of non-payment of premiums in respect of such other vessels,
|
7.7
|
Payment of premiums
|
7.8
|
Details of proposed renewal of Insurances
|
7.9
|
Instructions for renewal
|
7.10
|
Confirmation of renewal
|
7.11
|
P&I guarantees
|
7.12
|
Insurance documents
|
7.13
|
Letters of undertaking
|
7.14
|
Insurance Notices and Loss Payable Clauses
|
7.15
|
Insurance correspondence
|
7.16
|
Qualifications and exclusions
|
7.17
|
Independent report
|
7.17.3
|
If the Agent asks the Borrower for a detailed report from an approved independent firm of marine insurance brokers giving their opinion on the adequacy of the Ship's Insurances then the Agent shall be provided promptly with such a report.
|
7.17.4
|
The following such reports shall be provided at no cost to the Agent or (if the Agent obtains such a report itself) the Borrower shall reimburse the Agent for the cost of obtaining that report:
|
(a)
|
as required pursuant to paragraph 6(a) of the conditions precedent set out in Part 2 of Schedule 3 (
Conditions precedent
);
|
(b)
|
one further such report following any material change (in the opinion of the Agent acting on the instructions of the Lenders (acting reasonably)) to the Ship's Insurances; or
|
(c)
|
any further such reports requested at any time during which a Default has occurred and is continuing.
|
7.17.5
|
The cost of any reports requested by the Agent under clause 24.17.1 in excess of those for the account of the Borrower under clause 24.17.2 shall be for the account of the Agent but the Borrower shall nonetheless provide the Agent with such information as it requires in order to obtain such a report.
|
7.18
|
Collection of claims
|
7.19
|
Employment of Ship
|
7.20
|
Declarations and returns
|
7.21
|
Application of recoveries
|
7.22
|
Settlement of claims
|
7.23
|
Change in insurance requirements
|
8
|
Minimum security value
|
8.1
|
Valuation of assets
|
8.2
|
Valuation frequency
|
8.3
|
Expenses of valuation
|
(h)
|
one set of valuations of each Ship per calendar year (which shall not include the costs and expenses of providing any valuations required under clause 4 (
Conditions of Utilisation
) which shall also be for the account of the Borrower);
|
(i)
|
in addition to those referred to in (a) above, any sets of valuations carried out at any time when an Event of Default has occurred and is continuing;
|
(j)
|
in addition to those referred to in (a) above, any sets of valuations required pursuant to the terms of clause 7.8 (
Sale or Total Loss
) which valuations must be carried out not more than 30 days prior to the relevant event under the terms of 7.8 (
Sale or Total Loss
);
|
(k)
|
in addition to those referred to in (a) above, any sets of valuations required pursuant to the terms of clause 30.21 (
Charter termination
) which valuations must be carried out not more than 30 days prior to the relevant event under the terms of 30.21 (
Charter termination
);
|
(l)
|
in addition to those referred to in (a) above, any sets of valuations requested by the Agent (acting on the instructions of the Majority Lenders) in connection with any Utilisation (other than in respect of a Rollover Loan) and carried out not more than 30 days prior to the Utilisation Date for such Utilisation.
|
8.4
|
Valuations procedure
|
8.5
|
Currency of valuation
|
8.6
|
Basis of valuation
|
(m)
|
without physical inspection (unless required by the Agent);
|
(n)
|
on the basis of a sale for prompt delivery for a price payable in full in cash on delivery at arm's length on normal commercial terms between a willing buyer and a willing seller; and
|
(o)
|
without taking into account the benefit or the burden of any charter commitment.
|
8.7
|
Information required for valuation
|
8.8
|
Approval of valuers
|
8.9
|
Appointment of valuers
|
8.10
|
Number of valuers
|
8.11
|
Differences in valuations
|
8.12
|
Security shortfall
|
(p)
|
provide additional security over other assets approved by the Majority Lenders in accordance with this clause 25; and/or
|
(q)
|
cancel part of the Available Facility under clause 7.5 (
Voluntary cancellation
) and prepay the required amount on five Business Days' notice such prepayment to be applied against the Term Loan and the Revolving Loan on a pro rata basis.
|
8.13
|
Creation of additional security
|
(a)
|
that additional security, its value and the method of its valuation have been approved by the Lenders;
|
(b)
|
a Security Interest over that security has been constituted in favour of the Security Agent or (if appropriate) the Finance Parties in an approved form and manner;
|
(c)
|
this Agreement has been unconditionally amended in such manner as the Agent requires in consequence of that additional security being provided; and
|
(d)
|
the Agent, or its duly authorised representative, has received such documents and evidence it may reasonably require in relation to that amendment and additional security including documents and evidence of the type referred to in Schedule 3 in relation to that amendment and additional security and its execution and (if applicable) registration.
|
9
|
Chartering undertakings
|
9.1
|
Variations
|
9.2
|
Releases and waivers
|
9.3
|
Termination by relevant Owner or Bareboat Charterer
|
9.4
|
Charter performance
|
9.5
|
Notice of assignment
|
9.6
|
Payment of Charter Earnings
|
9.7
|
Enforcement of charter assignment
|
9.8
|
Assignment by Bareboat Charterer
|
9.9
|
Sub-chartering
|
9.10
|
Performance of other undertakings
|
9.11
|
Bareboat Charterer's manager
|
9.12
|
Bareboat Charterer's loss of earnings insurance
|
10
|
Bank accounts
|
10.1
|
Earnings Account
|
10.1.11
|
An Obligor or all of the Obligors jointly shall be the holder(s) of one or more Accounts with the Account Bank which is designated as an "
Earnings Account
" for the purposes of the Finance Documents.
|
10.1.12
|
The Earnings of the Ships (other than amounts in Brazilian real in respect of Ship E and Ship F paid to the Brazilian Accounts) and all moneys payable to the relevant Owner and/or (if applicable) the relevant Bareboat Charterer under the Ship's Insurances and any net amount payable to the Borrower under any Hedging Contract shall be paid by the persons from whom they are due or, if applicable, paid by the Owner and/or (if applicable) the relevant Bareboat Charterer or the Borrower receiving the same, to an Earnings Account unless required to be paid to the Security Agent under the relevant Finance Documents.
|
10.1.13
|
The relevant Account Holder(s) shall not withdraw amounts standing to the credit of an Earnings Account except as permitted by clauses 27.1.4 and 27.1.5.
|
10.1.14
|
If there is no continuing Default or Event of Default and subject as otherwise prohibited under this Agreement, the Borrower shall be entitled to deal freely with amounts standing to the credit of any Earnings Accounts for which it is the Account Holder.
|
10.1.15
|
If there is no continuing Default or Event of Default, the Bareboat Charterers and Owners may withdraw the following amounts from an Earnings Account:
|
(a)
|
payments then due to Finance Parties under the Finance Documents (other than payments due in respect of a prepayment unless it is a voluntary prepayment under clause 7.6 (
Voluntary prepayment
) or payments under Hedging Contracts attributable to the partial unwind of any Hedging Contract pursuant to clause 29.2 (
Unwinding of Hedging Contracts
));
|
(b)
|
payments then due under Hedging Contracts entered into to protect against the fluctuation in the rate of interest payable under the Finance Documents or the price of goods or services purchased by the relevant Owner for the purpose of operating a Ship;
|
(c)
|
payments to another Earnings Account of a Bareboat Charterer or Owner (which shall include, in relation to the Bareboat Charterers, payment of hire under the relevant Bareboat Charter to the relevant Owner);
|
(d)
|
payments of the proper costs and expenses of insuring, repairing, operating and maintaining any Ship;
|
(e)
|
payments to purchase other currencies in amounts and at times required to make payments referred to above in the currency in which they are due; and
|
(f)
|
any payments permitted under clauses 28.6 (
Disposals
), 28.10 (
Acquisitions and investments
) and 28.12 (
Distributions and other payments
)
|
10.2
|
The Borrower shall procure that amounts standing to the credit of the relevant Brazilian Account are used solely for the payment of the proper costs and expenses of repairing, operating and maintaining Ship E and Ship F. If an Event of Default has occurred and is continuing and if the Agent so requests, the Borrower shall procure that all amounts standing to the credit of the relevant Brazilian Account are transferred to a Bareboat Charterer Earnings Account held by the Bareboat Charterer in respect of Ship E or Ship F (as applicable).
|
10.3
|
Other provisions
|
10.3.2
|
An Account may only be designated for the purposes described in this clause 27 if:
|
(d)
|
such designation is made in writing by the Agent and acknowledged by the Borrower and specifies the name and address of the Account Bank and the number and any designation or other reference attributed to the Account;
|
(e)
|
an Account Security has been duly executed and delivered by the
relevant Account Holder in favour of the Security Agent;
|
(f)
|
any notice required by the Account Security to be given to the Account Bank has been given to, and acknowledged by, the Account Bank in the form required by the relevant Account Security; and
|
(g)
|
the Agent, or its duly authorised representative, has received such documents and evidence it may require in relation to the Account and the Account Security including documents and evidence of the type referred to in Schedule 3 in relation to the Account and the relevant Account Security.
|
10.3.3
|
The rates of payment of interest and other terms regulating any Account will be a matter of separate agreement between the relevant Account Holder(s) and the Account Bank. If an Account is a fixed term deposit account, the relevant Account Holder(s) may select the terms of deposits until the relevant Account Security has become enforceable and the Security Agent directs otherwise.
|
10.3.4
|
The
relevant Account Holder(s) shall not close any Account or alter the terms of any Account from those in force at the time it is designated for the purposes of this clause 27 or waive any of its rights in relation to an Account except with approval (which approval, except in the case of a closure of an Account, shall not be unreasonably withheld or delayed).
|
10.3.5
|
The
relevant Account Holder(s) shall deposit with the Security Agent all certificates of deposit, receipts or other instruments or securities relating to any Account, notify the Security Agent of any claim or notice relating to an Account from any other party and provide the Agent with any other information it may request concerning any Account.
|
10.3.6
|
Each of the Agent and the Security Agent agrees that if it is the Account Bank in respect of an Account then there will be no restrictions on creating a Security Interest over that Account as contemplated by this Agreement and it shall not (except with the approval of the Majority Lenders) exercise any right of combination, consolidation or set-off which it may have in respect of that Account in a manner adverse to the rights of the other Finance Parties.
|
11
|
Business restrictions
|
11.1
|
General negative pledge
|
11.1.7
|
No Owner or Bareboat Charterer shall permit any Security Interest to exist, arise or be created or extended over all or any part of its assets.
|
11.1.8
|
Clause 28.1.1 above does not apply to any Security Interest, listed below:
|
(l)
|
those granted or expressed to be granted by any of the Security Documents;
|
(m)
|
Permitted Security Interests;
|
(n)
|
(except in relation to Charged Property) any other lien arising by operation of law in the ordinary course of trading and not as a result of any default or omission by any Owner or Bareboat Charterer.
|
11.2
|
Financial Indebtedness
|
(a)
|
Financial Indebtedness incurred under the Finance Documents and Hedging Contracts for Hedging Transactions entered into pursuant to clause 29.1
(Hedging)
;
|
(b)
|
until the first Utilisation Date, the Existing Financial Indebtedness;
|
(c)
|
(in the case of the Owners of Ship B, Ship C and Ship E), Financial Indebtedness secured pursuant to the Co-ordination Agreements;
|
(d)
|
(in the case of the Owner and the Bareboat Charterer in respect of Ship G), Financial Indebtedness secured under the Lease Documents and the L/C Documents;
|
(e)
|
Financial Indebtedness owed to another Group Member, provided that such Financial Indebtedness is subordinated in a manner acceptable to all of the Lenders;
|
(f)
|
Financial Indebtedness owed to trade creditors of the Group given in the ordinary course of its business; and
|
(g)
|
Financial Indebtedness permitted under clause 28.3 (
Guarantees
).
|
11.3
|
Guarantees
|
(r)
|
guarantees entered into under the Finance Documents;
|
(s)
|
guarantees in favour of trade creditors of the Group given in the ordinary course of its business;
|
(t)
|
(in the case of the Owners of Ship B, Ship C and Ship E), guarantees under the Co-ordination Agreements;
|
(u)
|
(in the case of the Owner and the Bareboat Charterer in respect of Ship G), guarantees under the Lease Documents and the L/C Documents; and
|
(v)
|
guarantees which are Financial Indebtedness permitted under clause 28.2 (
Financial Indebtedness
).
|
11.4
|
Lending
|
11.5
|
Bank accounts and financial transactions
|
(w)
|
maintain any current or deposit account with a bank or financial institution except for the Accounts and the Brazilian Accounts;
|
(x)
|
hold cash in any account (other than an Account and the Brazilian Accounts); or
|
(y)
|
be party to any banking or financial transaction, whether on or off balance sheet, that is not expressly permitted under this clause 28 (
Business restrictions
).
|
11.6
|
Disposals
|
(o)
|
disposals of assets made in (and on terms reflecting) the ordinary course of trading of the disposing entity;
|
(p)
|
disposals permitted by clauses 28.1 (
General negative pledge
) or 28.2 (
Financial Indebtedness
); and
|
(q)
|
the application of cash or cash equivalents in the acquisition of assets or services in the ordinary course of its business.
|
11.7
|
Chartering-in
|
11.8
|
Contracts and arrangements with Affiliates
|
11.9
|
Subsidiaries
|
11.10
|
Acquisitions and investments
|
(e)
|
capital expenditures or investments related to maintenance of a Ship in the ordinary course of its business;
|
(f)
|
acquisitions of assets in the ordinary course of business (not being new businesses or vessels);
|
(g)
|
the incurrence of liabilities in the ordinary course of its business;
|
(h)
|
any loan or credit not otherwise prohibited under this Agreement; or
|
(i)
|
pursuant to any Finance Documents or the Charter Documents to which it is party.
|
11.11
|
Reduction of capital
|
11.12
|
Distributions and other payments
|
(f)
|
declare or pay (including by way of set-off, combination of accounts or otherwise) any dividend or redeem or make any other distribution or payment (whether in cash or in specie), including any interest and/or unpaid dividends, in respect of its equity or any other share capital or any warrants for the time being in issue; or
|
(g)
|
make any payment (including by way of set-off, combination of accounts or otherwise) by way of interest, or repayment, redemption, purchase or other payment, in respect of any shareholder loan, loan stock or similar instrument;
|
12
|
Hedging Contracts
|
12.1
|
Hedging
|
12.1.7
|
If, at any time during the Facility Period, the Borrower wishes to enter into any Treasury Transaction so as to hedge all or any part of its exposure under this Agreement to interest rate fluctuations, it shall advise the Agent and the Hedging Co-ordinator in writing.
|
12.1.8
|
The Borrower agrees that it shall not enter into a speculative hedging transaction (which would include hedging transactions which are: (i) not entered into to hedge a real risk or exposure which the Borrower has or (ii) entered into by the Borrower for the main purpose of financial losses or gains) under any Treasury Transaction with a Hedging Provider.
|
12.1.9
|
Subject to clause 29.1.5, any such Treasury Transaction shall be arranged through the Hedging Co-ordinator and be concluded with a Hedging Provider on the terms of the Hedging Master Agreement with that Hedging Provider but (except with the approval of the Majority Lenders) no such Treasury Transaction shall be concluded unless:
|
(j)
|
its purpose is to hedge the Borrower's interest rate risk in relation to borrowings under this Agreement for a period exceeding 12 months expiring no later than the Final Repayment Date;
|
(k)
|
interest under such Treasury Transaction is payable at three monthly intervals;
|
(l)
|
its notional principal amount, when aggregated with the notional principal amount of any other continuing Hedging Contracts, does not and will not exceed the Loans as then scheduled to be repaid pursuant to clause 6.2; and
|
(m)
|
it is approved.
|
12.1.10
|
If and when any such Treasury Transaction has been concluded with a Hedging Provider, it shall constitute a Hedging Contract for the purposes of the Finance Documents.
|
12.1.11
|
If a reputable bank or financial institution (which is not a Hedging Provider) has agreed to enter into a Treasury Transaction to hedge all or any part of the Borrower's exposure under this Agreement to interest rate fluctuations on terms which are better than those offered by a Hedging Provider and each Hedging Provider (having been provided with full details of the terms on which such reputable bank or financial institution has agreed to enter into such a Treasury Transaction) has confirmed that it is not willing to match such terms, the Borrower shall be entitled to enter into the Treasury Transaction with that reputable bank or financial institution on those terms.
|
12.1.12
|
The Borrower shall notify the Agent of any Treasury Transaction entered into pursuant to clause 29.1.5 and clauses 29.2 to 29.8 shall apply to any such Treasury Transaction as if all references to a "Hedging Master Agreement", "Hedging Contracts" and "Hedging Transactions" were references to the equivalent documents or transactions in respect of such Treasury Transaction.
|
12.1.13
|
The Borrower shall, if requested to do so, enter into such deeds or other instruments as may be required to confer a Security Interest over the Borrower's rights under any Treasury Transaction entered into pursuant to clause 29.1.5 in favour of the Security Agent equivalent to the Security Interest conferred by the Hedging Contract Security.
|
12.2
|
Unwinding of Hedging Contracts
|
12.3
|
Variations
|
12.4
|
Releases and waivers
|
12.5
|
Assignment of Hedging Contracts by Borrower
|
12.6
|
Termination of Hedging Contracts by Borrower
|
12.7
|
Performance of Hedging Contracts by Borrower
|
12.8
|
Information concerning Hedging Contracts
|
13
|
Events of Default
|
13.1
|
Non-payment
|
13.2
|
Hedging Contracts
|
13.2.3
|
An Event of Default (as defined in any Hedging Master Agreement) has occurred and is continuing under any Hedging Contract.
|
13.2.4
|
An Early Termination Date (as defined in any Hedging Master Agreement) has occurred or been or become capable of being effectively designated under any Hedging Contract.
|
13.2.5
|
A person entitled to do so gives notice of such an Early Termination Date under any Hedging Contract except with approval or as may be required by clause 29.2
(Unwinding of Hedging Contracts
).
|
13.2.6
|
Any Hedging Contract is terminated, cancelled, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect for any reason except with approval or as may be required by clause 29.2
(Unwinding of Hedging Contracts
).
|
13.2.7
|
No Event of Default under this clause 30.2 will occur if the failure to comply is waived by the relevant Hedging Provider under the relevant Hedging Contract or is remedied, (i) in the case of a failure to comply which relates to a non-payment, within three Business Days of the due date or (ii) in the case of any other failure to comply, within seven days of the earlier of (A) the relevant Hedging Provider giving notice to the Borrower and (B) the Borrower or any Finance Party becoming aware of the failure to comply.
|
13.3
|
Financial covenants
|
13.4
|
Value of security
|
13.5
|
Insurance
|
13.5.6
|
The Insurances of a Ship are not placed and kept in force in the manner required by clause 24 (
Insurance
).
|
13.5.7
|
Any insurer either:
|
(a)
|
cancels any such Insurances; or
|
(b)
|
disclaims liability under them by reason of any mis-statement or failure or default by any person.
|
13.6
|
Other obligations
|
13.6.4
|
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in clauses 30.1 (
Non-payment
), 30.2 (
Hedging Contracts
), 30.3 (
Financial covenants
), 30.4 (
Value of security
), 30.5 (
Insurance
) and 30.20 (
Sanctions
)).
|
13.6.5
|
No Event of Default under clause 30.6.1 above will occur if the Agent (acting on the instructions of the Majority Lenders) considers that the failure to comply is capable of remedy and the failure is remedied within ten Business Days of the earlier of (A) the Agent giving notice to the Borrower and (B) the Borrower becoming aware of the failure to comply.
|
13.7
|
Misrepresentation
|
13.8
|
Cross default
|
13.8.2
|
Any Financial Indebtedness of any Group Member is not paid when due nor within any originally applicable grace period.
|
13.8.3
|
Any Financial Indebtedness of any Group Member is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
13.8.4
|
Any commitment for any Financial Indebtedness of any Group Member is cancelled or suspended by a creditor of that Group Member as a result of an event of default (however described).
|
13.8.5
|
The counterparty to a Treasury Transaction entered into by any Group Member becomes entitled to terminate that Treasury Transaction early by reason of an event of default (however described).
|
13.8.6
|
Any creditor of any Group Member becomes entitled to declare any Financial Indebtedness of that Group Member due and payable prior to its specified maturity as a result of an event of default (however described).
|
13.8.7
|
No Event of Default will occur under this clause 30.8 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within clauses 30.8.1 to 30.8.5 above is less than $10,000,000 (or its equivalent in any other currency or currencies).
|
13.9
|
Insolvency
|
13.9.1
|
A Group Member is unable or admits inability to pay its debts as they fall due, is deemed to, or is declared to, be unable to pay its debts under applicable law, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness.
|
13.9.2
|
The value of the assets of any Group Member is less than its liabilities (taking into account contingent and prospective liabilities).
|
13.9.3
|
A moratorium is declared in respect of any indebtedness of any Group Member. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.
|
13.10
|
Insolvency proceedings
|
13.10.2
|
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
(c)
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Group Member other than a solvent liquidation or reorganisation of any Group Member which is not an Obligor;
|
(d)
|
a composition, compromise, assignment or arrangement with any creditor of any Group Member;
|
(e)
|
the appointment of a liquidator (other than in respect of a solvent liquidation of a Group Member which is not an Obligor), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any Group Member or any of its assets (including the directors of any Group Member requesting a person to appoint any such officer in relation to it or any of its assets); or
|
(f)
|
enforcement of any Security Interest over any assets of any Group Member,
|
13.10.3
|
Clause 30.10.1 shall not apply to any winding-up petition (or analogous procedure or step) which is frivolous or vexatious and is discharged, stayed or dismissed within seven days of commencement or, if earlier, the date on which it is advertised.
|
13.11
|
Creditors' process
|
13.11.6
|
Any expropriation, attachment, sequestration, execution or any other analogous process or enforcement action affects any asset or assets of any Group Member and is not discharged within seven days.
|
13.11.7
|
Any judgment or order for an amount is made against any Group Member and is not stayed or complied with within seven days.
|
13.11.8
|
No Event of Default will occur under this clause 30.11 if, in relation to clause 30.11.1 above, the value of such asset or assets is or, in relation to clause 30.11.2 above, such amount is less than $10,000,000 (or its equivalent in any other currency or currencies).
|
13.12
|
Cessation of business
|
13.13
|
Repudiation and rescission of Finance Documents
|
13.14
|
Litigation
|
13.15
|
Material Adverse Effect
|
13.16
|
Security enforceable
|
13.17
|
Arrest of Ship
|
13.18
|
Ship registration
|
13.19
|
Political risk
|
13.20
|
Sanctions
|
13.20.1
|
A Relevant Party or a director, officer, employee of a Relevant Party is or becomes a Restricted Party and either (a) in the reasonable opinion of the Lenders the situation cannot be remedied within 30 days or (b) if the situation can be remedied within 30 days, without being contrary to any law or regulation, such action as the Majority Lenders may require shall not have been taken within 30 days of the Agent notifying the Borrower of such required action.
|
13.20.2
|
The Borrower does not comply with clause 19.6 (
Information: sanctions
), clause 21.2 (
Use of proceeds
), clause 21.4.2(a) (
Compliance with laws
) (in so far as it relates to Sanctions Laws) or clause 21.5 (
Sanctions
).
|
13.21
|
Charter termination
|
13.21.1
|
Except with approval:
|
(a)
|
the Time Charter of any Ship is cancelled or rescinded or (except as a result of it being a Total Loss) frustrated; or
|
(b)
|
a Ship is withdrawn from service under the relevant Time Charter before the time that Time Charter was scheduled to expire and is not returned to service within 30 days.
|
13.21.2
|
No Event of Default under clause 30.21.1 above will occur in relation to a Time Charter if, as soon as possible after such cancellation, rescission, frustration or withdrawal (and in any event within 90 days of such cancellation, rescission, frustration or withdrawal), the following conditions are satisfied:
|
(a)
|
in the case of Ship F, the Borrower prepays the Facilities in an amount equal to 40 per cent of the aggregate of the Available Facility and the Loans in accordance with the provisions of clause 7.10 (
Restrictions
) and the Total Commitments are reduced accordingly; or
|
(b)
|
in the case of any Ship other than Ship F:
|
(i)
|
the Borrower prepays the Facilities (in accordance with the provisions of clause 7.10 (
Restrictions
)) in an amount equal to the greater of:
|
A)
|
the amount which would be payable under the provisions of clause 7.8.1 (
Sale or Total Loss
); or
|
B)
|
the early termination fee payable as a result of the early termination of the relevant Time Charter (the
Terminated Charter
); or
|
(ii)
|
the Borrower provides additional security over other assets approved by the Majority Lenders acting reasonably in accordance with the requirements set out in clause 25.13 (
Creation of additional security
), it being agreed that cash collateral provided in dollars shall be acceptable to the Lenders, and shall be valued at par; or
|
(iii)
|
the relevant Owner or Bareboat Charterer (as applicable) has entered into an approved charter commitment (a
Replacement Charter
) in respect of the relevant Ship:
|
A)
|
with a charterer that has substantially the same or a higher credit rating than the previous charterer under the Terminated Charter;
|
B)
|
at a charter rate which is the same or higher than the charter rate included in the Terminated Charter;
|
C)
|
for a term which is the same or longer than the term included in the Terminated Charter; and
|
D)
|
on terms which are otherwise acceptable to the Agent (acting on the instructions of the Majority Lenders).
|
13.22
|
Termination Notice
|
13.23
|
Acceleration
|
(a)
|
cancel the Total Commitments at which time they shall immediately be cancelled; and/or
|
(b)
|
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, at which time they shall become immediately due and payable; and/or
|
(c)
|
declare that all or part of the Loans be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; and/or
|
(d)
|
declare that no withdrawals be made from any Account; and/or
|
(e)
|
exercise or direct the Security Agent and/or any other beneficiary of the Security Documents to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.
|
14
|
Position of Hedging Providers
|
14.1
|
Rights of Hedging Providers
|
14.2
|
No voting rights
|
14.3
|
Acceleration and enforcement of security
|
14.4
|
Close out of Hedging Contracts
|
14.4.8
|
No Hedging Provider shall be entitled to terminate or close out any Hedging Contract or any Hedging Transaction under it prior to its stated maturity except:
|
(g)
|
if, following the occurrence of any Event of Default or Termination Event (as each such expression is defined in the Hedging Master Agreements), the relevant Hedging Provider is entitled to terminate or close out the relevant Hedging Transaction pursuant to the relevant Hedging Contract.; or
|
(h)
|
if the Agent takes any action under clause 30.21; or
|
(i)
|
if the Loans and other amounts outstanding under the Finance Documents (other than amounts outstanding under the Hedging Contracts) have been repaid by the Borrower in full.
|
14.4.9
|
If there is a net amount payable to the Borrower under a Hedging Transaction or a Hedging Contract upon its termination and close out, the relevant Hedging Provider shall forthwith pay that net amount (together with interest earned on such amount) to the Security Agent for application in accordance with clause 34.25.1 (
Order of application
).
|
14.4.10
|
If a Default has occurred and is continuing and there is a net amount payable to a Hedging Provider under a Hedging Transaction or a Hedging Contract upon its termination and close out, the Borrower shall forthwith pay that net amount (together with interest earned on such amount) to the Agent for application in accordance with clause 38.5 (
Partial payments
).
|
14.4.11
|
No Hedging Provider (in any capacity) shall set-off any such net amount against or exercise any right of combination in respect of any other claim it has against the Borrower.
|
1
|
Changes to the Lenders
|
1.14
|
Assignments by the Lenders
|
1.15
|
Conditions of assignment
|
1.15.4
|
The consent of the Borrower is required for an assignment by a Lender, unless (a) the assignment is to another Lender or an Affiliate of a Lender and the Borrower will not, immediately following such assignment, be under an increased obligation under clauses 12 (
Tax gross-up and indemnities
) and 13 (
Increased costs
) solely as a result of such assignment or (b) an Event of Default is continuing. The Agent will immediately advise the Borrower of the assignment.
|
1.15.5
|
The Borrower's consent to an assignment may not be unreasonably withheld or delayed and will be deemed to have been given 5 Business Days after the Lender has requested consent unless consent is expressly refused within that time.
|
1.15.6
|
No assignment may be made to a New Lender if an Insolvency Event has occurred and is, at the time of the proposed transfer, continuing in relation to that New Lender.
|
1.15.7
|
An assignment will only be effective:
|
(h)
|
on receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the Borrower and the other Finance Parties as it would have been under if it was an Original Lender;
|
(i)
|
on the New Lender entering into any documentation required for it to accede as a party to any Security Document to which the Original Lender is a party in its capacity as a Lender and, in relation to such Security Documents, completing any filing, registration or notice requirements;
|
(j)
|
on the performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations relating to any person that it is required to carry out in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender; and
|
(k)
|
if that Existing Lender assigns equal fractions of its Commitments and participation in the Loans and each Utilisation (if any) under the Facility.
|
1.15.8
|
Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with the Finance Documents on or prior to the date on which the assignment becomes effective in accordance with the Finance Documents and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
1.16
|
Fee
|
1.17
|
Limitation of responsibility of Existing Lenders
|
1.17.6
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(g)
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
(h)
|
the financial condition of any Obligor;
|
(i)
|
the performance and observance by any Obligor or any other person of its obligations under the Finance Documents or any other documents;
|
(j)
|
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents; or
|
(k)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
1.17.7
|
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
(j)
|
has made (and shall continue to make) its own independent investigation and assessment of:
|
(i)
|
the financial condition and affairs of the Obligors and their related entities in connection with its participation in this Agreement; and
|
(ii)
|
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents;
|
(k)
|
will continue to make its own independent appraisal of the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents; and
|
(l)
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
1.17.8
|
Nothing in any Finance Document obliges an Existing Lender to:
|
(a)
|
accept a re-assignment from a New Lender of any of the rights assigned under this clause 32 (
Changes to the Lenders
); or
|
(b)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or by reason of the application of any Basel II Regulation to the transactions contemplated by the Finance Documents or otherwise.
|
1.18
|
Procedure for assignment
|
1.18.2
|
Subject to the conditions set out in clause 32.2 (
Conditions of assignment
)
an assignment may be effected in accordance with clause 32.5.4 below when (a) the Agent executes an otherwise duly completed Transfer Certificate and (b) the Agent executes any document required under clause 32.2.4 which it may be necessary for it to execute in each case delivered to it by the Existing Lender and the New Lender duly executed by them and, in the case of any such other document, any other relevant person. The Agent shall, subject to clause 32.5.2, as soon as reasonably practicable after receipt by it of a Transfer Certificate and any such other document each duly completed, appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate and such other document.
|
1.18.3
|
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
1.18.4
|
The Obligors and the other Finance Parties irrevocably authorise the Agent to execute any Transfer Certificate on their behalf without any consultations with them.
|
1.18.5
|
On the Transfer Date:
|
(l)
|
the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the Transfer Certificate;
|
(m)
|
the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the
Relevant Obligations
) and expressed to be the subject of the release in the Transfer Certificate (but the obligations owed by the Obligors under the Finance Documents shall not be released); and
|
(n)
|
the New Lender shall become a Party to the Finance Documents as a "Lender" for the purposes of all the Finance Documents and will be bound by obligations equivalent to the Relevant Obligations.
|
1.18.6
|
Lenders may utilise procedures other than those set out in this clause 32.5
(Procedure for assignment)
to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with clauses 32.5
(Procedure for assignment)
to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in clause 32.2
(Conditions of assignment)
.
|
1.19
|
Copy of Transfer Certificate to Borrower
|
1.20
|
Security over Lenders' rights
|
(o)
|
any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and
|
(p)
|
in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, except that no such charge, assignment or Security Interest shall:
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or
|
(ii)
|
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
|
1.21
|
Disclosure of information
|
1.21.4
|
Any Lender may disclose to any of its Affiliates and to any other person:
|
(c)
|
to (or through) whom that Lender assigns (or may potentially assign) all or any of its rights and obligations under the Finance Documents;
|
(d)
|
with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, the Finance Documents or any Obligor; or
|
(e)
|
to whom, and to the extent that, information is required to be disclosed by any applicable law, regulation or request of any regulatory or governmental authority or central bank,
|
1.21.5
|
In relation to clauses 32.8.1(a) and (b) above, the relevant Lender shall procure that the recipient of any information about any Obligor, the Group and the Finance Documents, will enter into a confidentiality undertaking with the relevant Lender.
|
1.21.6
|
Any Finance Party may disclose to a rating agency, to a numbering service provider or its professional advisers or (with the consent of the Borrowers) any other person, any information about any Obligor, the Group and the Finance Documents as that Finance Party shall consider appropriate.
|
1.21.7
|
The Agent and the Arrangers each may, at their own expense, publish information about their participation in, or agency or arrangement in respect of, the Facilities and, for such purposes, to use the Borrower's and/or the Obligors' logo and trademark in connection with such publication.
|
2
|
Changes to the Obligors
|
2.7
|
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
|
1
|
Roles of Agent, Security Agent and Arranger
|
1.8
|
Appointment of the Agent
|
1.8.16
|
Each other Finance Party (other than the Security Agent) appoints the Agent to act as its agent under and in connection with the Finance Documents.
|
1.8.17
|
Each such other Finance Party authorises the Agent:
|
(d)
|
to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions; and
|
(e)
|
to execute each of the Security Documents and all other documents that may be approved by the Majority Lenders for execution by it.
|
1.8.18
|
The Agent accepts its appointment under clause 34.1.1 as agent for the Finance Parties (for so long as they are Finance Parties) on and subject to the terms of this clause 34, and any Finance Documents to which it is a Party.
|
1.9
|
Instructions to Agent
|
1.9.9
|
The Agent shall:
|
(z)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:
|
(i)
|
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(ii)
|
in all other cases, the Majority Lenders; and
|
(aa)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (a) above.
|
1.9.10
|
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Agent may refrain from acting unless and until it receives those instructions or that clarification.
|
1.9.11
|
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties save for the Security Agent.
|
1.9.12
|
The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
|
1.9.13
|
In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
1.9.14
|
The Agent is not authorised to act on behalf of a Lender or any Hedging Provider (without first obtaining that Lender's or any Hedging Provider's consent) in any legal or arbitration proceedings relating to any Finance Document. This clause 34.2.6 shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Security Documents.
|
1.10
|
Duties of the Agent
|
1.10.14
|
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
1.10.15
|
The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
1.10.16
|
Without prejudice to clause 32.6 (
Copy of Transfer Certificate to Borrower
), clause 34.3.1 shall not apply to any Transfer Certificate.
|
1.10.17
|
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
1.10.18
|
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
1.10.19
|
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or an Arranger or the Security Agent for their own account) under this Agreement it shall promptly notify the other Finance Parties.
|
1.10.20
|
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
1.11
|
Role of the Arrangers, Bookrunners, Global Co-ordinator and Hedging Co-ordinator
|
1.12
|
No fiduciary duties
|
1.12.8
|
Nothing in this Agreement constitutes the Agent, the Arrangers, the Bookrunners, the Global Co-ordinator or the Hedging Co-ordinator as a trustee or fiduciary of any other person.
|
1.12.9
|
None of the Agent, the Security Agent, the Arrangers, the Bookrunners, the Global Co-ordinator and the Hedging Co-ordinator shall be bound to account to any Lender or any Hedging Provider for any sum or the profit element of any sum received by it for its own account or have any obligations to the other Finance Parties beyond those expressly stated in the Finance Documents.
|
1.13
|
Business with the Group
|
1.14
|
Rights and discretions of the Agent
|
1.14.9
|
The Agent may
|
(m)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(n)
|
assume that:
|
(i)
|
any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and
|
(ii)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(o)
|
rely on a certificate from any person:
|
(iii)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(iv)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
1.14.10
|
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the other Finance Parties) that:
|
(f)
|
no Default has occurred (unless it has actual knowledge of a Default arising under clause 30.1 (
Non-payment
));
|
(g)
|
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and
|
(h)
|
any notice or request made by the Borrower (other than a Utilisation Request or Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
1.14.11
|
The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts in the conduct of its obligations and responsibilities under the Finance Documents.
|
1.14.12
|
Without prejudice to the generality of clause 34.7.3 or clause 34.7.5, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be desirable.
|
1.14.13
|
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
1.14.14
|
The Agent may act in relation to the Finance Documents through its officers, employees and agents and the Agent shall not:
|
(a)
|
be liable for any error of judgment made by any such person; or
|
(b)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part, of any such person,
|
1.14.15
|
Unless a Finance Document expressly provides otherwise, the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
1.14.16
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent, nor any Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. The Agent and any Arranger may do anything which in its opinion, is necessary or desirable to comply with any law or regulation of any jurisdiction.
|
1.14.17
|
Without prejudice to the generality of clause 34.7.8, the Agent may (but is not obliged) disclose the identity of a Defaulting Lender to the other Finance Parties and the Borrower and the Agent shall disclose the same upon the written request of the Majority Lenders.
|
1.14.18
|
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
1.14.19
|
Neither the Agent nor any Arranger shall be obliged to request any certificate, opinion or other information under clause 19 (
Information undertakings
) unless so required in writing by a Lender or any Hedging Provider, in which case the Agent shall promptly make the appropriate request of the Borrower if such request would be in accordance with the terms of this Agreement.
|
1.15
|
Responsibility for documentation and other matters
|
(a)
|
the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, any Arranger, an Obligor or any other person given in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or of any representations in any Finance Document or of any copy of any document delivered under any Finance Document;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any Charter Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or any Charter Document;
|
(c)
|
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents;
|
(d)
|
any loss to the Trust Property arising in consequence of the failure, depreciation or loss of any Charged Property or any investments made or retained in good faith or by reason of any other matter or thing;
|
(e)
|
accounting to any person for any sum or the profit element of any sum received by it for its own account;
|
(f)
|
the failure of any Obligor or any other party to perform its obligations under any Finance Document or any Charter Document or the financial condition of any such person;
|
(g)
|
ascertaining whether all deeds and documents which should have been deposited with it
(or the Security Agent) under or pursuant to any of the Security Documents have been so deposited;
|
(h)
|
investigating or making any enquiry into the title of any Obligor to any of the Charged Property or any of its other property or assets;
|
(i)
|
failing to register any of the Security Documents with the Registrar of Companies or any other public office;
|
(j)
|
failing to register any of the Security Documents in accordance with the provisions of the documents of title of any Obligor to any of the Charged Property;
|
(k)
|
failing to take or require any Obligor to take any steps to render any of the Security Documents effective as regards property or assets outside England or Wales or to secure the creation of any ancillary charge under the laws of the jurisdiction concerned;
|
(l)
|
(unless it is the same entity as the Security Agent) the Security Agent and/or any other beneficiary of a Security Document failing to perform or discharge any of its duties or obligations under the Security Documents; or
|
(m)
|
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by any applicable law or regulation relating to insider dealing or otherwise.
|
1.16
|
No duty to monitor
|
(i)
|
whether or not any Default has occurred;
|
(j)
|
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
(k)
|
whether any other event specified in any Finance Document has occurred.
|
1.17
|
Exclusion of liability
|
1.17.7
|
Without limiting clause 34.10.2 (and without prejudice to any other provision of the Finance Documents excluding or limiting the liability of the Agent) the Agent will not be liable (including, without limitation, for negligence or any other category of liability whatsoever) for:
|
(l)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Charged Property, unless directly caused by its gross negligence, wilful misconduct or fraudulent behaviour;
|
(m)
|
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Charged Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Charged Property unless directly caused by its gross negligence, wilful misconduct or fraudulent behaviour; or
|
(n)
|
without prejudice to the generality of paragraphs (a) and (b) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(v)
|
any act, event or circumstance not reasonably within its control; or
|
(vi)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
1.17.8
|
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this clause subject to clause 1.3
(Third party rights)
and the provisions of the Third Parties Act.
|
1.17.9
|
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.
|
1.17.10
|
Nothing in this Agreement shall oblige the Agent or any Arrangers to carry out
|
(a)
|
any "know your customer" or other checks in relation to any person; or
|
(b)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender,
|
1.17.11
|
Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability, any liability of the Agent arising under or in connection with any Finance Document or the Charged Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
|
1.18
|
Lenders' indemnity to the Agent
|
1.18.8
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three Business Days of demand, against:
|
(n)
|
any Losses for negligence or any other category of liability whatsoever incurred by such Lenders' Representative in the circumstances contemplated pursuant to clause 38.10 (
Disruption to payment systems etc
) notwithstanding the Agent's negligence, gross negligence, or any other category of liability whatsoever but not including any claim based on the fraud of the Agent); and
|
(o)
|
any other Losses (otherwise than by reason of the Agent's gross negligence or wilful misconduct) including the costs of any person engaged in accordance with clause 34.7.3 (
Rights and discretions of the Agent
) and any Receiver in acting as its agent under the Finance Documents,
|
1.18.9
|
Subject to clause 34.11.3, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Agent pursuant to clause 34.11.1.
|
1.18.10
|
Clause 34.11.2 shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Agent to an Obligor.
|
1.19
|
Resignation of the Agent
|
1.19.4
|
The Agent may resign and appoint one of its Affiliates as successor by giving notice to the Lenders each Hedging Provider, the Security Agent and the Borrower.
|
1.19.5
|
Alternatively the Agent may resign by giving 30 days notice to the other Finance Parties and the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint a successor Agent.
|
1.19.6
|
If the Majority Lenders have not appointed a successor Agent in accordance with clause 34.12.2 above within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Borrower) may appoint a successor Agent.
|
1.19.7
|
If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under clause 34.12.3, the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree with the proposed successor Agent amendments to this clause 34 and any other term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Agent's normal fee rates and those amendments will bind the Parties.
|
1.19.8
|
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
1.19.9
|
The Agent's resignation notice shall only take effect upon the appointment of a successor.
|
1.19.10
|
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under clause 34.12.5) but shall remain entitled to the benefit of clause 14.3 (
Indemnity to the Agent and the Security Agent
) and
this clause 34 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
1.20
|
Replacement of the Agent
|
1.20.8
|
After consultation with the Borrower, the Majority Lenders may, by giving 30 days' notice to the Agent replace the Agent by appointing a successor Agent.
|
1.20.9
|
The retiring Agent shall make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
1.20.10
|
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under clause 34.13.2) but shall remain entitled to the benefit of clause 14.3 (
Indemnity to the Agent and the Security Agent
) and this clause 34 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
|
1.20.11
|
Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
1.21
|
Replacement of the Agent for FATCA withholding
|
(a)
|
the Agent fails to respond to a request under clause 12.6 (
FATCA Information
) and a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(b)
|
the information supplied by the Agent pursuant to clause 12.6 (
FATCA Information
) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(c)
|
the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
1.22
|
Confidentiality
|
1.22.1
|
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its department, division or team directly responsible for the management of the Finance Documents which shall be treated as a separate entity from any other of its divisions, departments or teams.
|
1.22.2
|
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
|
1.22.3
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor any Arranger is obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.
|
1.23
|
Relationship with the Lenders and Hedging Providers
|
1.23.3
|
The Agent may treat the person shown in its records as each Lender or as each Hedging Provider at the opening of business (in the place of the Agent's principal office as notified to the Finance Parties from time to time) as a Lender or (as the case may be) as a Hedging Provider acting through its Facility Office:
|
(p)
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
(q)
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
1.23.4
|
Each Lender and each Hedging Provider shall supply the Agent with any information that the Agent may reasonably specify as being necessary or desirable to enable the Agent or the Security Agent to perform its functions as Agent or Security Agent.
|
1.23.5
|
Each Lender and each Hedging Provider shall deal with the Security Agent exclusively through the Agent and shall not deal directly with the Security Agent.
|
1.24
|
Credit appraisal by the Lenders and Hedging Providers
|
(f)
|
the financial condition, status and nature of each Obligor and other Group Member;
|
(g)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any Charter Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or any Charter Document;
|
(h)
|
the application of any Basel II Regulation or Basel III Regulation to the transactions contemplated by the Finance Documents;
|
(i)
|
whether any Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Charged Property;
|
(j)
|
the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document or any Charter Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or any Charter Document; and
|
(k)
|
the right or title of any person in or to, or the value or sufficiency of, any part of the Charged Property, the priority of the Security Documents or the existence of any Security Interest affecting the Charged Property.
|
1.25
|
Reference Banks
|
1.26
|
Agent's management time and additional remuneration
|
1.26.4
|
Any amount payable to the Agent under clause 14.3 (
Indemnity to the Agent and the Security Agent
), clause 16 (
Costs and expenses
) and clause 34.11 (
Lenders' indemnity to the Agent
) shall include the cost of utilising the Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Agent may notify to the Borrower and the Lenders, and is in addition to any fee paid or payable to the Agent under clause 11 (
Fees
).
|
1.26.5
|
Without prejudice to clause 34.19.1, in the event of:
|
(a)
|
a Default;
|
(b)
|
the Agent being requested by an Obligor or the Majority Lenders to undertake duties which the Agent and the Borrower agree to be of an exceptional nature or outside the scope of the normal duties of the Agent under the Finance Documents; or
|
(c)
|
the Agent and the Borrower agreeing that it is otherwise appropriate in the circumstances,
|
1.26.6
|
If the Agent and the Borrower fail to agree upon the nature of the duties, or upon the additional remuneration referred to in clause 34.19.2 or whether additional remuneration is appropriate in the circumstances, any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Agent and approved by the Borrower or, failing approval, nominated (on the application of the Security Agent) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Borrower) and the determination of any investment bank shall be final and binding upon the Parties.
|
1.26.7
|
The Agent agrees that, unless an Event of Default has occurred and is continuing, all costs or remuneration required to be paid by the Borrower pursuant to this clause 34.19 shall be limited to those costs and/or remuneration which are, in the particular circumstances, reasonable.
|
1.27
|
Deduction from amounts payable by the Agent
|
1.28
|
Common parties
|
1.29
|
Security Agent
|
1.29.3
|
Each other Finance Party appoints the Security Agent to act as its agent and (to the extent permitted under any applicable law) trustee under and in connection with the Security Documents and confirms that the Security Agent shall have a lien on the Security Documents and the proceeds of the enforcement of those Security Documents for all moneys payable to the beneficiaries of those Security Documents.
|
1.29.4
|
Each other Finance Party authorises the Security Agent:
|
(c)
|
to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions; and
|
(d)
|
to execute each of the Security Documents and all other documents that may be approved by the Agent and/or the Majority Lenders for execution by it.
|
1.29.5
|
The Security Agent accepts its appointment under clause 34.22 (
Security Agent
) as trustee of the Trust Property with effect from the date of this Agreement and declares that it holds the Trust Property on trust for itself, the other Finance Parties (for so long as they are Finance Parties) on and subject to the terms set out in clauses 34.22-34.29 (inclusive) and the Security Documents to which it is a party.
|
1.30
|
Application of certain clauses to Security Agent
|
1.30.3
|
Clauses 34.7.3 (
Rights and discretions of the Agent
), 34.8 (
Re
s
ponsibility for documentation and other matters
), clause 34.9 (
No duty to monitor
), 34.10 (
Exclusion of liability
), 34.11 (
Lenders' indemnity to the Agent
), 34.12 (
Resignation of the Agent
), 34.15 (
Confidentiality
), 34.16 (
Relationship with the Lenders and Hedging Providers
), 34.17 (
Credit appraisal by the Lenders and Hedging Providers
), 34.19 (A
gent's management time and additional remuneration
) and 34.20 (
Deduction from amounts payable by the Agent
) shall each extend so as to apply to the Security Agent in its capacity as such and for that purpose each reference to the "Agent" in these clauses shall extend to include in addition a reference to the "Security Agent" in its capacity as such and, in clause 34.7.3 (
Rights and discretions of the Agent
), references to the Lenders and a group of Lenders shall refer to the Agent.
|
1.30.4
|
In addition, clause 34.12 (
Resignation of the Agent
) shall, for the purposes of its application to the Security Agent pursuant to clause 34.23.1, have the following additional sub-clause:
|
1.31
|
Instructions to Security Agent
|
1.31.3
|
The Security Agent shall:
|
(a)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Agent; and
|
(b)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (a) above.
|
1.31.4
|
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Agent as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives those instructions or that clarification.
|
1.31.5
|
Unless a contrary indication appears in a Finance Document, any instructions given to the Security Agent by the Agent shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
1.31.6
|
The Security Agent may refrain from acting in accordance with any instructions of the Agent until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
|
1.31.7
|
In the absence of instructions, the Security Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
1.31.8
|
The Security Agent is not authorised to act on behalf of a Lender or any Hedging Provider (without first obtaining that Lender's or the relevant Hedging Provider's consent) in any legal or arbitration proceedings relating to any Finance Document. This clause 34.24.6 shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Security Documents.
|
1.32
|
Order of application
|
1.32.1
|
The Security Agent agrees to apply the Trust Property and each other beneficiary of the Security Documents agrees to apply all moneys received by it in the exercise of its rights under the Security Documents in accordance with the following respective claims:
|
(e)
|
first
, as to a sum equivalent to the amounts payable to the Security Agent under the Finance Documents (excluding any amounts received by the Security Agent pursuant to clause 34.11 (
Lenders' indemnity to the Agent
) as extended to the Security Agent pursuant to clause 34.23 (
Application of certain clauses to Security Agent
)), for the Security Agent absolutely;
|
(f)
|
secondly
, as to a sum equivalent to the aggregate amount then due and owing to the other Finance Parties (other than the Hedging Providers) under the Finance Documents (other than the Hedging Contracts or any Hedging Master Agreement), for those Finance Parties absolutely for application between them in accordance with clause 38.5
(Partial payments)
;
|
(g)
|
thirdly
, until such time as the Security Agent is satisfied that all obligations owed to the Finance Parties (other than the Hedging Providers) have been irrevocably and unconditionally discharged in full, held by the Security Agent on a suspense account for payment of any further amounts owing to the Finance Parties (other than the Hedging Providers) under the Finance Documents (other than the Hedging Contracts or any Hedging Master Agreement) and further application in accordance with this clause 34.25.1 as and when any such amounts later fall due;
|
(h)
|
fourthly
, as to a sum equivalent to the aggregate amount then due and owing to the Hedging Providers under the Hedging Contracts and any Hedging Master Agreements, for those Hedging Providers absolutely for application between them in accordance with clause 38.5 (
Partial payments
);
|
(i)
|
fifthly
, until such time as the Security Agent is satisfied that all obligations owed to the Hedging Providers have been irrevocably and unconditionally discharged in full, held by the Security Agent on a suspense account for payment of any further amounts owing to the Hedging Providers under the Hedging Contracts, any Hedging Master Agreement and any other Finance Documents and further application in accordance with this clause 34.25.1 as and when any such amounts later fall due;
|
(j)
|
sixthly
, to such other persons (if any) as are legally entitled thereto in priority to the Obligors; and
|
(k)
|
seventhly
, as to the balance (if any), for the Obligors by or from whom or from whose assets the relevant amounts were paid, received or recovered or other person entitled to them.
|
1.32.2
|
The Security Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Agent
(acting on the instructions of the Agent) any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Security Agent), any other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrower or any other person liable.
|
1.32.3
|
The Security Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this clause 34.25 by paying such amounts to the Agent for distribution in accordance with clause 38 (
Payment mechanics
).
|
1.33
|
Powers and duties of the Security Agent as trustee of the security
|
(f)
|
shall, without prejudice to any of the powers, discretions and immunities conferred upon trustees by law (and to the extent not inconsistent with the provisions of this Agreement or any of the Security Documents), have all the same powers and discretions as a natural person acting as the beneficial owner of such property and/or as are conferred upon the Security Agent by this Agreement and/or any Security Document but so that the Security Agent may only exercise such powers and discretions to the extent that it is authorised to do so by the provisions of this Agreement;
|
(g)
|
shall (subject to clause 34.25.1 (
Order of application
)) be entitled (in its own name or in the names of nominees) to invest moneys from time to time forming part of the Trust Property or otherwise held by it as a consequence of any enforcement of the security constituted by any Finance Document which, in the reasonable opinion of the Security Agent, it would not be practicable to distribute immediately, by placing the same on deposit in the name or under the control of the Security Agent as the Security Agent may think fit without being under any duty to diversify the same and the Security Agent shall not be responsible for any loss due to interest rate or exchange rate fluctuations except for any loss arising from the Security Agent's gross negligence or wilful misconduct;
|
(h)
|
may, in the conduct of its obligations under and in respect of the Security Documents (otherwise than in relation to its right to make any declaration, determination or decision), instead of acting personally, employ and pay any agent (whether being a lawyer or any other person) to transact or concur in transacting any business and to do or concur in doing any acts required to be done by the Security Agent (including the receipt and payment of money) and on the basis that (i) any such agent engaged in any profession or business shall be entitled to be paid all usual professional and other charges for business transacted and acts done by him or any partner or employee of his or her in connection with such employment and (ii) the Security Agent shall not be bound to supervise, or be responsible for any loss incurred by reason of any act or omission of, any such agent if the Security Agent shall have exercised reasonable care in the selection of such agent; and
|
(i)
|
may place all deeds and other documents relating to the Trust Property which are from time to time deposited with it pursuant to the Security Documents in any safe deposit, safe or receptacle selected by the Security Agent exercising reasonable care or with any firm of solicitors or company whose business includes undertaking the safe custody of documents selected by the Security Agent exercising reasonable care and may make any such arrangements as it thinks fit for allowing Obligors access to, or its solicitors or auditors possession of, such documents when necessary or convenient and the Security Agent shall not be responsible for any loss incurred in connection with any such deposit, access or possession if it has exercised reasonable care in the selection of a safe deposit, safe, receptacle or firm of solicitors or company (save that it shall take reasonable steps to pursue any person who may be liable to it in connection with such loss).
|
1.34
|
All enforcement action through the Security Agent
|
1.34.1
|
None of the other Finance Parties shall have any independent power to enforce any of those Security Documents which are executed in favour of the Security Agent only or to exercise any rights, discretions or powers or to grant any consents or releases under or pursuant to such Security Documents or otherwise have direct recourse to the security and/or guarantees constituted by such Security Documents except through the Security Agent.
|
1.34.2
|
None of the other Finance Parties shall have any independent power to enforce any of those Security Documents which are executed in their favour or to exercise any rights, discretions or powers or to grant any consents or releases under or pursuant to such Security Documents or otherwise have direct recourse to the security and/or guarantees constituted by such Security Documents except through the Security Agent. If any Finance Party (other than the Security Agent) is a party to any Security Document it shall promptly upon being requested by the Agent to do so grant a power of attorney or other sufficient authority to the Security Agent to enable the Security Agent to exercise any rights, discretions or powers or to grant any consents or releases under such Security Document.
|
1.35
|
Co-operation to achieve agreed priorities of application
|
1.36
|
Indemnity from Trust Property
|
1.36.1
|
In respect of all liabilities, costs or expenses for which the Obligors are liable under this Agreement, the Security Agent and each Affiliate of the Security Agent and each officer or employee of the Security Agent or its Affiliate (each a
Relevant Person
) shall be entitled to be indemnified out of the Trust Property in respect of all liabilities, damages, costs, claims, charges or expenses whatsoever properly incurred or suffered by such Relevant Person:
|
(a)
|
in the execution or exercise or bona fide purported execution or exercise of the trusts, rights, powers, authorities, discretions and duties created or conferred by or pursuant to the Finance Documents;
|
(b)
|
as a result of any breach by an Obligor of any of its obligations under any Finance Document;
|
(c)
|
in respect of any Environmental Claim made or asserted against a Relevant Person which would not have arisen if the Finance Documents had not been executed; and
|
(d)
|
in respect of any matter or thing done or omitted in any way in accordance with the terms of the Finance Documents relating to the Trust Property or the provisions of any of the Finance Documents.
|
1.36.2
|
The rights conferred by this clause 34.29 are without prejudice to any right to indemnity by law given to trustees generally and to any provision of the Finance Documents entitling the Security Agent or any other person to an indemnity in respect of, and/or reimbursement of, any liabilities, costs or expenses incurred or suffered by it in connection with any of the Finance Documents or the performance of any duties under any of the Finance Documents. Nothing contained in this clause 34.29 shall entitle the Security Agent or any other person to be indemnified in respect of any liabilities, damages, costs, claims, charges or expenses to the extent that the same arise from such person's own gross negligence or wilful misconduct.
|
1.37
|
Finance Parties to provide information
|
1.38
|
Release to facilitate enforcement and realisation
|
1.39
|
Undertaking to pay
|
1.40
|
Additional trustees
|
(a)
|
if the Security Agent reasonably considers such appointment to be in the best interests of the Finance Parties;
|
(b)
|
for the purpose of conforming with any legal requirement, restriction or condition in any jurisdiction in which any particular act is to be performed; or
|
(c)
|
for the purpose of obtaining a judgment in any jurisdiction or the enforcement in any jurisdiction against any person of a judgment already obtained,
|
1.41
|
Non-recognition of trust
|
(d)
|
in relation to any jurisdiction the courts of which would not recognise or give effect to the trusts expressed to be constituted by this clause 34, the relationship of the Security Agent and the other Finance Parties shall be construed as one of principal and agent, but to the extent permissible under the laws of such jurisdiction, all the other provisions of this Agreement shall have full force and effect between the parties to this Agreement; and
|
(e)
|
the provisions of this clause 34 insofar as they relate to the Security Agent in its capacity as trustee for the Finance Parties and the relationship between themselves and the Security Agent as their trustee may be amended by agreement between the other Finance Parties and the Security Agent. The Security Agent may amend all documents necessary to effect the alteration of the relationship between the Security Agent and the other Finance Parties and each such other party irrevocably authorises the Security Agent in its name and on its behalf to execute all documents necessary to effect such amendments.
|
2
|
Reference Banks
|
2.13
|
Role of Reference Banks
|
(l)
|
No Reference Bank is under any obligation to provide a quotation or any other information to the Agent.
|
(m)
|
No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.
|
(n)
|
No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Reference Bank may rely on this clause 35 subject to clause 1.3
(Third party rights)
and the provisions of the Third Parties Act.
|
2.14
|
Third party Reference Banks
|
3
|
Conduct of business by the Finance Parties
|
3.11
|
Finance Parties tax affairs
|
(bb)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(cc)
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(dd)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
3.12
|
Finance Parties acting together
|
3.13
|
Majority Lenders
|
3.13.12
|
Where any Finance Document provides for any matter to be determined by reference to the opinion of, or to be subject to the consent, approval or request of, the Majority Lenders or for any action to be taken on the instructions of the Majority Lenders (a
majority decision
), such majority decision shall (as between the Lenders) only be regarded as having been validly given or issued by the Majority Lenders if all the Lenders shall have received prior notice of the matter on which such majority decision is required and the relevant majority of Lenders shall have given or issued such majority decision. However (as between any Obligor and the Finance Parties) the relevant Obligor shall be entitled (and bound) to assume that such notice shall have been duly received by each Lender and that the relevant majority shall have been obtained to constitute Majority Lenders when notified to this effect by the Agent whether or not this is the case.
|
3.13.13
|
If, within ten Business Days of the Agent despatching to each Lender a notice requesting instructions (or confirmation of instructions) from the Lenders or the agreement of the Lenders to any amendment, modification, waiver, variation or excuse of performance for the purposes of, or in relation to, any of the Finance Documents, the Agent has not received a reply specifically giving or confirming or refusing to give or confirm the relevant instructions or, as the case may be, approving or refusing to approve the proposed amendment, modification, waiver, variation or excuse of performance, then (irrespective of whether such Lender responds at a later date) the Agent shall treat any Lender which has not so responded as having indicated a desire to be bound by the wishes of 662/3 per cent of those Lenders (measured in terms of the total Commitments of those Lenders) which have so responded.
|
3.13.14
|
For the purposes of clause 36.3.2, any Lender which notifies the Agent of a wish or intention to abstain on any particular issue shall be treated as if it had not responded.
|
3.13.15
|
Clauses 36.3.2 and 36.3.3 shall not apply in relation to those matters referred to in, or the subject of, clause 37.5 (
Exceptions
).
|
3.14
|
Conflicts
|
3.14.9
|
The Borrower acknowledges that any Arranger and its parent undertaking, subsidiary undertakings and fellow subsidiary undertakings (together an
Arranger Group
) may be providing debt finance, equity capital or other services (including financial advisory services) to other persons with which the Borrower may have conflicting interests in respect of the Facility or otherwise.
|
3.14.10
|
No member of an Arranger Group shall use confidential information gained from any Obligor by virtue of the Facility or its relationships with any Obligor in connection with their performance of services for other persons. This shall not, however, affect any obligations that any member of an Arranger Group has as Agent in respect of the Finance Documents. The Borrower also acknowledges that no member of an Arranger Group has any obligation to use or furnish to any Obligor information obtained from other persons for their benefit.
|
3.14.11
|
The terms
parent undertaking
,
subsidiary undertaking
and
fellow subsidiary undertaking
when used in this clause have the meaning given to them in sections 1161 and 1162 of the Companies Act 2006.
|
3.15
|
Replacement of a Defaulting Lender
|
3.15.12
|
The Borrowers may, at any time a Lender has become and continues to be a Defaulting Lender, by giving 20 Business Days' prior written notice to the Agent and such Lender:
|
(d)
|
replace such Lender by requiring such Lender to (and to the extent permitted by law such Lender shall) transfer pursuant to clause 32 (
Changes to the Lenders
) all (and not part only) of its rights and obligations under this Agreement; or
|
(e)
|
require such Lender to (and to the extent permitted by law such Lender shall) transfer pursuant to clause 32 (
Changes to the Lenders
) all (and not part only) of the undrawn Commitments of the Lender,
|
3.15.13
|
Any transfer of rights and obligations of a Defaulting Lender pursuant to this clause shall be subject to the following conditions:
|
(a)
|
the Borrower shall have no right to replace the Agent;
|
(b)
|
neither the Agent nor the Defaulting Lender shall have any obligation to the Borrowers to find a Replacement Lender;
|
(c)
|
the transfer must take place no later than 20 days after the notice referred to in clause 36.5.1; and
|
(d)
|
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents.
|
4
|
Sharing among the Finance Parties
|
4.19
|
Payments to Finance Parties
|
(l)
|
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;
|
(m)
|
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with clause 38 (
Payment mechanics
), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
(n)
|
the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the
Sharing Payment
) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with clause 38.5 (
Partial payments
).
|
4.20
|
Redistribution of payments
|
4.21
|
Recovering Finance Party's rights
|
4.22
|
Reversal of redistribution
|
(c)
|
each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the
Redistributed Amount
); and
|
(d)
|
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
4.23
|
Exceptions
|
4.23.8
|
This clause 37 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this clause, have a valid and enforceable claim against the relevant Obligor.
|
4.23.9
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(j)
|
it notified that other Finance Party of the legal or arbitration proceedings;
|
(k)
|
the taking legal or arbitration proceedings was in accordance with the terms of this Agreement; and
|
(l)
|
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
1
|
Payment mechanics
|
1.15
|
Payments to the Agent
|
1.15.12
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document (other than a Hedging Contract), that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
1.15.13
|
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Agent) and with such bank as the Agent, in each case, specifies.
|
1.16
|
Distributions by the Agent
|
1.17
|
Distributions to an Obligor
|
1.18
|
Clawback and pre-funding
|
1.18.11
|
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
1.18.12
|
Unless clause 38.4.3 applies, if the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
1.18.13
|
If the Agent has notified the Lenders that it is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower:
|
(c)
|
the Borrower shall on demand refund it to the Agent; and
|
(d)
|
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower, shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
1.19
|
Partial payments
|
1.19.12
|
If the Agent receives a payment for application against amounts in respect of any Finance Documents that is insufficient to discharge all the amounts then due and payable by an Obligor under those Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under those Finance Documents in the following order:
|
(e)
|
first
, in or towards payment pro rata of any unpaid amount owing to the Agent, the Security Agent or the Arrangers under those Finance Documents;
|
(f)
|
secondly
, in or towards payment to the Lenders pro rata of any amount owing to the Lenders under clause 34.11 (
Lenders' indemnity to the Agent
)
including any amount resulting from the indemnity to the Security Agent under clause 34.23 (
Application of certain clauses to Security Agent
);
|
(g)
|
thirdly
, in or towards payment to the Lenders pro rata of any accrued interest, fee, commission or any principal or any other sum due but unpaid under those Finance Documents;
|
(h)
|
fourthly
, in or towards payment to the Hedging Providers pro rata of any net accrued interest, fees, commission or any other net amounts due to them but unpaid under the Hedging Contracts which is due but unpaid under those Finance Documents; and
|
(i)
|
fifthly
, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
1.19.13
|
The Agent shall, if so directed by all the Lenders and each Hedging Provider, vary the order set out in paragraphs (b) to (e) of clause 38.5.1.
|
1.19.14
|
Clauses 38.5.1 and 38.5.2 above will override any appropriation made by an Obligor.
|
1.20
|
No set-off by Obligors
|
1.21
|
Business Days
|
1.21.4
|
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
1.21.5
|
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
1.22
|
Currency of account
|
1.22.6
|
Subject to clauses 38.8.2 to 38.8.3, dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
1.22.7
|
A repayment of all or part of a Loan or an Unpaid Sum and each payment of interest shall be made in dollars on its due date.
|
1.22.8
|
Each payment in respect of the amount of any costs, expenses or Taxes or other losses shall be made in dollars and, if they were incurred in a currency other than dollars, the amount payable under the Finance Documents shall be the equivalent in dollars of the relevant amount in such other currency on the date on which it was incurred.
|
1.22.9
|
All moneys received or held by the Security Agent or by a Receiver under a Security Document in a currency other than dollars may be sold for dollars and the Obligor which executed that Security Document shall indemnify the Security Agent against the full cost in relation to the sale. Neither the Security Agent nor such Receiver will have any liability to that Obligor in respect of any loss resulting from any fluctuation in exchange rates after the sale.
|
1.23
|
Change of currency
|
1.23.2
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(r)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Borrower); and
|
(s)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).
|
1.23.3
|
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Interbank Market and otherwise to reflect the change in currency.
|
1.24
|
Disruption to payment systems etc.
|
(e)
|
the Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances;
|
(f)
|
the Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(g)
|
the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(h)
|
any such changes agreed upon by the Agent and the Borrower shall (whether or not it is finally determined that a Payment Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of clause 44 (
Amendments and waivers
);
|
(i)
|
the Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this clause 38.10; and
|
(j)
|
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
2
|
Set-off
|
3
|
Notices
|
3.24
|
Communications in writing
|
3.25
|
Addresses
|
(f)
|
in the case of any Obligor which is a Party, that identified with its name in Schedule 1 (
The original parties
);
|
(g)
|
in the case of any Obligor which is not a Party, that identified in any Finance Document to which it is a party;
|
(h)
|
in the case of the Security Agent, the Agent and any other original Finance Party that identified with its name in Schedule 1 (
The original parties
); and
|
(i)
|
in the case of each Lender or other Finance Party, that notified in writing to the Agent on or prior to the date on which it becomes a Party in the relevant capacity,
|
(j)
|
or, in each case, any substitute address, fax number, or department or officer as an Obligor or Finance Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days' notice.
|
3.26
|
Delivery
|
3.26.6
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(n)
|
if by way of fax, when received in legible form; or
|
(o)
|
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
|
3.26.7
|
Any communication or document to be made or delivered to the Agent or the Security Agent will be effective only when actually received by the Agent or the Security Agent and then only if it is expressly marked for the attention of the department or officer identified in Schedule 1 (
The original parties
) (or any substitute department or officer as the Agent or the Security Agent shall specify for this purpose).
|
3.26.8
|
All notices from or to an Obligor shall be sent through the Agent.
|
3.26.9
|
Any communication or document made or delivered to the Borrower in accordance with this clause will be deemed to have been made or delivered to each of the Obligors.
|
3.26.10
|
Any communication or document which becomes effective, in accordance with clauses 40.3.1 to 40.3.4 above, after 5:00pm in the place of receipt shall be deemed only to become effective on the following day.
|
3.27
|
Notification of address and fax number
|
3.28
|
Electronic communication
|
3.28.9
|
Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if those two Parties:
|
(a)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(b)
|
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days notice.
|
3.28.10
|
Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Agent or the Security Agent only if it is addressed in such a manner as the Agent or the Security Agent shall specify for this purpose.
|
3.28.11
|
Any electronic communication which becomes effective, in accordance with clause 40.5.2 above, after 5:00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
3.29
|
English language
|
3.29.4
|
Any notice given under or in connection with any Finance Document shall be in English.
|
3.29.5
|
All other documents provided under or in connection with any Finance Document shall be:
|
(e)
|
in English; or
|
(f)
|
if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
4
|
Calculations and certificates
|
4.24
|
Accounts
|
4.25
|
Certificates and determinations
|
4.26
|
Day count convention
|
5
|
Partial invalidity
|
6
|
Remedies and waivers
|
7
|
Amendments and waivers
|
7.4
|
Required consents
|
7.4.8
|
Subject to clauses 44.2 (
All Lender matters
) and 44.3 (
Other exceptions
), any term of the Finance Documents may be amended or waived with the consent of the Agent (acting on the instructions of the Majority Lenders and, if it affects the rights and obligations of the Agent or the Security Agent, the consent of the Agent or the Security Agent and, if it affects the rights and obligations of the Hedging Providers, the consent of the Hedging Providers and, if it affects the rights and obligations of a Reference Bank, the consent of that Reference Bank and any such amendment or waiver agreed or given by the Agent will be binding on all the Finance Parties.
|
7.4.9
|
The Agent may (or, in the case of the Security Documents, instruct the Security Agent to) effect, on behalf of any Finance Party, any amendment or waiver permitted by this clause 44.
|
7.4.10
|
Without prejudice to the generality of sub-clauses 34.7.3, 34.7.4 and 34.7.5 of clause 34.7
(Rights and discretions of Agent)
, the Agent may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment, waiver or consent under this Agreement.
|
7.4.11
|
Each Obligor agrees to any such amendment or waiver permitted by this clause 44 which is agreed to by the Borrower. This includes any amendment or waiver which would, but for this clause 44.1.4, require the consent of the Parent.
|
7.5
|
All Lender matters
|
7.5.10
|
An amendment, waiver or discharge or release or a consent of, or in relation to, the terms of any Finance Document that has the effect of changing or which relates to:
|
(q)
|
the definition of "Majority Lenders" in clause 1.1 (
Definitions
);
|
(r)
|
the definitions of "Last Term Loan Availability Date" and "Last Revolving Loan Availability Date" in clause 1.1 (
Definitions
);
|
(s)
|
an extension to the date of payment of any amount under the Finance Documents;
|
(t)
|
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable or the rate at which they are calculated;
|
(u)
|
an increase in, or an extension of, any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders pro rata under the Facility;
|
(v)
|
a change to the Borrower or any other Obligor;
|
(w)
|
any provision which expressly requires the consent or approval of all the Lenders;
|
(x)
|
clause 2.3 (
Finance Parties' rights and obligations
), clause 32 (
Changes to the Lenders
), clause 37.1 (
Payments to Finance Parties
), this clause 44, clause 49 (
Governing law
) or clause 50.1 (
Jurisdiction of English courts
);
|
(y)
|
the order of distribution under clause 38.5 (
Partial payments
);
|
(z)
|
the order of distribution under clause 34.25.1 (
Order of application
);
|
(aa)
|
the currency in which any amount is payable under any Finance Document;
|
(bb)
|
an increase in any Commitment or the Total Commitments, an extension of any period within which a Facility is available for Utilisation or any requirement that a cancellation of Commitments reduces the Commitments pro rata;
|
(cc)
|
the nature or scope of the Charged Property or the manner in which the proceeds of enforcement of the Security Documents are distributed;
|
(dd)
|
the nature or scope of the guarantee and indemnity granted under clause 17 (
Guarantee and Indemnity
); or
|
(ee)
|
the circumstances in which the security constituted by the Security Documents are permitted or required to be released under any of the Finance Documents,
|
7.6
|
Other exceptions
|
7.6.6
|
Amendments to or waivers in respect of the Hedging Contracts may only be agreed by the relevant Hedging Provider.
|
7.6.7
|
An amendment or waiver which relates to the rights or obligations of the Agent, the Security Agent, any Hedging Provider, a Reference Bank or the Arrangers in their respective capacities as such (and not just as a Lender) may not be effected without the consent of the Agent, the Security Agent, any Hedging Provider, a Reference Bank or the Arrangers (as the case may be).
|
7.6.8
|
Notwithstanding clauses 44.1 and 44.2.1 to 44.3.2 (inclusive), the Agent may make technical amendments to the Finance Documents arising out of manifest errors on the face of the Finance Documents, where such amendments would not prejudice or otherwise be adverse to the interests of any Finance Party without any reference or consent of the Finance Parties.
|
7.6.9
|
Subject to clause 44.3.1, if the Screen Rate is not available, any amendment or waiver which relates to providing for another benchmark rate to apply in relation to that currency in place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that other benchmark rate) may be made with the consent of the Majority Lenders and the Borrower.
|
7.7
|
Releases
|
(o)
|
any Charged Property from the security constituted by any Security Document; or
|
(p)
|
any Obligor from any of its guarantee or other obligations under any Finance Document.
|
8
|
Confidentiality of Funding Rates and Reference Bank Quotations
|
8.13
|
Confidentiality and disclosure
|
8.13.9
|
The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by clauses 45.1.2, 45.1.3 and 45.1.4 below.
|
8.13.10
|
The Agent may disclose:
|
(d)
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower pursuant to clause 8.4
(Notification of rates of interest)
; and
|
(e)
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
|
8.13.11
|
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to:
|
(j)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this clause 45.1.3(b) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
(k)
|
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
|
(l)
|
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and
|
(m)
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
8.13.12
|
The Agent's obligations in this clause 45 relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under clause 8.4
(Notification of rates of interest)
provided that (other than pursuant to clause 45.1.2(a) above) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.
|
8.14
|
Related obligations
|
8.14.6
|
The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
8.14.7
|
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:
|
(k)
|
of the circumstances of any disclosure made pursuant to clause 45.1.3(b)
(Confidentiality and disclosure)
except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(l)
|
upon becoming aware that any information has been disclosed in breach of this clause 45.
|
8.15
|
No Event of Default
|
9
|
Confidentiality
|
9.9
|
Confidential information
|
9.10
|
Disclosure of confidential information
|
(n)
|
to any Finance Party or any member of the Group or any of their advisers;
|
(o)
|
of information that is or becomes public information other than as a direct or indirect result of any breach this clause 46;
|
(p)
|
of information which is identified in writing at the time of delivery as non-confidential by the relevant Finance Party or any of its advisers;
|
(q)
|
of information that is known by the relevant Obligor before the date the information is disclosed to it by a Finance Party or, if the information was obtained by a member of the Group from a Finance Party, a member of the Group or is lawfully obtained by that Obligor after that date, from a source which is, as far as that Obligor is aware, unconnected with the Finance Parties or their Affiliates and which, in either case, as far as that Obligor is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality;
|
(r)
|
required by any applicable law or regulation, including filing of this Facilities Agreement with the U.S. Securities and Exchange Commission; or
|
(s)
|
of the basic commercial terms of this Agreement.
|
10
|
Counterparts
|
1
|
Contractual recognition of bail-in
|
1.16
|
Contractual recognition of bail-in
|
(c)
|
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i)
|
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii)
|
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii)
|
a cancellation of any such liability; and
|
(d)
|
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
1.17
|
Definitions
|
2
|
Governing law
|
3
|
Enforcement
|
3.27
|
Jurisdiction of English courts
|
3.27.12
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement or any non-contractual obligations connected with it (including a dispute regarding the existence, validity or termination of this Agreement) (a
Dispute
).
|
3.27.13
|
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
3.27.14
|
This clause 50.1 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
3.28
|
Service of process
|
(g)
|
irrevocably appoints the person named in Schedule 1 (
The original parties
) as that Obligor's English process agent as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document;
|
(h)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned; and
|
(i)
|
if any person appointed as process agent for an Obligor is unable for any reason to act as agent for service of process, that Obligor must immediately (and in any event within ten days of such event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for this purpose.
|
Name
|
Golar Partners Operating LLC
|
Original Jurisdiction
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
961204
|
English process agent
(
if not incorporated in England
)
|
Golar Management Ltd
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar LNG Partners LP (the
Parent
)
|
Original Jurisdiction
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
950020
|
English process agent
(
if not incorporated in England
)
|
Golar Management Ltd
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar LNG Holding Co.
|
Original Jurisdiction
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
40127
|
English process agent
(
if not incorporated in England
)
|
Golar Management Ltd
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar Freeze Holding Co.
|
Original Jurisdiction
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
40129
|
English process agent
(
if not incorporated in England
)
|
Golar Management Ltd
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar Freeze UK Ltd.
|
Original Jurisdiction
|
United Kingdom
|
Registration number
(
or equivalent, if any
)
|
4679420
|
Registered office
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar Grand Corporation
|
Original Jurisdiction
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
59790
|
English process agent
(
if not incorporated in England
)
|
Golar Management Ltd
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar Hull M2031 Corp.
|
Original Jurisdiction
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
47445
|
English process agent
(
if not incorporated in England
)
|
Golar Management Ltd
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar LNG 2234 LLC
|
Original Jurisdiction
|
Liberia
|
Registration number
(
or equivalent, if any
)
|
960060
|
English process agent
(
if not incorporated in England
)
|
Golar Management Ltd
|
Registered office
|
80 Broad Street, Monrovia, Republic of Liberia
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar Spirit Corporation
|
Original Jurisdiction
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
45732
|
English process agent
(
if not incorporated in England
)
|
Golar Management Ltd
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar Spirit UK Ltd.
|
Original Jurisdiction
|
United Kingdom
|
Registration number
(
or equivalent, if any
)
|
4679402
|
Registered office
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar Winter Corporation
|
Original Jurisdiction
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
59789
|
English process agent
(
if not incorporated in England
)
|
Golar Management Ltd
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar Winter UK Ltd.
|
Original Jurisdiction
|
United Kingdom
|
Registration number
(
or equivalent, if any
)
|
5073292
|
Registered office
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar LNG 2215 Corporation
|
Original Jurisdiction
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
21327
|
English process agent
(
if not incorporated in England
)
|
Golar Management Ltd
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Golar 2215 UK Ltd.
|
Original Jurisdiction
|
United Kingdom
|
Registration number
(
or equivalent, if any
)
|
4871293
|
Registered office
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Address for service of notices
|
13th Floor, One America Square, 17 Crosswall, London, EC3N 2LB
|
Name
|
Nordea Bank Norge ASA
|
Facility Office, address, fax number and attention details for notices and account details for payments
|
Address: Essendrops gate 7
0368 Oslo
Norway
Tel: +47 2401 1292
Fax: +47 22 48 66 68
Email:
agency.soosid@nordea.com
/
Slo.Shipping.Norway@nordea.com
Attention: Shipping & Offshore |
Term Loan Commitment ($)
|
$99,531,250
|
Revolving Loan Commitment ($)
|
$22,968,750
|
TOTAL
|
$122,500,000
|
Name
|
BNP Paribas
|
Facility Office, address, fax number and attention details for notices and account details for payments
|
Lending office:
Address: 16 Boulevard des Italiens
75009 Paris
For credit matters:
Address: 16 rue de Hanovre
75002 Paris
France
Email: alia.sondarjee@bnpparibas.com / jean‑marc.morant@bnpparibas.com
Attention: Alia Sondarjee / Jean-Marc Morant
For operational matters:
Address: 16 rue de Hanovre
75002 Paris
France /
150 boulevard Poissonnière
75009 Paris
France
Fax: +33 1 42 98 43 55
Email: manon.didier@bnpparibas.com / olivia.coldefy@bnpparibas.com /
Paris_cib_boci_cfi_2@bnpparibas.com
/
tgmo.shipping@bnpparibas.com
Attention: Ms Manon Didier / Ms Olivia Coldefy (Middle Office) and BOCI Team (Back Office)
|
Term Loan Commitment ($)
|
$73,125,000
|
Revolving Loan Commitment ($)
|
$16,875,000
|
TOTAL
|
$90,000,000
|
Name
|
Nordea Bank Norge ASA
|
Facility Office, address, fax number and attention details for notices and account details for payments
|
Address: Essendrops gate 7
0368 Oslo
Norway
Tel: +47 2401 1292
Fax: +47 22 48 66 68
Email:
agency.soosid@nordea.com
/
Attention: Shipping & Offshore |
Name
|
Nordea Bank Norge ASA
|
Facility Office, address, fax number and attention details for notices and account details for payments
|
Address: Essendrops gate 7
0368 Oslo
Norway
Tel: +47 2401 1292
Fax: +47 22 48 66 68
Email:
agency.soosid@nordea.com
/
Attention: Shipping & Offshore |
Name
|
Citibank, N.A., London Branch
|
Facility Office, address, fax number and attention details for notices and account details for payments
|
Address: Citigroup Centre
22 Canada Square
Canary Wharf
London E14 5LB
|
Name
|
Danske Bank A/S
|
Facility Office, address, fax number and attention details for notices and account details for payments
|
Address: Søndre Gate 13-15
N-7466 Trondheim
|
Name
|
Skandinaviska Enskilda Banken AB (publ)
|
Facility Office, address, fax number and attention details for notices and account details for payments
|
Address: Kungsträdgårdsgatan 8
106 40 Stockholm
Sweden
|
Name
|
BNP Paribas
|
Facility Office, address, fax number and attention details for notices and account details for payments
|
Address: 16 Boulevard des Italiens
75009 Paris
|
Name of Ship:
|
“GOLAR FREEZE”
|
Year built:
|
1977
|
Size:
|
129,000 cbm
|
Type of ship:
|
Floating storage and regasification vessel
|
Owner:
|
Golar Freeze Holding Co.
|
Flag State:
|
Marshall Islands
|
Port of Registry:
|
Majuro
|
IMO Number:
|
7361922
|
Bareboat Charter description:
|
The bareboat charter entered into between the Owner and the Bareboat Charterer dated 28 March 2011 (as supplemented and amended from time to time)
|
Bareboat Charterer:
|
Golar Freeze UK Ltd.
|
Time Charter description:
|
The time charter entered into between the Bareboat Charterer and the Time Charterer dated 20 April 2008
|
Time Charterer:
|
Dubai Supply Authority
|
Classification:
|
DNV +1A1 Tanker for Liquified Gas EO Regas 2
|
Classification Society:
|
Det Norske Veritas
|
Major Casualty Amount:
|
$10,000,000
|
Name of Ship:
|
“GOLAR GRAND”
|
Year built:
|
2006
|
Size:
|
145,700 cbm
|
Type of ship:
|
Liquefied natural gas carrier
|
Owner:
|
Golar Grand Corporation
|
Flag State:
|
Marshall Islands
|
Port of Registry:
|
Majuro
|
IMO Number:
|
9303560
|
Time Charter description:
|
The time charter entered into between the Owner and the Time Charterer dated 27 May 2015 (as supplemented and amended from time to time)
|
Time Charterer:
|
Golar Trading Corporation
|
Classification:
|
X
1A1 Tanker for Liquefied Gas E0 F-AMC ICS NAUT-OC CLEAN COAT-2 PLUS-2 TMON NAUTICUS(Newbuilding, Operation)
|
Classification Society:
|
Det Norske Veritas
|
Major Casualty Amount:
|
$5,000,000
|
Name of Ship:
|
“GOLAR IGLOO”
|
Year built:
|
2014
|
Size:
|
170,000 cbm
|
Type of ship:
|
Floating storage and regasification vessel
|
Owner:
|
Golar Hull M2031 Corp.
|
Flag State:
|
Marshall Islands
|
Port of Registry:
|
Majuro
|
IMO Number:
|
9633991
|
Time Charter description:
|
The LNG storage and regasification services contract no. CA/3969 entered into between Golar LNG Limited and the Time Charterer dated 4 August 2013 (as novated to the Owner pursuant to an assignment and novation agreement dated 23 February 2014 and as supplemented and amended from time to time)
|
Time Charterer:
|
Kuwait National Petroleum Company
|
Classification:
|
X
1A1 Tanker for Liquefied Gas REGAS-2 COMF-V(2)C(3) E0 NAUT-OC CLEAN Recyclable COAT-PSPC(B) CSA-2 BIS GAS FUELLED TMON NAUTICUS(Newbuilding)
|
Classification Society:
|
Det Norske Veritas
|
Major Casualty Amount:
|
$10,000,000
|
Name of Ship:
|
“GOLAR MARIA”
|
Year built:
|
2006
|
Size:
|
145,700 cbm
|
Type of ship:
|
Liquefied natural gas carrier
|
Owner:
|
Golar LNG 2234 LLC
|
Flag State:
|
Marshall Islands
|
Port of Registry:
|
Majuro
|
IMO Number:
|
9320374
|
Time Charter description:
|
The time charter entered into between the Owner and the Time Charterer dated 28 November 2012 (as supplemented and amended from time to time)
|
Time Charterer:
|
LNG Shipping S.p.A.
|
Classification:
|
X
1A1 Tanker for Liquefied Gas E0 F-AMC ICS NAUT-OC CLEAN COAT-2 PLUS-2 TMON NAUTICUS(Newbuilding, Operation)
|
Classification Society:
|
Det Norske Veritas
|
Major Casualty Amount:
|
$5,000,000
|
Name of Ship:
|
“GOLAR SPIRIT”
|
Year built:
|
1981
|
Size:
|
129,000 cbm
|
Type of ship:
|
Floating storage and regasification vessel
|
Owner:
|
Golar Spirit Corporation
|
Flag State:
|
Marshall Islands
|
Port of Registry:
|
Majuro
|
IMO Number:
|
7373327
|
Bareboat Charter description:
|
The bareboat charter entered into between the Owner and the Bareboat Charterer dated 28 March 2011 (as supplemented and amended from time to time)
|
Bareboat Charterer:
|
Golar Spirit UK Ltd.
|
Time Charter description:
|
The time charter entered into between the Bareboat Charterer and the Time Charterer dated 4 September 2007
|
Time Charterer:
|
Petróleo Brasileiro S.A.
|
Classification:
|
X
1A1 Tanker for Liquefied Gas E0 Regas 2
|
Classification Society:
|
Det Norske Veritas
|
Major Casualty Amount:
|
$10,000,000
|
Name of Ship:
|
“GOLAR WINTER”
|
Year built:
|
2004
|
Size:
|
138,000 cbm
|
Type of ship:
|
Floating storage and regasification vessel
|
Owner:
|
Golar Winter Corporation
|
Flag State:
|
Marshall Islands
|
Port of Registry:
|
Majuro
|
IMO Number:
|
9256614
|
Bareboat Charter description:
|
The bareboat charter entered into between the Owner and the Bareboat Charterer (as novated from Golar LNG 2220 Corporation to the Owner pursuant to a novation agreement dated 27 June 2013 and as further supplemented and amended from time to time)
|
Bareboat Charterer:
|
Golar Winter UK Ltd.
|
Time Charter description:
|
The time charter entered into between the Bareboat Charterer and the Time Charterer dated 4 September 2007 (as amended by an amendment dated 16 February 2009, an amendment dated 26 March 2011, an amendment dated 16 May 2011, an amendment dated 26 January 2012 and an amendment dated 27 June 2013 and as supplemented and amended from time to time)
|
Time Charterer:
|
Petróleo Brasileiro S.A.
|
Classification:
|
X
1A1 Tanker for Liquefied Gas REGAS-2 E0 NAUT-OC LCS-SID CLEAN PLUS-2 TMON NAUTICUS(Newbuilding)
|
Classification Society:
|
Det Norske Veritas
|
Major Casualty Amount:
|
$10,000,000
|
Name of Ship:
|
“METHANE PRINCESS”
|
Year built:
|
2003
|
Size:
|
138,000 cbm
|
Type of ship:
|
Liquefied natural gas carrier
|
Owner:
|
Golar LNG 2215 Corporation
|
Registered Owner / Lessor:
|
A&L CF June (3) Limited
|
Flag State:
|
Marshall Islands
|
Port of Registry:
|
Majuro
|
IMO Number:
|
9253715
|
Bareboat Charter description:
|
The bareboat charter entered into between Golar LNG 2215 Corporation and the Bareboat Charterer dated 27 August 2003, as supplemented and amended from time to time)
|
Bareboat Charterer:
|
Golar 2215 UK Ltd.
|
Time Charter description:
|
The time charter entered into between the Bareboat Charterer and the Time Charterer dated 25 October 2001 (as amended and supplemented by addendum no 1 dated 4 April 2003 and novated and amended and restated pursuant to a novation agreement dated 27 August 2003 and as further supplemented and amended from time to time)
|
Time Charterer:
|
Methane Services Limited
|
Time Charter Guarantee
|
Time charter guarantee dated 27 August 2003 entered into by the Time Charter Guarantor in favour of the Bareboat Charterer
|
Time Charter Guarantor
|
BG International Limited
|
Classification:
|
X
1A1 Tanker for Liquefied Gas E0, NAUT-OC LCS-SID NAUTICUS (Newbuilding)
|
Classification Society:
|
Det Norske Veritas
|
Major Casualty Amount:
|
$5,000,000
|
1
|
Original Obligors' corporate documents
|
(a)
|
A copy of the Constitutional Documents of each Original Obligor (other than any manager of a Ship).
|
(b)
|
A copy of a resolution of the board of directors (or, in relation to the Parent, its equivalent) of each Original Obligor (or, if applicable, any committee of such board empowered to approve and authorise the following matters) (other than any manager of a Ship):
|
(i)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party (
Relevant Documents
) and resolving that it execute the Relevant Documents to which it is a party;
|
(ii)
|
authorising a specified person or persons to execute the Relevant Documents to which it is a party on its behalf; and
|
(iii)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request and any Selection Notice) to be signed and/or despatched by it under or in connection with the Relevant Documents to which it is a party.
|
(c)
|
If applicable, a copy of a resolution of the board of directors (or, in relation to the Parent, its equivalent) of the relevant company, establishing any committee referred to in paragraph (b) above and conferring authority on that committee.
|
(d)
|
A notarised passport copy (containing a specimen signature) of each person authorised by the resolution referred to in paragraph (b) above in relation to the Finance Documents and related documents and who has executed any such document.
|
(e)
|
A copy of a resolution signed by all the holders of the issued shares in each Original Obligor (other than any manager of a Ship) or, in the case of the Parent, of a resolution of the General Partner, approving the terms of, and the transactions contemplated by, the Relevant Documents to which such Obligor is a party.
|
(f)
|
A certificate of the Parent (signed by a director) confirming that:
|
(i)
|
borrowing or guaranteeing or securing, as appropriate, the Total Commitments would not cause any borrowing, guarantee, security or similar limit binding on any Original Obligor to be exceeded; and
|
(ii)
|
no consents, authorisations, licences or approvals are necessary for any Original Obligor to authorise or are required by any Original Obligor in connection with the borrowing by the Borrower of the Loans pursuant to this Agreement or the execution, delivery and performance of any Finance Document.
|
(g)
|
A copy of any power of attorney under which any person is to execute any of the Relevant Documents on behalf of any Original Obligor (other than any manager of a Ship).
|
(h)
|
A certificate of an authorised signatory of the relevant Original Obligor (other than any manager of a Ship) certifying that each copy document relating to it specified in this Part of this Schedule is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Agreement and that any such resolutions or power of attorney have not been revoked.
|
2
|
Legal opinions
|
(a)
|
A Legal Opinion of Norton Rose Fulbright LLP, London addressed to the Agent on matters of English law, substantially in the form approved by all of the Lenders prior to signing this Agreement.
|
(b)
|
A Legal Opinion of the legal advisers to the Agent in each jurisdiction (other than England and Wales) in which an Obligor is incorporated and/or which is or is to be the Flag State of a Ship, or in which an Account opened at the relevant time is established substantially in the form approved by all of the Lenders prior to signing this Agreement.
|
3
|
Other documents and evidence
|
(a)
|
Evidence that any process agent referred to in clause 50.2 (
Service of process
) or any equivalent provision of any other Finance Document entered into on or before the first Utilisation Date, if not an Original Obligor, has accepted its appointment.
|
(b)
|
Each Fee Letter duly executed by the parties thereto.
|
(c)
|
A copy, certified by an approved person to be a true and complete copy, of each of the Charter Documents and the OSA.
|
(d)
|
A copy of any other authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
|
(e)
|
The Original Financial Statements, together with a Compliance Certificate.
|
(f)
|
Evidence that the fees, commissions, costs and expenses then due from the Borrower pursuant to clause 11 (
Fees
) and clause 16 (
Costs and expenses
) have been paid or will be paid by the first Utilisation Date.
|
(g)
|
Evidence that all amounts outstanding under the Existing Financial Indebtedness have been or will be (as a result of the first Utilisation) discharged in full and that all related commitments are or will be cancelled in full, that all Security Interests and guarantees in connection with the Existing Financial Indebtedness.
|
(h)
|
Evidence satisfactory to the Agent that since 31 December 2015, nothing shall have occurred (and neither the Agent nor any of the Lenders shall have become aware of any condition or circumstance not previously known to it or them) which the Lenders shall determine has had, or could reasonably be expected to have, a Material Adverse Effect.
|
4
|
Hedging Master Agreements and Hedging Contract Security
|
(a)
|
if required by the Agent, the Hedging Master Agreements have been executed by the Borrower and each Hedging Provider;
|
(b)
|
the Borrower has executed the Hedging Contract Security in favour of the Security Agent; and
|
(c)
|
any notice required to be given to each Hedging Provider under the Hedging Contract Security has been given to it and acknowledged by it in the manner required by the Hedging Contract Security.
|
5
|
"Know your customer" information
|
6
|
Taxation
|
7
|
Leasing arrangements
|
8
|
Further documentation
|
1
|
Corporate documents
|
(i)
|
A certificate of an authorised signatory of the relevant Owner (other than any manager of a Ship) certifying that each copy document relating to it specified in Part 1 of this Schedule remains correct, complete and in full force and effect as at a date no earlier than a date approved for this purpose and that any resolutions or power of attorney referred to in Part 1 of this Schedule in relation to it have not been revoked or amended.
|
(j)
|
A certificate of an authorised signatory of each other Obligor (other than any manager of a Ship) which is party to any of the Original Security Documents required to be executed at or before the first Utilisation Date certifying that each copy document relating to it specified in Part 1 of this Schedule remains correct, complete and in full force and effect as at a date no earlier than a date approved for this purpose and that any resolutions or power of attorney referred to in Part 1 of this Schedule in relation to it have not been revoked or amended.
|
2
|
Security
|
(c)
|
The Mortgage and the Assignment Deed in respect of each Ship (other than Ship G).
|
(d)
|
In respect of Ship G, the Mortgage Transfer, the Assignment Deed, the Proceeds Account Charge, the Proceeds Deed, the Lessor Parent Support Letter, the Standby Purchaser Assignment and the Standby Purchaser Share Security, each duly executed.
|
(e)
|
Any Manager's Undertaking in respect of each Ship then required pursuant to the Finance Documents duly executed by the relevant manager.
|
(f)
|
Duly executed notices of assignment and acknowledgements of those notices as required by any of the above Security Documents and in respect of the acknowledgments required from each Time Charterer, the Borrower’s obligations shall be to use all commercially reasonable efforts to obtain the relevant acknowledgments as conditions subsequent in accordance with clause 4.7(a) (
Conditions subsequent
).
|
(g)
|
If Quiet Enjoyment Letters are required by the relevant Time Charterer pursuant to the terms of the relevant Time Charter, evidence acceptable to the Agent that the Quiet Enjoyment Letters are in a form agreed to by the Security Agent and the relevant Owner, Bareboat Charterer and Time Charterer (which have consented to the relevant Security Documents) and that the duly executed and dated Quiet Enjoyment Letters will follow as conditions subsequent in accordance with clause 4.7(b) (
Conditions subsequent
).
|
3
|
Delivery and registration of Ship
|
(i)
|
is legally and beneficially owned by the relevant Owner or the Lessor (in the case of Ship G) and registered in the name of the relevant Owner or the Lessor (in the case of Ship G) through the relevant Registry as a ship under the laws and flag of the relevant Flag State;
|
(j)
|
is classed with the relevant Classification free of all material overdue requirements and recommendations of the relevant Classification Society;
|
(k)
|
is insured in the manner required by the Finance Documents;
|
(l)
|
has been delivered, and accepted for service, under its Time Charter and Bareboat Charter;
|
(m)
|
is free of any other charter commitment which would require approval under the Finance Documents; and
|
(n)
|
any prior registration (other than through the relevant Registry in the relevant Flag State) of each of the Ships has been or will be cancelled.
|
4
|
Mortgage registration
|
5
|
Legal opinions
|
(a)
|
A Legal opinion of Norton Rose Fulbright LLP, London addressed to the Agent on matters of English law, substantially in the form approved by all of the Lenders prior to signing this Agreement in relation to Security Documents.
|
(b)
|
A Legal opinion of the legal advisers to the Security Agent and the Agent in each jurisdiction (other than England and Wales) in which an Obligor is incorporated and/or which is or is to be the Flag State of a Ship, or in which an Account opened at the relevant time is established substantially in the form approved by all of the Lenders prior to signing this Agreement.
|
6
|
Insurance
|
(a)
|
an opinion from insurance consultants appointed by the Agent on such Insurances;
|
(b)
|
evidence that such Insurances have been placed in accordance with clause 24 (
Insurance
); and
|
(c)
|
evidence that approved brokers, insurers and/or associations have issued or will issue letters of undertaking in favour of the Security Agent in an approved form in relation to the Insurances.
|
7
|
ISM and ISPS Code
|
(a)
|
the document of compliance issued in accordance with the ISM Code to the person who is the operator of each of the Ships for the purposes of that code;
|
(b)
|
the safety management certificate in respect of each of the Ships issued in accordance with the ISM Code;
|
(c)
|
the international ship security certificate in respect of each of the Ships issued under the ISPS Code; and
|
(d)
|
if so requested by the Agent, any other certificates issued under any applicable code required to be observed by each of the Ships or in relation to its operation under any applicable law.
|
8
|
Value of security
|
9
|
Environmental matters
|
10
|
Management Agreement
|
11
|
Bank Accounts
|
12
|
Share Security
|
1
|
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2
|
We wish to borrow [the Term Loan]/[a Revolving Loan] on the following terms:
|
Proposed Utilisation Date:
|
[
l
] (or, if that is not a Business Day, the next Business Day)
|
Amount:
|
$[
•
]
|
3
|
We confirm that each condition specified in clause 4.4 (
Further conditions precedent
) is satisfied on the date of this Utilisation Request.
|
4
|
The purpose of this Loan is [[
•
] and its proceeds should be credited to [
•
]]/[to repay a Revolving Loan maturing on the proposed Utilisation Date].
|
5
|
[
Revolving Loan:
We request that the Interest Period for the Loan be [●] months.] [
Term Loan:
We request that the first Interest Period for the Loan be [●] months.]
|
6
|
This Utilisation Request is irrevocable.
|
1
|
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
|
2
|
We request that the next Interest Period for the Term Loan be [
l
] months.
|
3
|
This Selection Notice is irrevocable.
|
1
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2
|
We refer to clause 32.5 (
Procedure for assignment
):
|
(c)
|
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment(s) and participations in the Loans under the Agreement as specified in the Schedule.
|
(d)
|
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitment(s) and participations in the Loans under the Agreement specified in the Schedule.
|
(e)
|
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
(f)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of clause 40.2 (
Addresses
) are set out in the Schedule.
|
3
|
The proposed Transfer Date is [●].
|
4
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in sub-clause 32.4.3 of clause 32.4
(Limitation of responsibility of Existing Lenders)
.
|
5
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
6
|
This Transfer Certificate and any non-contractual obligations connected with it are governed by English law.
|
7
|
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
1
|
I refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2
|
I confirm that:
|
(d)
|
the aggregate value of the Free Liquid Assets of the Group is $[
•
] and was, at all times in the period for which the financial statements and management accounts attached hereto relate, not less than $[
•
];
|
(e)
|
the ratio of Net Debt to EBITDA for the previous 12 months has been [
•
], calculated on a trailing four quarter basis (Net Debt: [
•
] and EBITDA: [
•
]);
|
(f)
|
the ratio of EBITDA to Consolidated Debt Service for the previous 12 months has been [
·
], calculated on a trailing four quarter basis (EBITDA: [
·
] and Consolidated Debt Service: [
•
]); and
|
(g)
|
the Consolidated Net Worth is [
•
] and was, at all times in the period for which the financial statements attached hereto relate, not less than [
•
].
|
3
|
[I confirm that no Default is continuing.] [If this statement cannot be made, the certificate should identify any Default that is continuing and the steps, if any, being taken to remedy it.]
|
4
|
[I confirm that the Borrower is in compliance with the provisions of clause 25 (
Minimum security value
) of the Facilities Agreement and attach evidence demonstrating such compliance over the last 12 months.]
|
5
|
I attach the financial statements and management accounts required to be provided pursuant to clause 19.1 (
Financial Statements
) of the Facilities Agreement.
|
1
|
In relation to Ship B:
|
(h)
|
a second mortgage of Ship B dated on or about the first Utilisation Date executed by the Owner of Ship B in favour of Santander Asset Finance plc; and
|
(i)
|
a second assignment deed dated on or about the first Utilisation Date executed by the Owner of Ship B in favour of Santander Asset Finance plc.
|
2
|
In relation to Ship C, a second mortgage of Ship C dated on or about the first Utilisation Date executed by the Owner of Ship C in favour of Citibank Europe plc.
|
3
|
In relation to Ship E:
|
(a)
|
a second mortgage of Ship E dated on or about the first Utilisation Date executed by the Owner of Ship E in favour of Santander Asset Finance plc; and
|
(b)
|
a second assignment deed dated on or about the first Utilisation Date executed by the Owner of Ship E and the Bareboat Charterer of Ship E in favour of Santander Asset Finance plc.
|
4
|
In relation to Ship G:
|
(a)
|
a second three party deed dated on or about the first Utilisation Date executed by the Owner and Bareboat Charterer of Ship G in favour of Santander Asset Finance plc;
|
(b)
|
a second standby purchaser assignment dated 12 November 2008 executed by the Standby Purchaser in favour of Santander Asset Finance plc;
|
(c)
|
a second share charge dated 12 November 2008 executed by the Borrower in favour of Santander Asset Finance plc containing a second priority charge by the Borrower of its rights, title and interests in and to the shares in respect of the Owner of Ship G;
|
(d)
|
a second share charge dated 12 November 2008 executed by the Borrower in favour of Santander Asset Finance plc containing a second priority charge by the Borrower of its rights, title and interests in and to the shares in respect of the Bareboat Charterer of Ship G;
|
(e)
|
a second standby purchaser share charge dated 12 November 2008 executed by the Standby Purchaser Shareholder in favour of Santander Asset Finance plc containing a second priority charge by the Standby Purchaser Shareholder of its rights, title and interests in and to the shares in respect of the Standby Purchaser;
|
(f)
|
a second earnings account charge dated 31 July 2014 executed by the Owner of Ship G in favour of Santander Asset Finance plc;
|
(g)
|
a second earnings account charge dated 31 July 2014 executed by the Bareboat Charterer of Ship G in favour of Santander Asset Finance plc; and
|
(h)
|
a second earnings account charge dated 31 July 2014 executed by the Standby Purchaser in favour of Santander Asset Finance plc.
|
Clause 32.
|
DELIVERY OF THE VESSEL
|
32.1
|
Upon satisfaction of the conditions precedent set out in Clause 59 (unless waived by the Owner) and Delivery of the Vessel by the Bareboat Charterer (as seller) to the Owner (as buyer) under the MOA, the Vessel shall be deemed to have been immediately delivered to and accepted (without reservation) by the Bareboat Charterer under this Bareboat Charter, regardless whether the Bareboat Charterer is able to take the possession and/or use of the Vessel. The Bareboat Charterer shall not be entitled for whatever reason to refuse to accept Delivery of the Vessel under this Bareboat Charter.
|
32.2
|
The Owner shall have no responsibility for any loss and/or damage incurred by the Bareboat Charterer as a result of any delay in delivery of the Vessel to the Bareboat Charterer for whatsoever reason.
|
32.3
|
Without prejudice to the provisions of Clauses 32.1 and 32.2, the Owner and the Bareboat Charterer shall on the Delivery Date sign the Protocol of Delivery and Acceptance in the form as attached in Appendix I hereof.
|
32.4
|
Unless the conditions set out in Clause 4.1 of the MOA are satisfied, the Buyer shall not be obliged to take delivery of the Vessel under the MOA and is entitled to cancel the MOA. If the Owner elects not to cancel the MOA but to choose instead to waive any condition in Clause 4.1 of the MOA and take delivery of the Vessel, the Buyer shall not be liable to the Bareboat Charterer for any losses and/or damages incurred by the Bareboat Charterer occasioned by any delay in delivery to the Bareboat Charterer under this Bareboat Charter.
|
CLAUSE 33.
|
LIMITATION ON OWNER’S LIABILITY
|
33.1
|
The Bareboat Charterer hereby expressly acknowledges and agrees that:
|
(a)
|
the Owner makes no condition, term, representation or warranty, express or implied (and whether statutory, contractual or otherwise) as to the Owner’s title to the Vessel or as to the seaworthiness, merchantability, classification, condition, design, quality, operation, performance, capacity or fitness for use or as to the eligibility of the Vessel for any particular trade or operation or any other condition, term, representation or warranty whatsoever, express or implied, with respect to the Vessel. Acceptance of delivery by the Bareboat Charterer or (as the case may be) deemed delivery of the Vessel to the Bareboat Charterer under this Bareboat Charter shall be final and conclusive proof evidencing that, for the purposes of the obligations and liabilities of the Owner hereunder or in connection herewith, the Vessel is on the Delivery Date seaworthy and satisfies all provisions, requirements and specifications of this Bareboat Charter, and that the Vessel is in good working order and repair and without defect or inherent vice whether or not discoverable by the Bareboat Charterer;
|
(b)
|
the Bareboat Charterer hereby waives any and all of its rights in respect of any condition, term, representation or warranty whether express or implied (statutory or otherwise) on the part of the Owner and all of its claims against the Owner howsoever and whatsoever that may arise in respect of the Vessel or the Owner's title thereto, or all of its rights therein or arising out of the operation of the Vessel or the chartering thereof under this Bareboat Charter (including in respect of the seaworthiness or otherwise of the Vessel) unless this is caused by the, gross negligence or wilful misconduct of the Owner;
|
(c)
|
the Bareboat Charterer agrees that the Owner shall be under no liability to supply any replacement ship or any piece or part thereof during any period when the Vessel is unusable and shall not be liable to the Bareboat Charterer or any other Group Member or any other party to any of the Transaction Documents as a result of the Vessel being unusable;
|
(d)
|
the Bareboat Charterer confirms that it has not, in entering into this Bareboat Charter, relied on any condition, warranty or representation by the Owner or any person on the Owner’s behalf (whether authorised or not), express or implied, whether arising by law or otherwise in relation to the Vessel, including, without limitation, conditions, warranties or representations as to the description, seaworthiness, suitability, quality, merchantability, fitness for any purpose, value, state, condition, appearance, safety, durability, design or operation of any kind or nature of the Vessel, and the benefit of any such condition, warranty or representation by the Owner is hereby irrevocably and unconditionally waived by the Bareboat Charterer. To the extent permissible under applicable law, the Bareboat Charterer also waives any rights which it may have in tort in respect of any of the matters referred to above and irrevocably agrees that the Owner shall have no greater liability in tort in respect of any such matter than it would have in contract after taking account of all the foregoing exclusions. No third party making any representation or warranty relating to the Vessel or any part of the Vessel is the agent or partner of the Owner nor has any such third party authority to bind the Owner thereby;
|
(e)
|
in particular, and without prejudice to the generality of the foregoing, the Owner shall be under no liability whatsoever and howsoever arising in respect of the sickness, injury, death, loss, damage or delay of or to or in connection with any vessel (including the Vessel) or any person or property whatsoever, whether on board the Vessel or elsewhere, irrespective of whether such injury, death, loss, damage or delay shall arise from the seaworthiness, merchantability, classification, condition, design, quality, operation, performance, capacity or fitness for use or as to the eligibility of the Vessel other than if such injury or death arises as a result of the gross negligence or wilful misconduct of the Owner, and the Bareboat Charterer agrees to indemnify, defend and hold the Owner harmless from any of above liabilities (other than injury or death if they arise from the gross negligence or wilful misconduct of the Owner);
|
(f)
|
the Owner (including any of its shareholders, Affiliates, consultants, agents and their respective shareholders, directors, officers, employees, or representatives) shall not under any circumstances be liable to the Bareboat Charterer (including any of its assigns, novatees, successors, shareholders, Affiliates, consultants, agents, Managers, clients and their respective shareholders, directors, officers, employees, or representatives) for any indirect, special, exemplary, punitive or consequential losses and damages, arising from, or relating to or in connection with this Bareboat Charter (including but not limited to loss of profit, loss of use, loss of production, loss of revenue, loss of time, loss of contracts or otherwise, in all cases where direct or indirect) irrespective of cause (in contract, at law, in tort or otherwise) unless otherwise provided for in Clause 33.1(b) above in case of injury or death as a result of the gross negligence or wilful misconduct of the Owner; and
|
(g)
|
if any defects, repairs or replacements are required for the Vessel within any applicable period of warranty pursuant to any relevant construction contract for the Vessel, the Owner agrees to use reasonable efforts to assist the Bareboat Charterer in requiring the relevant shipyard to repair, replace or remedy any defects which are subject of the warranty or recover from the relevant shipyard any expenditure incurred in carrying out such repairs, remedies or replacements by the Bareboat Charterer. The cost of any assistance rendered by the Owner shall be for the Bareboat Charterer.
|
CLAUSE 34.
|
MANAGEMENT AND CREW
|
(a)
|
The Managers or other internationally recognised and reputable manager(s) shall be appointed by the Bareboat Charterer to provide and oversee the technical and commercial management of the Vessel in accordance with the scope of each relevant Management Agreement which must be in form and substance approved by the Owner. The Bareboat Charterer reserves the right/flexibility to change a Manager, subject to the Owner's prior written consent (which shall not be unreasonably withheld or delayed). Without prejudice to the foregoing, the Bareboat Charterer is fully responsible for the technical management of the Vessel (including the arrangements regarding the crew and insurance) at the Bareboat Charterer’s own risk and expense.
|
(b)
|
The Bareboat Charterer shall ensure that properly qualified officers and ratings are engaged to man the Vessel throughout the Charter Period in accordance with the requirements of the Flag State, Insurances.
|
(c)
|
In the event that following notification by the Owner, the Bareboat Charterer fails to comply or remedy the non-compliance with any provisions of Clause 34(a) within a period of five (5) days or of Clause 34(b) within a period of fourteen (14) days of receipt by the Bareboat Charterer of such notice, in addition to all other rights that the Owner may be entitled to under this Bareboat Charter, the Owner shall have the right to terminate this Bareboat Charter in accordance with Clause 45 (
Owner’s Rights of Termination
).
|
CLAUSE 35.
|
FLAG AND CLASS
|
CLAUSE 36.
|
IMPROVEMENT, ADDITIONS AND CHANGES
|
36.1
|
Subject to Clause 10(a)(ii) in Part II of this Bareboat Charter and the Owner’s consent, the Bareboat Charterer has the right to fit additional equipment and to make improvements and additions at its expense and risk provided that if such additional equipment, improvements and additions cannot be removed from the Vessel without causing any damage to the Vessel, such damage will be made good by the Bareboat Charterer at its time and expense, and always subject to the satisfaction of the Classification Society’s surveyor. Title to such additional equipment, improvement and addition not removed prior to redelivery of the Vessel shall vest in the Owner on such re-delivery, without requirement for compensation.
|
36.2
|
Subject to Clause 10(a)(ii) in Part II of this Bareboat Charter, the Bareboat Charterer shall, subject to obtaining the Classification Society’s surveyor’s consent, have the right to make structural improvements, additions and changes to the Vessel at the Bareboat Charterer's time, expense and risk provided that the same will not diminish the Fair Market Value, marketability or the title of the Vessel during or at the end of the Charter Period.
|
36.3
|
Notwithstanding the above, the Bareboat Charterer shall defend, indemnify and hold harmless the Owner against any proven and, if applicable, documented loss, damage or expense incurred by the Owner arising out of or in relation to (i) any additional equipment, improvements and/or additions; and/or (ii) any structural improvements, additions and/or changes, fitted or made to the Vessel.
|
CLAUSE 37.
|
CHARTER PERIOD
|
37.1
|
The Charter Period shall be one hundred and twenty (120) calendar months with effect from the Delivery Date unless otherwise terminated in accordance with the terms of this Bareboat Charter.
|
CLAUSE 38.
|
INITIAL CHARTER – HIRE AND VALUE MAINTENANCE RATIO
|
38.1
|
Initial Charter-Hire
|
38.2
|
Value Maintenance Ratio
|
(i)
|
provide the Owner with additional security, which in the reasonable opinion of the Owner is sufficient to rectify the non-compliance of the Value Maintenance Ratio; or
|
(ii)
|
pay such amount to the Owner to reduce the Outstanding Capital Balance to rectify the non-compliance of the Value Maintenance Ratio.
|
CLAUSE 39.
|
CHARTER-HIRE
|
39.1
|
The Bareboat Charterer shall pay Charter-hire monthly in advance to the Owner’s Account on each Charter-hire Payment Date. Such Charter-hire shall, at the option of the Bareboat Charterer (such option to be declared not less than five (5) Business Days prior to Delivery), consist of:
|
(a)
|
120 consecutive equal monthly payments of USD1,068,750 (“
Fixed Charter-Hire
”); and
|
(b)
|
interest accrued on the Charter-hire Principal in respect of the actual number of days elapsed during the Hire Calculation Period ending on the relevant Payment Date calculated on the basis of a year of three hundred sixty (360) days at a rate per annum which is the sum of (a) the Margin and (b) LIBOR in respect of such Hire Calculation Period (“
Variable Charter-Hire
”).
|
(a)
|
the Margin; and
|
(b)
|
the rate notified to the Bareboat Charterer by the Owner as soon as practicable and in any event before Variable Charter-Hire is due to be paid in respect of that Hire Calculation Period, to be that which expresses as a percentage rate per annum being the cost to the Owner of funding the Charter-hire Principal from whatever comparable source it may select.
|
(a)
|
at or about noon (London time) on the Quotation Day for the relevant Hire Calculation Period the relevant rate on the Thomson Reuters screen is not available and none or only one of leading banks in the London interbank market supplies a rate to the Owner to determine LIBOR for Dollars for the relevant Hire Calculation Period; or
|
(b)
|
before close of business in Hong Kong on the Quotation Day for the relevant Hire Calculation Period, the cost to the Owner of funding the Outstanding Capital Balance from whatever source it may select would be in excess of LIBOR.
|
39.2
|
The Vessel shall not be deemed off-hire at any time and the Bareboat Charterer’s obligation to pay all Charter-hire and all other amounts payable under this Bareboat Charter shall be absolute and unconditional under any and all circumstances and shall not be affected by any circumstances of any nature whatsoever and whether or not similar to any of the matters set out in paragraphs (a) to (l) below, including, without limitation:
|
(a)
|
any termination of the Time Charter for whatever reason and any period following such termination where the Vessel has no employment;
|
(b)
|
any set-off, counterclaim, recoupment, defence or other right which the Bareboat Charterer may at any time have against the Owner or any other person for any reason whatsoever;
|
(c)
|
the unavailability of the Vessel for any reason, including (but not limited to) any invalidity or other defect in the title, the seaworthiness, condition, design, operation, performance, capacity, merchantability, security interest, or fitness for use or eligibility of the Vessel for any particular trade or operation or for documentation under the laws of any country or any damage to the Vessel;
|
(d)
|
any change, extension, indulgence or other act or omission in respect of any indebtedness or obligation of the Bareboat Charterer, or any sale, exchange, release or surrender of, or other dealing in, any security for any such indebtedness or obligation;
|
(e)
|
any incapacity or defect in powers of the Bareboat Charterer, or any irregular exercise thereof by, or lack of authority of, any person purporting to act on behalf of the Bareboat Charterer;
|
(f)
|
any damage to or loss (including a Total Loss, subject to the terms of this Bareboat Charter), destruction, capture, seizure, judicial attachment or arrest, forfeiture or marshal's or other sale of the Vessel;
|
(g)
|
any libel, attachment, levy, detention, sequestration or taking into custody of the Vessel or any restriction, prevention, interference, interruption or cessation in the use or possession thereof by the Bareboat Charterer for any reason whatsoever, or any inability to engage in any particular trade;
|
(h)
|
any insolvency, bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceedings by or against the Bareboat Charterer;
|
(i)
|
any failure or delay on the part of the Owner whether with or without fault on its part, in performing or complying with any of the terms or covenants hereof unless such failure constitutes an Owner’s Default;
|
(j)
|
any lack of due authorizations or documentation for the Vessel for any particular trade or use, or invalidity, illegality or other defect of this Bareboat Charter;
|
(k)
|
any event or declaration of force majeure affecting the Time Charter; and
|
(l)
|
any circumstances which, but for this provision, might operate to exonerate the Bareboat Charterer from liability, whether in whole or in part, under this Bareboat Charter.
|
39.3
|
Notwithstanding anything to the contrary contained in this Bareboat Charter, all payments by the Bareboat Charterer hereunder (whether by way of Charter-hire or otherwise) shall be made:
|
(a)
|
on or before the relevant Charter-hire Payment Date and if any day for the making of any payment hereunder is not a Business Day, the due date for payment of the same shall be the immediately preceding Business Day; and
|
(b)
|
in US Dollars in funds for same day value to the Owner’s Account or to such other bank account as may from time to time be notified by the Owner to the Bareboat Charterer by not less than five (5) days’ prior written notice.
|
39.4
|
All payments under this Bareboat Charter shall be made without any set-off or counterclaim whatsoever and free and clear of and without withholding or deduction for, or on account of, any present or future income, freight, stamp and other taxes, levies, imposts, duties, fees, charges, restrictions or conditions of any nature (collectively "
Taxes
"). If the Bareboat Charterer is so required to make any withholding or deduction from any such payment, the sum due from the Bareboat Charterer in respect of such payment will be increased to the extent necessary to ensure that, after making such withholding or deduction, the Owner receives a net sum equal to the amount which they would have received had no such withholding or deduction been required to be made. The Bareboat Charterer shall promptly deliver to the Owner any receipts, certificates or other proof evidencing the amounts, if any, paid or payable in respect of any such withholding or deduction as aforesaid.
|
39.5
|
In the event of failure by the Bareboat Charterer to pay on the due date for payment thereof, or in the case of any sum payable on demand, the date of demand therefor, any Charter-Hire or other amount payable by it under this Bareboat Charter, the Owner may make a demand under the Bareboat Charter Guarantee to settle any due but unpaid Charter-Hire or any other amount payable by the Bareboat Charterer under this Bareboat Charter.
|
39.6
|
In addition, the Bareboat Charterer shall pay to the Owner on demand interest on such Charter-Hire or other amount payable by it under this Bareboat Charter from the day following the due date to the date of actual payment (both before and after any relevant judgment or winding up of the Bareboat Charterer) at the rate of 5.85% per annum (if a Fixed Interest Charter-Hire option has been selected) or, as the case may be, 2.00% per annum (if a Fixed Charter-Hire plus Variable Charter-Hire option has been selected). Any interest payable under this Bareboat Charter shall accrue from day to day and shall be calculated on the actual number of days and shall be compounded at such intervals as the Owner shall determine and shall be payable on demand.
|
39.7
|
Time of payment of the Charter-hire and all other sums payable under this Bareboat Charter shall be of the essence in this Bareboat Charter subject to any applicable grace periods for payment.
|
CLAUSE 40.
|
COVENANTS ON TIME CHARTER AND CHARTER-HIRE
|
40.1
|
The Bareboat Charterer shall ensure that the Vessel is employed throughout the Charter Period pursuant to the Time Charter or alternative charter arrangements acceptable to the Owner and that all Earnings shall be paid without deduction directly to the Operating Account.
|
40.2
|
Provided that the Bareboat Charterer is in compliance with all the terms and conditions under this Bareboat Charter and further subject to Clause 40.3 below, the Bareboat Charterer shall have the right to continue to sub-charter the Vessel on a time charter basis to the Time Charterer, provided that such sub-charter shall (a) not diminish, release or discharge any and all obligations and liabilities of the Bareboat Charterer hereunder, (b) not affect, reduce or prejudice any and all the rights, interests, benefits and remedies of the Owner (or the Mortgagee) under this Bareboat Charter and applicable laws, (c) not impose upon the Owner any further obligations or liabilities other than those which have already expressly existed in the Bareboat Charter and which were known to the Owner at the date of the Bareboat Charter on the annual anniversary of the date of this Charter and provided further that the Bareboat Charterer shall provide the Owner with copies of the Vessel’s employment details.
|
40.3
|
The Owner will enter into quiet enjoyment arrangements with the Time Charterer substantially in the form of the direct agreement attached hereto as Appendix IV.
|
40.4
|
Without prejudice to Clause 40.2, if the Bareboat Charterer intends to let the Vessel to any party with a duration of more than one (1) calendar year (inclusive), the Bareboat Charterer shall obtain the prior written consent from the Owner (which consent shall not be unreasonably withheld or delayed) and if such consent is obtained, the Bareboat Charterer undertakes that:
|
(a)
|
the Bareboat Charterer shall execute an assignment of such time charter in favour of the Owner in such form and substance required by the Owner whereby all the title, Earnings, interest and rights under such time charter shall be assigned to the Owner and shall use all reasonable efforts that the time charterer acknowledge such assignment to the Owner in writing in such form reasonably required by the Owner; and
|
(b)
|
the Bareboat Charterer shall irrevocably instruct such time charterer to pay all the moneys and Earnings payable to the Bareboat Charterer under the time charter exclusively to the Operating Account and shall procure that the time charterer undertakes to the Owner in writing to comply with such payment instruction; and
|
(c)
|
if the Owner so requests, further create a charge over the Operating Account in favour of the Owner and to do all the things to effect and perfect such charge, if the provisions of this clause 40.4 are not adhered to, and the Owner shall have the right to demand additional security to be provided by the Bareboat Charterer to the Owner’s satisfaction.
|
CLAUSE 41.
|
RISK AND INSURANCES
|
41.1
|
The Bareboat Charterer shall bear all risks whatsoever and howsoever arising from use, navigation, operation, possession and/or maintenance of the Vessel throughout the duration of the Bareboat Charter.
|
41.2
|
Insurance Coverage
|
(a)
|
The Bareboat Charterer undertakes to the Owner that throughout the Charter Period to insure and keep the Vessel insured pursuant to Box 29 and Box 31 of Part I, Clause 13 of Part II of this Bareboat Charter, and otherwise agreed hereof:
|
(i)
|
against fire and usual marine risks (including excess risks and increased value insurance) on terms not less wide than Nordic Marine Insurance Plan of 2013 or later versions, based on an amount not less than the higher of (a) the Fair Market Value of the Vessel and (b) 120% of the total amount of the Outstanding Capital Balance;
|
(ii)
|
against war risks, including terrorism cover and extended to:
|
(iii)
|
against full protection and indemnity risks with a member club of the International Group of P&I Clubs and in the international marine insurance market and to be at a limit which compares with market practice for similar type vessels (and currently being for an amount not less than USD 1,000,000,000);
|
(iv)
|
against such other risks of whatsoever nature and howsoever arising as reasonably required by the Owner (following the agreement of the Bareboat Charterer, such agreement not to be unreasonably withheld) if such a cover is available in the marine insurance market and it is common marine market practice to have it in place.
|
(b)
|
The Bareboat Charterer may, in its own discretion, take out FD&D cover and charterer’s liability insurance. Such cover and insurance shall be for the sole account and benefit of the Bareboat Charterer.
|
(c)
|
The Owner shall be at liberty to take out Innocent owner’s (Lessor’s) Interest Insurance and Innocent Owner’s (Lessor’s) Interest Additional Perils Insurance in relation to the Vessel for an amount equivalent to the amounts set out in this Clause 41 and the Bareboat Charterer shall from time to time within seven (7) Business Days on demand reimburse the Owner for all reasonably and properly documented costs, premiums and expenses paid or incurred by the Owner in connection with the same provided that the Bareboat Charterer’s reimbursement shall be no more than the prevailing international market price;
|
(d)
|
Moreover, the Bareboat Charterer shall from time to time within seven (7) Business Days of demand reimburse the Owner for all reasonably and properly documented costs, premiums and expenses paid or incurred by the Owner in effecting Mortgagee’s Insurance Interest policy (MII), and other insurance policies (if not covered under this Clause) if required by the Mortgagee in connection with the Owner’s Loan Agreement for the purpose of financing or re-financing the acquisition of the Vessel.
|
(e)
|
In case the Vessel is required to enter any port, place, or zone that is involved in a state of war, warlike operations, or hostilities, civil war, civil strife, rebellion, or piracy, whether or not such risks are real and or are wrongly perceived, or whether there be a declaration of war or not, or where it might reasonably be expected to be subject to capture, seizure or arrest, or to a hostile act by a belligerent power (the term ‘power’ means any de jure or de facto authority or any other purported governmental organization maintaining naval, military or air forces), the Bareboat Charterer shall effect such additional insurance cover in order to allow the Vessel to enter into any port, place or zone affected by any of the matters referred to in this Clause.
|
(f)
|
The Bareboat Charterer shall pay the costs of such additional insurance cover.
|
41.3
|
General Terms and Conditions
|
(a)
|
in Dollars, free of cost and expense to the Owner, and in the joint names of the Owner and the Bareboat Charterer and the Mortgagee (if the Owner so reasonably requires) as co-assured. The Bareboat Charterer shall ensure that the interest of the Owner as owner of the Vessel and/or any assignee of the Owner in respect of Owner’s interest in the insurances shall be recorded on all policies and shall be confirmed to the Owner in conformity with applicable market practice;
|
(b)
|
on pre-agreed terms consistent with prevailing international market practice from time to time agreed between the Bareboat Charterer and the Owner; punctually to pay all premiums, calls, contributions or other sums payable in respect of all such Insurances and to produce copies of all relevant receipts or other evidence of payment when reasonably requested by the Owner;
|
(c)
|
through such international reputable brokers which shall from time to time be approved in writing by the Owner (the "
Approved Brokers
") (which shall not be unreasonably withheld) prior to placement of and/or renewal of the Insurances (save that the Owner’s consent shall not be required in cases where any renewals are being effected with the same Approved Brokers and the Bareboat Charterer has notified the Owner in writing), and with such international reputable insurance companies, underwriters, war risks and protection and indemnity associations (the "
Approved Insurer(s)
") which shall from time to time be approved in writing by the Owner prior to placement of and/or renewal of the Insurances (save that the Owner’s consent shall not be required in cases where any renewals are being effected with the same Approved Insurers and the Bareboat Charterer has notified the Owner in writing). Any Approved Insurer shall mean one with a minimum of Standard & Poor's rating of BBB+ or above or Moody’s rating of A or above of AM Best rating of A- or above at the time when the relevant policy is procured / effected, and a protection and indemnity association which is a member of the International Group of Protection and Indemnity Clubs, and/or the Norwegian War Club.
|
(d)
|
The Bareboat Charterer undertakes to provide the Owner and/or the Mortgagee with letter(s) of undertaking, loss payable clauses and/or notices of assignment, the wording and form of which shall be acceptable to the Owner and/or the Mortgagee and the Approved Insurer(s), and undertakes to incorporate the same into the aforesaid insurances;
|
(e)
|
At least fifteen (15) days prior to expiry of the relevant policies, contracts or entries, (i) propose to the Owner the insurance broker(s) to be employed by the Bareboat Charterer for renewal of such Insurances, and of the proposed renewed amounts and the risks to be covered (save that the Owner’s consent shall not be required in cases where any renewals are being effected with the same Approved Brokers on the existing terms); (ii) procure that the Approved Brokers and/or the Approved Insurers shall promptly confirm in writing to the Owner as and when each of such renewals is effected and shall provide the Owner with details of the instructions as the Owner may require (except for the pricing information), and shall notify the Owner forthwith in the event of any renewal not being effected by the Bareboat Charterer as aforesaid.
|
(f)
|
If any of the Insurances form part of a fleet cover, the Bareboat Charterer shall procure the Approved Brokers to obtain a written confirmation from the Approved Insurer(s) not to cancel the Insurances for reason of non-payment of premiums for other vessels under such fleet cover or of premiums for such other Insurances, and, only to the extent allowed under the relevant terms of the Insurances, procure that the Approved Brokers obtain a written confirmation from the Approved Insurer(s) that they shall neither set-off against any claims in respect of the Vessel any premiums due in respect of that of other vessels under such fleet cover or any premiums due for other Insurances. Notwithstanding the above, the Bareboat Charterer undertakes to issue a separate policy containing the foregoing agreements in respect of the Vessel being part of a fleet cover if requested by the Owner and the Bareboat Charterer always undertakes to the Owner that the insurances of the other vessels under a fleet cover and its performance (including any default and/or invalidity under any of the insurances of the other vessels) thereunder shall not in any event prejudice or adversely affect any and all the Insurances for the Vessel (including, but not limited to, the validity and enforceability of the Insurances for the Vessel).
|
(g)
|
Arrange for the execution of such guarantees as may from time to time be required by any protection and indemnity or war risks association. The Bareboat Charterer shall be obliged to timely arrange or procure to be timely arranged and provide for acceptable security to any party whosoever who may demand the same including and not limited to, third party claimants in the event the P&I Club and/or Hull and War risk insurers do not agree to provide the same for whatsoever reason.
|
(h)
|
Procure that the interest of the Owner shall be endorsed and, where the Insurances have been assigned to the Owner by means of a notice of assignment, the Owner shall be furnished with the originals or certified true copies thereof, and the Bareboat Charterer shall procure that the Approved Brokers shall issue to the Owner the standard form of letter(s) of undertaking of such Approved Broker(s) as soon as practically possible but in any event within ten (10) Business Days after the Delivery Date; The Bareboat Charterer shall use its reasonable endeavours to procure that the Approved Brokers incorporate any reasonable comments of the Owner and/or the Mortgagee.
|
(i)
|
Produce to the Owner upon demand copies (certified by a lawyer on behalf of the Bareboat Charterer or the Approved Brokers as being true copies) of all policies, certificates of insurance or entry, cover notes and binders relating to the Insurances and to furnish the Owner with any other evidence of the existence of the Insurances as the Owner may request. The Bareboat Charterer shall procure that the Approved Brokers and the Approved Insurers give to the Owner such information as to the Insurances taken out or being or to be taken out in compliance with the Bareboat Charterer's obligations under the foregoing provisions or as to any other matter which may be relevant to the Insurances as the Owner may reasonably request (except for the pricing information of the Insurances).
|
(j)
|
Procure that any protection and indemnity and/or war risks associations (if applicable and subject to the respective rules of the relevant association) in which the Vessel is for the time being entered shall record/confirm the interests of the Owner and the Mortgagee, including endorsing the relevant Loss Payable Clause (taking into account the associations' standard wording) on the relevant certificate of entry or policy and shall furnish the Owner with a certified true copy of such certificate of entry, letter(s) of undertaking and/or notices of assignment as may from time to time be required by the Owner, in form and substance acceptable to the Owner and the Mortgagee.
|
(k)
|
Undertakes to furnish the Owner from time to time with a detailed report signed by an independent firm of marine insurance brokers or an independent firm of international reputable insurance consultants appointed by the Bareboat Charterer dealing with the Insurances maintained on the Vessel and stating the opinion of such firm as to the adequacy thereof, if so requested by the Owner, but at the cost of the Bareboat Charterer.
|
(l)
|
The Bareboat Charterer shall do all things necessary and provide all documents, evidence and information to enable the Owner to collect or recover any moneys which shall at any time become due to the Owner in respect of the Insurances.
|
(m)
|
Undertakes not to employ the Vessel or suffer the Vessel to be employed otherwise than in conformity with the terms of the instruments of insurance aforesaid (including any warranties express or implied therein) without first obtaining the consent of the insurers to such employment and complying with such requirements as to extra premium or otherwise as the insurers may prescribe.
|
(n)
|
To apply all sums receivable under the Insurances which are paid to the Bareboat Charterer in accordance with the Loss Payable Clauses in repairing all damage and/or in discharging the liability in respect whereof the insurance moneys shall have been received.
|
(o)
|
The Bareboat Charterer shall ensure that the policies and/or entries in respect of the Insurances against hull and marine risks and/or war risks are, in each case, duly endorsed with the interests of the Owner to the effect that, subject always to the rights and entitlements of the Bareboat Charterer contained herein, payment of a claim for a Total Loss of the Vessel will be made in accordance with Clause 41.6 below and payment in respect of a claim which is not for a Total Loss of the Vessel shall, subject to (i) and (ii) below, be made to the Bareboat Charterer who shall apply the same to make good the loss and fully repair all damage and otherwise to maintain the Vessel in accordance with its obligations hereunder provided however: (i) that claim in respect of a Major Casualty shall be paid to the Bareboat Charterer with the prior written consent of the Owner (which shall not be unreasonably withheld) and, subject to any consent which may be required from the Mortgagee, such consent shall be given provided that the Bareboat Charterer has furnished the Owner with documentary evidence to the satisfaction of the Owner that necessary repairs have been effected and the Bareboat Charterer has made payment for the same, and (ii) that all such sums shall be payable as aforesaid only until such time after the occurrence of a Charterer's Default as the Owner may otherwise direct to the contrary and all such sums of any and all claims shall be paid to the Owner or to the Mortgagee in its capacity as the Owner’s assignee.
|
(p)
|
The Bareboat Charterer shall ensure that the entries in respect of protection and indemnity risks provide for moneys payable thereunder to be paid either (i) to the claimant in settlement of the Vessel's liability to him, or (ii) (unless and until after the occurrence of a Charterer's Default the Owner shall direct that those shall be paid to the Owner), the Bareboat Charterer or other party in reimbursement for any payment properly made to a third party or claimant.
|
41.4
|
The Parties shall be entitled to review the requirements of this Clause 41 from time to time in order to take account of any amendment to the existing laws of, or adoption of new laws by, any relevant jurisdiction after the date of this Bareboat Charter.
|
41.5
|
The Bareboat Charterer shall not do any act or permit or suffer any act to be done whereby any insurance required as aforesaid shall or may be suspended, impaired or become defective, unless otherwise specifically permitted under the insurance policies. The Bareboat Charterer shall not make any alteration to any of the insurances referred to in this Clause without prior written approval by the Owner (which shall not be unreasonably withheld) and shall not make, do, consent or agree to any act or omission which might render any such instrument of insurance invalid or unenforceable or render any sum payable thereunder repayable in whole or in part.
|
41.6
|
Total Loss
|
CLAUSE 42.
|
CARGO EXCLUSION CLAUSE
|
42.1
|
All cargoes to be carried shall be limited to those permitted by the Vessel’s Classification Society’s and those referred to in the Vessel’s specifications. All cargoes are to be carried in conformity with IMO and international and local regulations, and the requirement of the Insurances, using best practice at all times.
|
CLAUSE 43.
|
OWNER’S RIGHT OF SALE AND MORTGAGE
|
43.1
|
Owner’s Right of Sale
|
43.2
|
Owner’s Right of Mortgage
|
CLAUSE 44.
|
TERMINATION EVENTS
|
44.1
|
Each of the following events shall be a “
Termination Event
” for the purpose of this Bareboat Charter:
|
(a)
|
if the Bareboat Charterer or any Obligor fails to make any payment of any amount under this Bareboat Charter or any Finance Document on its due date (unless its failure to pay is caused by an administrative or technical error and taking into account any applicable grace period) or, in the case of sums expressed to be payable by the Bareboat Charterer on written demand, within five (5) Business Days following the date of the written demand therefor;
|
(b)
|
the Bareboat Charterer fails to comply with any term of the following Clauses within the relevant period: Clause 34 (
Management and Crew
), Clause 35 (
Flag and Class
), Clause 40 (
Covenants on Golar Eskimo Time Charter and Charter-hire)
excepting Clause 40.1 which is subject to the Put Option, Clause 41 (
Risks and Insurance)
specifically Clause 41.5, or 0 (
Charterer’s Undertakings
); and if such failure to comply is capable of being remedied, but is not remedied within five (5) Business Days of the Owner giving notice to the Bareboat Charterer of such failure to comply;
|
(c)
|
if the Guarantor fails to comply with Clause 7.2 (
Financial covenants
) of the Bareboat Charter Guarantee;
|
(d)
|
any circumstance or event which is referred to as a “Termination Event” in this Bareboat Charter or otherwise agreed by the parties to be referred to as a “Termination Event” for the purpose of this Bareboat Charter;
|
(e)
|
the Bareboat Charterer or any other Obligor fails to observe or perform any of its obligations under any Finance Document within any applicable grace periods for remedy. For the avoidance of doubt, failure to provide any document or information requested shall constitute a remediable breach within twelve (12) Business Days for the purposes of this clause provided that no insurance or P&I cover is interrupted;
|
(f)
|
any representation or warranty of the Bareboat Charterer or any Obligor in the Finance Documents or in any document or certificate furnished to the Owner in connection herewith or therewith is or proves to have been untrue, inaccurate or misleading in any material respect, when made or deemed made and materially affects the obligations of the Bareboat Charterer under this Bareboat Charter;
|
(g)
|
any consent, authorisation, licence or approval necessary for this Bareboat Charter to be or remain as valid and legally binding obligations of the Bareboat Charterer, or to enable the Bareboat Charterer to perform its obligations hereunder or thereunder, is adversely modified or is not granted or is revoked, suspended, withdrawn or terminated or expires and is not renewed and such modification, revocation, suspension, withdrawal, termination, expiry or lapse or renewal is not remedied within a period of twelve (12) Business Days;
|
(h)
|
if a petition is filed or order made or an effective resolution passed by a court or any other authority having competent jurisdiction, for the compulsory or voluntary winding-up or dissolution of the Bareboat Charterer or an Obligor (other than for the purposes of amalgamation or reconstruction in respect of which the prior written approval of the Owner has first been obtained) or any proceedings analogous to winding-up proceedings are begun in any jurisdiction in relation to the Bareboat Charterer or an Obligor, excepting any frivolous or vexatious proceedings which are discharged, stayed or dismissed within sixty (60) days of commencement;
|
(i)
|
if the Bareboat Charterer or an Obligor stops payment generally or ceases to carry on or suspends payment of, or is unable to or admits inability to pay, all or a substantial part of its debts as they fall due or makes any special arrangement or composition with its creditors generally or shall otherwise become or be adjudicated insolvent;
|
(j)
|
if an administrator, administrative receiver, receiver or trustee or similar official is appointed over the whole, or a material part, of the property, assets or undertaking of the Bareboat Charterer or an Obligor or if the Bareboat Charterer or an Obligor applies for, or consents to, any such appointment;
|
(k)
|
the Bareboat Charterer or an Obligor applies to any court or other tribunal for, a moratorium or suspension of payments with respect to all or a substantial part of its debts or liabilities;
|
(l)
|
the Bareboat Charterer or an Obligor convenes or gives notice to convene a meeting of all or any class of its creditors with a view to proposing or making, or proposes or makes, any arrangement or composition with or assignment for the benefit of all or any class of its creditors or declares, or applies to any court or other tribunal for, a moratorium or suspension of payments with respect to all or a substantial part of its debts or liabilities;
|
(m)
|
if an encumbrancer takes possession of, or distress or execution is levied upon, the whole, or a material part of the property, assets or undertaking of the Bareboat Charterer and the Bareboat Charterer or an Obligor fails to release the same within sixty (60) days (or a longer period as agreed between the Owner and the Bareboat Charterer or such Obligor) from the date of the possession, distress or execution;
|
(n)
|
any Security Document does not create legal, valid, binding and enforceable security over the assets charged under that Security Document or the ranking or priority of such security is adversely affected;
|
(o)
|
if the Bareboat Charterer or an Obligor ceases, or threatens to cease, to carry on all or a substantial part of its business or disposes or threatens to dispose (other than for full arm's length consideration) of the whole or a material part of its property, assets or undertaking without the prior consent of the Owner;
|
(p)
|
if an event of default occurs in relation to any Financial Indebtedness of the Bareboat Charterer or the Guarantor exceeding ten million Dollars (US$10,000,000) or, in each case the equivalent in any other currency;
|
(q)
|
if the Bareboat Charterer ceases to be a company resident in the jurisdiction of its incorporation without the prior consent of the Owner;
|
(r)
|
if it becomes impossible or unlawful for the Bareboat Charterer in any material respect to fulfil any of its obligations under this Bareboat Charter;
|
(s)
|
if any Environmental Incident or other event or series of events occurs which, in the reasonable opinion of the Owner, has or is likely to have a Material Adverse Effect;
|
(t)
|
if the Bareboat Charterer repudiates this Bareboat Charter or does or causes or permits to be done any act or thing evidencing an intention to repudiate this Bareboat Charter
|
(u)
|
any Security Interest in respect of any of the property (or part thereof) which is the subject of any Security Document becomes unenforceable;
|
(v)
|
if the Bareboat Charterer fails to provide additional security as set out in Clause 38.1 to the Owner’s satisfaction;
|
(w)
|
if an auditor of any Obligor qualifies its report on the audited financial statements of any Obligor in any way whatsoever which is reasonably likely to have a negative impact on the Bareboat Charterer’s ability to perform under this Bareboat Charter;
|
(x)
|
if the Vessel is arrested, confiscated, seized, taken in execution, impounded, forfeited, or detained (unless caused by an act or omission of the Owner) in exercise or purported exercise of any possessory lien or other claim, provided that such arrest or detention is not discharged within 60 days after such arrest or detention (or such longer period as may be agreed);
|
(y)
|
if a Manager of the Vessel changes without the prior written consent of the Owner (such consent not to be unreasonably withheld or delayed);
|
(z)
|
if the authority or ability of the Bareboat Charterer or an Obligor to conduct its business is limited or wholly or substantially curtailed by any seizure, expropriation, nationalisation, intervention, restriction or other action by or on behalf of any government, regulatory or other authority or other person in relation to the Bareboat Charterer or an Obligor or any of its assets;
|
(aa)
|
any litigation, alternative dispute resolution, arbitration or administrative proceedings is taking place, or threatened against the Bareboat Charterer or an Obligor or any of its assets, rights or revenues which, if adversely determined, might have a Material Adverse Effect;
|
(ab)
|
if the Bareboat Charterer fails to exercise its Purchase Obligation in Clause 49;
|
(ac)
|
if the Bareboat Charterer fails to purchase the Vessel pursuant to the Put Options in Clause 49.5;
|
(ad)
|
if the MOA is terminated for whatever reason;
|
(ae)
|
if the Bareboat Charterer fails to comply with Clause 48.6(e); or
|
(af)
|
a Golar Tundra
Termination Event occurs in accordance with the terms of the Golar Tundra Transaction Documents.
|
44.2
|
The occurrence of a Termination Event shall entitle the Owner (but not be bound and without prejudice to the Bareboat Charterer’s obligations) by notice to the Bareboat Charterer to terminate this Bareboat Charter forthwith and recover any and all amounts due and payable hereunder and/or resulting from such termination in the manner as set out in Clause 45 (
Owner’s Rights on Termination
).
|
44.3
|
The Owner shall not be under any liability whatsoever to the Bareboat Charterer for loss or damage whatsoever occasioned by the Bareboat Charterer for the termination of this Bareboat Charter and the Bareboat Charterer shall indemnify the Owner on demand for any and all liabilities, losses, costs and expenses incurred by the Owner pursuant to this Clause or otherwise resulting from the occurrence of a Termination Event always provided that the Bareboat Charterer shall not be liable for any liabilities, losses, costs and expenses incurred by the Owner where the Termination Event has occurred due to the gross negligence or wilful misconduct of the Owner.
|
CLAUSE 45.
|
Owner’s Rights on Termination
|
45.1
|
At any time following Delivery, upon the occurrence of a Termination Event, the Owner may, by notice to the Bareboat Charterer immediately, or on such date as the Owner shall specify, terminate this Bareboat Charter. Upon the Owner’s termination, the Owner shall be entitled to demand that the Bareboat Charterer pay the Termination Sum to the Owner on the Termination Date or such later date as the Owner shall specify in exchange for transfer of ownership in the Vessel to the Bareboat Charterer or if the Bareboat Charterer is unable to pay the Termination Sum within 3 days of receipt of such notice (but not bound and without prejudice to the Bareboat Charterer’s obligations hereunder) to retake possession of the Vessel by way of Redelivery as set out in Clause 50.
|
45.2
|
Upon the Owner’s notice of retaking the Vessel, the Bareboat Charterer shall, unless otherwise instructed by the Owner, assist the Owner with the Demobilisation of the Vessel from the Project Site and redeliver the Vessel to the Owner in accordance with Clause 50 and pursuant to the notice issued by and from the Owner pursuant to Clause 45.1, and, (a) at the nearest safe and available port practicable for redelivery or at such other port as the Owner may reasonably specify or at the Project Site; (b) with her Class maintained without any conditions or recommendation; (c) free of average damage affecting the Vessel's Class; (d) with all the Vessel's Classification, trading, national and international certificates that the Vessel had when she was delivered by the Owner to the Bareboat Charterer under this Bareboat Charter, valid and un-extended without conditions or recommendations and falling due for a minimum of three (3) months from the time of redelivery; (e) in the same or as good structure, state, condition and Class as that in which she was on Delivery, fair wear and tear not affecting Class excepted; and (f) with all such spare parts and other equipment she had at Delivery. The Bareboat Charterer shall also procure that the Master and Crew shall obey the lawful orders of the Owner as regards the navigation and management of the Vessel and shall no longer obey the Bareboat Charterer.
|
45.3
|
Unless covered by the Termination Sum which the Bareboat Charterer has paid, the Bareboat Charterer shall pay, indemnify or reimburse the Owner on demand, for all Losses suffered by the Owner arising out of or in connection with any Termination Event caused by the actions of the Bareboat Charterer including, without prejudice to the generality of the foregoing, all liabilities, costs and expenses (including but not limited to legal and advisory fees) so incurred arising from the Demobilisation from the Project Site and Redelivery including but not limited to the costs of recovering possession of, and in moving, storing, insuring and maintaining, the Vessel and in carrying out any works or modifications required together with interest thereon pursuant to Clause 39.5 from the date on which the relevant Losses were suffered by the Owner until the date of payment or reimbursement thereof (both before and after any relevant judgment or winding up of the Bareboat Charterer).
|
45.4
|
Any amount due to the Owner under this Clause 45 shall bear interest pursuant to Clause 39.6 (before and after any relevant judgment or any winding-up of the Bareboat Charterer) from the Termination Date up to and including the date of the Owner's actual receipt thereof.
|
45.5
|
Notwithstanding the termination of this Bareboat Charter pursuant to Clause 44 (
Termination Events
), the Bareboat Charterer shall irrevocably and unconditionally continue to comply with its obligations under this Bareboat Charter and shall be obliged to take such action as Owner may prescribe to protect the Vessel until the Vessel is redelivered to the Owner in accordance with Clause 50.
|
45.6
|
In the event that the Bareboat Charterer fails within ten (10) Business Days to meet in full the Owner’s demand for payment of the Termination Sum and accrued interest pursuant to this Clause, the Owner may at its option:
|
(a)
|
where applicable and pursuant to its rights under the Assignment of Charter, approach the Time Charterer with a view to getting their consent to any alternative arrangements in relation to performing the Time Charter;
|
(b)
|
sell the Vessel free of any charter, lease or other engagement concerning the Vessel on arm's length terms at market price in which event;
|
(i)
|
an amount equal to the aggregate of the expenses, disbursements, taxes, costs and losses whatsoever (including but not limited to legal and advisory fees) as may have been incurred by the Owner in respect of the sale of the Vessel shall be deducted from the gross proceeds of the sale of the Vessel; the balance of the sale proceeds is referred to hereinafter as the “
Net Sale Proceeds
”;
|
(ii)
|
an amount equal to the Termination Sum shall be deducted from the Net Sale Proceeds. If the Net Sale Proceeds are insufficient to satisfy all amounts due and payable from the Bareboat Charterer to the Owner hereunder, the Bareboat Charterer and the Obligors shall pay the shortfall to the Owner;
|
(iii)
|
if there is any balance after deduction of the Termination Sum, such balance shall be paid to the Bareboat Charterer;
|
(iv)
|
if the tendering and/or sale of the Vessel fails due to whatever reason, provided that the Owner has taken all customary procedures in the process of the tendering and/or sale of the Vessel, the Vessel shall be at the sole and discretional disposal of the Owner thereafter without prejudice to the Bareboat Charterer’s obligation to pay the Termination Sum and any other accrued liabilities hereunder; or
|
(a)
|
exercise any of the remedies provided to a mortgagee under Chapter 3 of the Marshall Islands Maritime Act 1990, as amended.
|
45.7
|
The Owner shall be entitled to all its rights and remedies under any or all the Security Documents.
|
CLAUSE 46.
|
ASSIGNMENT AND SUB-CHARTERING
|
46.1
|
This Bareboat Charter shall be binding upon and enure for the benefit of the Owner and the Bareboat Charterer and their respective successors and permitted assignees.
|
46.2
|
The Bareboat Charterer shall not be entitled to assign or transfer any of its rights or obligations under this Bareboat Charter, unless with the prior written consent of the Owner. Should written consent of the Owner be provided, the Bareboat Charterer shall be responsible for all associated costs and expenses.
|
46.3
|
In addition to the Owner's right to transfer its rights under Clause 43 (
Owner’s Right of Sale and Mortgage
), the Owner shall be entitled, subject to Clause 48.3 below, to assign any of its rights and interest under this Bareboat Charter to the Mortgagee or, provided the prior written consent of the Bareboat Charterer has been obtained (such consent not to be unreasonably withheld or delayed), to a financial institution or trust fund, leasing company or other entity regularly engaged in or established for the purpose of making, purchasing or investing in loan securities or other financial assets.
|
46.4
|
The Bareboat Charterer undertakes that it will not sub-charter the Vessel on a bareboat basis to any party except with the prior consent in writing of the Owner and subject to such terms and conditions as the Owner shall approve.
|
CLAUSE 47.
|
BAREBOAT CHARTERER'S REPRESENTATIONS AND WARRANTIES
|
47.1
|
The Bareboat Charterer acknowledges that the Owner has entered into this Bareboat Charter in reliance on representations by the Bareboat Charterer in the following terms, and the Bareboat Charterer hereby represents and warrants to the Owner as follows:
|
(a)
|
the Bareboat Charterer is a corporation duly organized, registered, validly existing and in good standing under the laws of its establishment jurisdiction, has the corporate power and authority to execute, perform and comply with its obligations under, and has taken all necessary action to authorise its entry into this Bareboat Charter and each Transaction Document to which it is a party, and the transactions contemplated by the Transaction Documents to which it is a party, and to carry on its business as presently conducted;
|
(b)
|
in respect of the Bareboat Charterer, all governmental, corporate, shareholder’s and other Consents, licenses, approvals, Project Authorisations, waivers and actions necessary for the execution, performance and registration (if appropriate) of this Bareboat Charter and the Transaction Documents to which it is a party, have been made or obtained or will be made or obtained and are or will be in full force and effect at the relevant time;
|
(c)
|
subject to the Legal Reservations, this Bareboat Charter, and the Transaction Documents to which it is a party, constitutes legal, valid and binding obligations of the Bareboat Charterer and the execution or performance by the Bareboat Charterer of this Bareboat Charter and the Transaction Documents to which it is a party, is not, and will not during the Charter Period, be inconsistent with and does not contravene (i) any existing provision of law, statute, decree, rule or regulation of any governmental of official authority or body, or (ii) the constitutional documents of the Bareboat Charterer or (iii) any judgment, decree, franchise, permit, agreement, contract or other undertaking to which the Bareboat Charterer is a party or which is binding on the Bareboat Charterer or any of its assets. Subject to the Legal Reservations, each of the Finance Documents to which the Bareboat Charterer may become a party will, when executed, constitute its legal, valid and binding agreement and the execution or performance by the Bareboat Charterer of such Finance Documents will not be inconsistent with and will not contravene (i) any provision of law, statute, decree, rule or regulation of any governmental of official authority or body, or (ii) the constitutional documents of the Bareboat Charterer or (iii) any judgment, decree, franchise, permit, agreement, contract or other undertaking to which the Bareboat Charterer is a party or which is binding on the Bareboat Charterer or any of its assets;
|
(d)
|
subject to any Legal Reservations, this Bareboat Charter and the Transaction Documents, to which it is a party constitutes the valid and legally binding and enforceable obligations of the Bareboat Charterer ranking at least pari passu with all other of its unsecured obligations and liabilities (actual or contingent) other than any such preferred by law;
|
(e)
|
to the best of its knowledge and belief, there are no actions, suits, proceedings, insolvency or creditors’ process, administrative or arbitrations taking place, pending, or, threatened, before any court, administrative agency, arbitrator or governmental body against the Bareboat Charterer, or against any of the assets of the Bareboat Charterer which will, if adversely determined, materially adversely affect or be likely to materially adversely affect the normal operation of the Vessel under this Bareboat Charter;
|
(f)
|
the execution, delivery, registration (if necessary) or performance by the Bareboat Charterer of this Bareboat Charter or any transaction herein contemplated or the compliance with the terms hereof does or will not constitute a default under, or result in the creation or imposition of any lien, security interest, charge or Encumbrance upon any property or assets of the Bareboat Charterer pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other instrument to which the Bareboat Charterer is a party or is subject or by which it is bound;
|
(g)
|
no Termination Event has occurred and/or is continuing;
|
(h)
|
on the Delivery Date, no Obligor or any of their respective Subsidiaries, or any of their respective directors, officers or employees, or to the knowledge of the Bareboat Charterer, any persons acting on any of their behalf in connection with the Bareboat Charter is a Restricted Party or is aware of any valid claim, action, suit, proceeding or investigation against it with respect to sanctions by any Sanctions Authority.
|
(i)
|
to the best of its knowledge and belief, no event or omission has occurred which entitles any creditor(s) of the Bareboat Charterer to declare any Financial Indebtedness of US$10,000,000
due and payable prior to its specified maturity or to cancel or terminate any loan or other facility or to decline to make any advances or further advance thereunder;
|
(j)
|
any and all documents, certificates, statement or other information furnished to the Owner by or on behalf of the Bareboat Charterer in connection with the transactions contemplated hereby or thereby (including but without limitation to, financial information) do or did not at the time when made contain any untrue statement of a fact or omit to state a material fact necessary in order to make the statements contained herein and therein not misleading.
|
47.2
|
The representations and warranties contained in this Clause shall be deemed to be made on the date of this Bareboat Charter and repeated by the Bareboat Charterer on each Charter-hire Payment Date as if made with reference to the facts and circumstances existing on such date and the rights of the Owner in respect thereof shall survive delivery or redelivery of the Vessel until the end of the Charter Period or Security Period, whichever is the later.
|
CLAUSE 48.
|
OWNER’S REPRESENTATIONS AND WARRANTIES
|
48.1
|
The Owner acknowledges that the Bareboat Charterer has entered into this Bareboat Charter in reliance on representations by the Owner in the following terms, and the Owner hereby represents and warrants to the Bareboat Charterer as follows and all representations and warranties of the Owner hereunder shall subsist throughout the Security Period:
|
(a)
|
the Owner is a corporation duly organized, registered, validly existing and in good standing under the laws of its establishment jurisdiction, has the corporate power and authority to execute and perform this Bareboat Charter and the Transaction Documents to which it is a party, and to carry on its business as presently conducted and contemplated hereby and thereby;
|
(b)
|
all governmental, corporate, shareholder’s and other consents, licenses, approvals, authorizations, waivers and actions necessary for the execution, performance and registration (if appropriate) of this Bareboat Charter, and the Transaction Documents to which it is a party, have been made or obtained and are in full force and effect;
|
(c)
|
this Bareboat Charter and the Transaction Documents to which it is a party, constitutes legal, valid and binding obligations of the Owner and the execution or performance by the Owner of this Bareboat Charter and the Transaction Documents to which it is a party, is not, and will not during the Charter Period, be inconsistent with and does not contravene (i) any existing law or regulation of any governmental of official authority or body, or (ii) the constitutional documents of the Owner;
|
(d)
|
the execution, delivery, registration (if necessary) or performance by the Owner of this Bareboat Charter or any transaction herein contemplated or the compliance with the terms hereof does or will not contravene any provision of law, statute, decree, rule or regulation to which the Owner is subject or any judgment, decree, franchise or permit applicable to the Owner, or will not conflict with, or result in any breach of, any of the terms, covenants, conditions and provisions of, or constitute a default under, or result in the creation or imposition of any lien, security interest, charge or Encumbrance upon any property or assets of the Owner pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other instrument to which the Owner is a party or is subject or by which it is bound; and
|
(e)
|
the Owner has not entered into any Owner’s Loan Agreement without having first provided the Bareboat Charterer with a Quiet Enjoyment Letter.
|
48.2
|
The representations and warranties contained in this Clause hereof shall be deemed to be repeated by the Owner on each Charter-hire Payment Date as if made with reference to the facts and circumstances existing on such date and the rights of the Bareboat Charterer in respect thereof shall survive delivery or re-delivery of the Vessel until the end of the Charter Period or Security Period, whichever is later.
|
48.3
|
Provided that the Bareboat Charterer does not breach any terms of this Bareboat Charter, the Owner hereby agrees not to disturb or interfere with the Bareboat Charterer’s possession and quiet enjoyment of the Vessel during the Charter Period.
|
48.4
|
Provided that the Time Charterer does not breach any terms of the Time Charter, the Owner hereby agrees not to disturb or interfere with the Time Charterer’s possession and quiet enjoyment of the Vessel during the Charter Period.
|
48.5
|
The Bareboat Charterer covenants with the Owner and undertakes throughout the Charter Period that the Bareboat Charterer shall, at its own cost,
|
(a)
|
provide to the Owner the unaudited quarterly management accounts of the Bareboat Charterer and the Guarantor (in such form as is customarily prepared) as soon as available and in no event later than ninety (90) days after the end of the relevant financial period;
|
(b)
|
provide to the Owner the audited annual financial statements of the Guarantor and unaudited annual financial statements of the Bareboat Charterer signed by its chief financial officer as soon as available and in no event later than one hundred and eighty (180) days after the end of its financial year, such accounts and financial statements to be prepared in accordance with US GAAP and audited by Ernst and Young or another internationally recognized accountancy firm approved by the Owner. To the extent that it is required by the Bareboat Charterer and the Bareboat Charter Guarantor to prepare their financial reports, the Owner will provide a copy of (a) its quarterly unaudited accounts no later than sixty (60) days after the end of the relevant period and (b) its audited financial statements no later than ninety (90) days after the end of the relevant period.
|
(c)
|
provide to the Owner as soon as practicable after the same are instituted or known to the Bareboat Charterer, details of any material litigation, arbitration or administrative proceedings involving the Bareboat Charterer or any Obligor, which are reasonably likely to have a Material Adverse Effect on the ability of the Bareboat Charterer or any Obligor to perform its obligations under this Bareboat Charter or, as the case may be, any other Transaction Documents;
|
(d)
|
provide to the Owner, promptly following request by the Owner, certified copies of all Class records, Class certificates and survey reports and copies of all management reports;
|
(e)
|
provide to the Owner, promptly following request by the Owner, all such information as it may from time to time regarding the Vessel, compliance with the ISM Code, the ISPS Code and Annex VI (Regulation for the Prevention of Air Pollution from Ships) to MARPOL, the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001;
|
(f)
|
provide to the Owner, as soon as practicable following the request by the Owner, such further information in the possession or control of the Bareboat Charterer with respect to the financial condition and operations of the Bareboat Charterer;
|
(g)
|
assist the Owner with any reasonable request to provide relevant documentation or information required by the Owner for the satisfaction of conditions precedent under the Owner’s Loan Agreement, so far as these conditions precedent relate to and reflect the conditions precedent set out in this Bareboat Charter;
|
(h)
|
obtain and promptly renew from time to time and will whenever so required promptly furnish certified copies to the Owner of, all such authorizations, approvals, consents and licenses (if any) as may be required under any applicable law or regulation to enable the Bareboat Charterer to perform its obligations under this Bareboat Charter or the any other Transaction Documents to which it is a party, or required for the validity or enforceability of this Bareboat Charter or the Transaction Documents to which it is a party, and the Bareboat Charterer shall in all material respects comply with the terms of the same;
|
(i)
|
notify the Owner by email of: (i) any damage to the Vessel anticipated to be in excess of the Major Casualty Amount, within 24 hours of the occurrence of the same; (ii) any occurrence resulting in the Vessel becoming or being likely to become a Total Loss, within 24 hours of the occurrence; (iii) any requirement or recommendation made by any insurer or Classification Society, or by any competent authority, which is not complied with within any time limit imposed by such insurer, Classification Society or authority; (iv) any arrest or detention of the Vessel or the exercise or purported exercise of any lien on the Vessel or any requisition of the Vessel for hire, within 24 hours of the occurrence; (v) the occurrence of any Charterer’s Default or any Time Charterer’s Default.
|
(j)
|
at all times ensure the Vessel is operated in compliance with all applicable laws, international and port state conventions, codes and regulations including, without limitation, ISM Code, the ISPS Code and Annex VI to MARPOL and ensure such compliance by the crews, employees, agents and representatives of the Bareboat Charterer and each Manager at all times;
|
(k)
|
ensure that the Vessel is in possession of a valid Safety Management Certificate, a valid International Ship Security Certificate and an International Air Pollution Prevention Certificate and in all respects in compliance with all applicable international conventions, codes and regulations, including without limitation the International Convention for Safety of Life at Sea (SOLAS) 1974 (as adopted, amended or replaced from time to time), the ISM Code and the ISPS Code, and ensure such compliance by each Manager and that each Manager shall be in possession of a Document of Compliance appropriate for the Vessel and Annex VI (Regulations for the Prevention of Air Pollution from Ships) to MARPOL;
|
(l)
|
following an inspection of the Vessel by the Owner or its representatives pursuant to Clause 48.5(m), comply with any requests from the Owner for repairs or works to the Vessel if required to ensure that the Vessel is maintained in the Class and condition required by this Bareboat Charter and if the Bareboat Charterer disputes the need for any such repairs or works the matter shall be referred to the Classification Society whose decision on such matter shall be binding on the Owner and the Bareboat Charterer;
|
(m)
|
subject to no Termination Event having occurred, once in any period of twelve (12) months, permit the Owner, subject to having given the Bareboat Charterer at least thirty (30) days’ prior written notice and the inspection or survey not interfering with the normal operation and trading of the Vessel, to inspect or survey the Vessel or instruct a duly authorized surveyor or representative to carry out such survey (at their own risk if aboard the Vessel) on its behalf and at the cost of the Bareboat Charterer in order to ascertain the condition of the Vessel and/or to inspect/procure copies of the Vessel's logs and records certified as true by the Vessel's master at any reasonable time or times upon giving a written notice to the Bareboat Charterer. After a Termination Event shall have occurred the Owner may carry out such an inspection or survey at any time and at the cost of the Bareboat Charterer. The Bareboat Charterer shall bear the cost of such inspections including without limitation the fees of any surveyor. The Bareboat Charterer shall afford all proper facilities for such inspections and give the Owner reasonable advance notice of any intended dry-docking of the Vessel where the cost of such dry-docking is likely to exceed US$7,500,000;
|
(n)
|
with at least thirty (30) days prior notice by the Owner, to request information relating to the Bareboat Charterer’s offices and to inspect any of the Bareboat Charterer’s assets, premises, books and records relating to the Vessel which accurately reflect in all material respects all of the Bareboat Charterer’s business, affairs and transactions subject to the provision of such information not interfering with the normal operations of the offices of the Bareboat Charterer or the Obligor or causing the Bareboat Charterer or Obligor to breach its confidentiality obligations to third parties or investors;
|
(o)
|
do the following:
|
(i)
|
comply with all Environmental Laws in relation to using and operating the Vessel and immediately notify the Owner of any Environment Incident;
|
(ii)
|
obtain, maintain and ensure compliance with all requisite environmental permits in relation to using and operating the Vessel; and
|
(iii)
|
implement procedures to monitor compliance with and to prevent liability under any environmental law applicable to the use and operation of the Vessel;
|
(p)
|
carry on and conduct its business in a proper and efficient manner, keep in existence all its material rights and privileges and maintain its books and records, including the log books, in a proper and efficient manner and in the language of English;
|
(q)
|
comply in all respects with all laws and contractual obligations to which it is subject if failure so to comply would materially impair its ability to perform its obligations under this Bareboat Charter;
|
(r)
|
bear all expenses and all other costs in connection with any survey of the Vessel, if any, including the cost of docking and undocking, if required by the Classification Society and the Time Charter, as well as all repair costs incurred; and
|
(s)
|
comply fully with the provisions of Clause 41 of the Bareboat Charter;
|
(t)
|
promptly upon becoming aware of any change of law, advise the owner of any change of law or regulation which is reasonably likely to cause a Material Adverse Effect;
|
(u)
|
not enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction without the prior consent of the Owner;
|
(v)
|
except with approval of the Owner, not permit the Vessel to enter or remain in any zone which has been declared a war zone by any applicable government entity or the Vessel’s risk insurers;
|
(w)
|
except with approval of the Owner, enter into any charter commitment for the Vessel other than this Bareboat Charter and the Time Charter;
|
(x)
|
ensure that the Vessel is maintained by the Managers or another internationally recognised and reputable technical and commercial manager during the Charter Period;
|
(y)
|
on an annual basis commencing from the date of this Bareboat Charter, provide to the Owner at its cost, a Valuation for the Vessel carried out by an Approved Valuer, such Valuation to be dated not more than fifteen (15) days before the date the Valuation is required to be provided to the Owner in accordance with this clause;
|
(z)
|
throughout the Charter Period ensure that the Vessel is at all times operated and maintained in accordance with the then prevailing and generally accepted industry standards for operation and maintenance of similar vessels;
|
(aa)
|
promptly inform the Owner of:-
|
(i)
|
any material occurrence of which it becomes aware which has or which might reasonably be expected to have a Material Adverse Effect;
|
(ii)
|
any breach under this Bareboat Charter of which it becomes aware and will from time to time, if so requested by the Owner, confirm to the Owner in writing that, save as otherwise stated in such confirmation, no breach has occurred and is continuing;
|
(ab)
|
procure that there is no Change of Control without the prior consent of the Owner (such consent not to be unreasonably withheld or delayed);
|
(ac)
|
ensure that throughout the Charter Period:
|
(1)
|
Free Liquid Assets
|
(2)
|
Net Debt to EBITDA
|
(3)
|
Consolidated Tangible Net Worth
|
(4)
|
Minimum Operating Cash
|
(dd)
|
notify the Owner upon immediately becoming aware of any dispute with the Time Charterer arising out of or in relation to the Time Charter if, adversely determined, might reasonably be expected to have a Material Adverse Effect; and
|
(ee)
|
notify the Owner within ten (10) Business Days of becoming aware that the Bareboat Charterer or the Time Charterer is entitled to terminate the Time Charter.
|
48.6
|
The Bareboat Charterer further covenants with the Owner and undertakes that throughout the Charter Period, without prior written approval by the Owner:
|
(a)
|
the Bareboat Charterer shall not create or permit to subsist any Encumbrance over the Vessel (save for the Permitted Encumbrances);
|
(b)
|
without prejudice to Clause 34, the Bareboat Charterer shall not repudiate or terminate either Management Agreement or amend or vary any of its material terms of, or permit or suffer any amendment or variation of any of its material terms and procure that each Manager at all times shall comply with all relevant international and domestic regulations pertaining to the operation of the Vessel;
|
(c)
|
the Bareboat Charterer shall not incur any indebtedness other than any indebtedness incurred in the ordinary course of its business or incurred from any of its shareholders on no worse terms than those available in an arm's length transaction;
|
(d)
|
the Bareboat Charterer shall not acquire any assets other than assets acquired in the ordinary course of its business or acquired from any of its shareholders on no worse terms than those available in an arm's length transaction; and
|
(e)
|
the Bareboat Charterer shall not terminate the Time Charter or enter into mitigation or dispute resolution procedures regarding a material dispute with the Time Charterer unless approved by the Owner (such consent not to be unreasonably withheld or delayed) and shall do so if instructed by the Owner (acting reasonably); and
|
(f)
|
the Bareboat Charterer shall not agree to any material modification or changes to the specifications set out in the Time Charter without the Owner's prior written consent (such consent not to be unreasonably withheld or delayed) save for Permitted Amendments.
|
CLAUSE 49.
|
PURCHASE OPTION, PURCHASE OBLIGATION AND PUT OPTION
|
49.1
|
The Bareboat Charterer shall have the option (the “
Purchase Option
”) to purchase the Vessel on an “as is, where is” basis and to terminate this Bareboat Charter on any Purchase Option Date, provided that:
|
(a)
|
no Termination Event has occurred and is continuing, and no other event has occurred, which with the giving of notice and/or lapse of time would, if not remedied, would constitute a Termination Event;
|
(b)
|
the Bareboat Charterer shall serve the Owner with at least three (3) months prior written notice, which shall notify the Owner of its intention to exercise its purchase option and terminate this Bareboat Charter pursuant to this Clause 49.1 and shall specify the intended Purchase Option Date; and
|
(c)
|
on or before the intended Purchase Option Date, pay to the Owner the Purchase Option Price calculated in accordance with Appendix III of this Bareboat Charter.
|
49.2
|
In the event that the Bareboat Charterer exercises the Purchase Option and has fully satisfied its obligations under the said Clause 49.1, the Owner shall transfer to the Bareboat Charterer (or its nominee) all of the Owner’s rights, title and interests in and to the Vessel on the basis of "as is, where is" with any mortgage created pursuant to a Security Document and any Mortgagee’s mortgage fully discharged and free from all other Encumbrances caused by the Owner. All registration, reasonable legal or other expenses whatsoever incurred in transferring the title from the Owner to the Bareboat Charterer (or its nominee) shall be payable by the Bareboat Charterer immediately upon demand by the Owner.
|
49.3
|
In the event that the Bareboat Charterer exercises the Purchase Option the Bareboat Charterer shall (i) pay to the Owner, in addition to the Purchase Option Price referred to in Clause 49.1(c), a prepayment fee in an amount equal to 0.75% of the Purchase Option Price and (ii) indemnify the Owner on demand for any and all reasonable liabilities, losses, costs and expenses incurred by the Owner (including costs in relation to the termination of any USD interest rate swaps) pursuant to this Clause 49.
|
49.4
|
If no Purchase Option has been exercised by the Bareboat Charterer during the Charter Period, on the last day of the Charter Period, the Bareboat Charterer shall be obliged to purchase the Vessel from the Owner at the Purchase Obligation Price (the “
Purchase Obligation
”). Upon payment by the Bareboat Charterer of the Purchase Obligation Price, the Owner shall transfer to the Bareboat Charterer (or its nominee) all of the Owner’s rights, title and interests in and to the Vessel on the basis of "as is where is" with any mortgage created pursuant to a Security Document and the Mortgagee’s mortgage fully discharged and free from other Encumbrances caused by the Owner and without any further representation or warranty from the Owner. All registration, reasonable legal or other expenses directly incurred in transferring the title from the Owner to the Bareboat Charterer (or its nominee) shall be for the Bareboat Charterer’s account. If the Bareboat Charterer fails to comply with the Purchase Obligation and pay the Purchase Obligation Price within five (5) days from the date the Owner notifies the Bareboat Charter of its Purchase Obligation, the Owner shall be entitled to terminate the Bareboat Charter forthwith in accordance with Clause 45.
|
49.5
|
Commencing from the earlier of:
|
(a)
|
the Bareboat Charterer receiving notice of termination from the Time Charterer under the Time Charter; and
|
(b)
|
the time when the Time Charter is terminated, repudiated, rescinded or cancelled for any reason whatsoever,
|
49.6
|
Both the Owner and the Bareboat Charterer agree to use the form of Vessel Buyback Agreement set out in Appendix II of this Bareboat Charter for the transfer as described in this Clause 49.
|
CLAUSE 50.
|
REDELIVERY OF VESSEL
|
50.1
|
Redelivery of the Vessel shall occur if the Bareboat Charter is terminated in accordance with Clause 45 and the Owner elects to retake possession of the Vessel. Pending the actual Redelivery, the Bareboat Charterer shall be obliged at its own cost, to take such action as Owner may prescribe to protect the Vessel.
|
50.2
|
Without prejudice to Clause 45 (
Owner’s Right on Termination
), at the risk, time and expense of the Bareboat Charterer, the Bareboat Charter shall demobilise the Vessel from the Project Site and redeliver the same to the Owner hereunder within thirty (30) days of the date of the notice for Redelivery by the Owner: (i) subject to compliance with insurance policies, at the nearest safe and available port practical for the Bareboat Charterer without hindrance or interference by the courts or local authorities, or at such other port as the parties may mutually agree, within the permitted redelivery range contained herein and without prejudice to its obligations herein; (ii) with her Class maintained without any conditions or recommendation; (iii) free of average damage affecting the Vessel’s Class; (iv) with all the Vessel’s Classification, trading, national and international certificates, valid and un-extended without conditions or recommendation and falling due for a minimum of three (3) months from the time of redelivery; (v) in the same or as good structure, state, condition and Class as that in which she was deemed to be delivered under Clause 3 of Part II of this Bareboat Charter, fair wear and tear not affecting Class excepted; (vi) with all such spare parts and other equipment (or equivalent replacements) she had at the time of Delivery under this Bareboat Charter; (vii) having been dry-docked in accordance with the rules and regulations of the Classification Society; (viii) having had her underwater parts treated with ample anti-fouling to last for the ensuing period up to the next scheduled dry docking of the Vessel; (ix) free of any cargo and passengers (unless otherwise agreed by the Owner); (x) with all information generated during the Charter Period in respect of the use, possession, operation, navigation and the physical condition of the Vessel, whether or not such information is contained in the Bareboat Charterer’s equipment, computer or property; (xi) deletion of any bareboat charter registration in favour of the Bareboat Charterer and reinstatement of the underlying registry in favour of the Owner if applicable.
|
50.3
|
The Owner shall, during the period of thirty (30) days prior to the end of the Charter Period, be entitled (subject to the Bareboat Charterer not having exercised its Purchase Option at that time), at its own risk, expense and time, to place one or more representatives on board the Vessel for familiarization purposes. The representative(s) to be subject to the Bareboat Charterer's policies at Owner's risk, expense, and time. The Vessel shall be deemed to be repossessed by the Owner from the Bareboat Charterer upon the Vessel’s arrival at the port referred to in Clause 50.2 and the Owner’s confirmation of receipt of the Vessel.
|
50.4
|
Without prejudice to the generality or the provisions of Clause 48.5(l), (m) and (n), Part II, any inspection of the Vessel carried out pursuant thereto may include an under-water inspection of the Vessel provided that the same shall be carried out during such time as she is in port.
|
50.5
|
Such inspection of the Vessel's parts below the deepest load line shall be carried out by a Class-approved diver with the Class surveyor in attendance at the Owner's risk and expense on arrival at port of redelivery. If the rudder, propeller, bottom or other underwater parts below the deepest load line are found broken, damaged or defective, so as to affect the Vessel's certificate of Class, such defects shall be made good at the Bareboat Charterer's expense and time to the reasonable satisfaction of the Classification Society.
|
CLAUSE 51.
|
INDEMNITY
|
51.1
|
The Bareboat Charterer agrees that is shall at all times during this Bareboat Charter assume all liability for and shall defend, indemnify and hold Owner harmless from and against:
|
(a)
|
any and all reasonable and documented costs and expenses directly incurred by the Owner as a result of its entering into of this Bareboat Charter, the Transaction Documents and the Security Documents, including without limitation the costs, expenses, fees, charges for legal services, evaluation, consultancy, survey, registration of relevant charges, perfection of any securities and others arising out of or in connection with this Bareboat Charter (for the avoidance of doubt, the Bareboat Charterer shall have the benefit of any fee cap or other fee arrangement agreed by the Owner with its advisers);
|
(b)
|
any and all reasonable and documented costs and expenses directly incurred in connection with this Bareboat Charter and any Security Document or the Vessel, and any costs, charges, or expenses which the Bareboat Charterer have agreed to pay under this Bareboat Charter and shall be claimed or assessed against or paid by the Owner;
|
(c)
|
any Taxes (as defined in Clause 39.4) imposed on, or suffered by, the Owner;
|
(d)
|
any and all Losses suffered or incurred by the Owner and arising directly or indirectly out of the design, manufacture, delivery, non-delivery, purchase, importation, registration, ownership, chartering, sub-chartering, possession, control, use, operation, condition, maintenance, repair, replacement, refurbishment, modification, overhaul, insurance, sale or other disposal, return or storage of or loss of or damage to the Vessel or otherwise in connection with the Vessel including but not limited to those Losses described in Clause 45.3 and including any and all claims in tort or in contract by a sub-charterer of the Vessel from the Bareboat Charterer or by the holders of any Bills of Lading issued by the Bareboat Charterer;
|
(e)
|
any and all Losses suffered or incurred by the Owner which result directly or indirectly from claims which may at any time be made on the ground that any design, article or material of or in the Vessel or the operation or use thereof constitutes or is alleged to constitute an infringement of patent or copyright or registered design or other intellectual property right or any other right whatsoever;
|
(f)
|
any and all Losses suffered or incurred by the Owner (acting reasonably) in preventing or attempting to prevent the arrest, confiscation, seizure, taking in execution, impounding, forfeiture or detention of the Vessel, or in securing the release of the Vessel therefrom;
|
(g)
|
any and all Losses suffered or incurred by Owner as a result of any termination of the Time Charter due to the act or omission of the Bareboat Charterer or the Time Charterer including but not limited to all reasonable costs directly or indirectly incurred in connection with selling the Vessel pursuant to Clause 43.1 and Redelivery pursuant to Clause 50, unless caused by the Owner;
|
(h)
|
any and all Losses suffered or incurred by the Owner with respect to or as a direct result of the presence, escape, seepage, spillage, leaking, discharge or migration from the Vessel of oil or any other hazardous substance, including without limitation, any claims asserted or arising under the US Oil Pollution Act of 1990 (as same may be amended and/or re-enacted from time to time hereafter) or similar legislation, regardless of whether or not caused by or within the control of the Bareboat Charterer; and
|
(i)
|
any and all Losses incurred or suffered by the Owner in liquidating, employing or prepaying funds acquired or borrowed to purchase or finance or refinance the Vessel (including any costs incurred in unwinding any associated interest rate or currency swaps or currency futures) following any default in payment hereunder or the occurrence of any Termination Event.
|
51.2
|
If, under any applicable law, whether as a result of judgment against the Bareboat Charterer or the liquidation of the Bareboat Charterer or for any other reason, any payment to be made by the Bareboat Charterer under or in connection with this Bareboat Charter is made or is recovered in a currency other than the currency (the "
currency of obligation
") in which it is payable pursuant to this Bareboat Charter then, to the extent that the payment (when converted into the currency of obligation at the rate of exchange on the date for the determination of liabilities permitted by the applicable law) falls short of the amount unpaid under this Bareboat Charter, the Bareboat Charterer shall as a separate and independent obligation, fully indemnify the Owner against the amount of the shortfall; and for the purposes of this sub-clause "rate of exchange' means the best rate at which the Owner is able on the relevant date to purchase the currency of obligation with the other currency.
|
51.3
|
The indemnities contained in this Clause 51, and each other indemnity contained in this Bareboat Charter, shall survive any termination or other ending of this Bareboat Charter and any breach by, or repudiation or alleged repudiation by, the Bareboat Charterer or the Owner of this Bareboat Charter.
|
51.4
|
All moneys payable by the Bareboat Charterer under this Clause 51 shall be paid on demand but in any event within five (5) Business Days after the date of the Owner’s demand.
|
CLAUSE 52.
|
COMMUNICATION
|
(a)
|
In the case of the Owner:
|
Postal Address:
|
CMB financial leasing Ltd, 21F, China Merchants Bank Building, No. 1088, Lujiazui Ring Road, Shanghai, China. 200120
|
(b)
|
In the case of the Bareboat Charterer:
|
Postal Address:
|
c/o Golar Management Ltd, 13th Floor, 1 America Square, 17 Crosswall, London, EC3N 2LB, United Kingdom
|
CLAUSE 53.
|
LAW AND JURISDICTION
|
53.1
|
Governing law
|
53.2
|
Proceedings
|
(a)
|
The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of or in connection with this Bareboat Charter (including a dispute regarding the existence, validity or termination of this Deed) (a
Dispute
).
|
(b)
|
The parties agree that the courts of Hong Kong are the most appropriate and convenient courts to settle Disputes and, accordingly, that they shall not argue to the contrary.
|
(c)
|
Clauses 53.2(a) and 53.2(b) are for the benefit of the Owner only. As a result, the Owner shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Owner may take concurrent proceedings in any number of jurisdictions
|
CLAUSE 54.
|
NO PARTNERSHIP OR AGENCY
|
CLAUSE 55.
|
SEVERABILITY CLAUSE
|
CLAUSE 56.
|
THIRD PARTY RIGHTS
|
CLAUSE 57.
|
CUMULATIVE RIGHTS AND NO WAIVER
|
CLAUSE 58.
|
CONFIDENTIALITY
|
58.1
|
to its directors, employees, advisors, consultants, agents, subcontractors and Affiliates who have a need to know for the performance of the project and the Bareboat Charter and who have been informed of the obligations of confidentiality herein, and each Party shall ensure that its directors, employees, advisors, consultants, agents, subcontractors and Affiliates comply with this Clause 58;
|
58.2
|
to financial advisors, investment bankers, underwriters, brokers, lenders or other lending or financial institution advising on, providing or considering the provision of financing to the receiving Party;
|
58.3
|
to any third party to whom is required to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
58.4
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administration or other proceedings or disputes in respect of the terms of this Bareboat Charter;
|
CLAUSE 59.
|
CONDITIONS PRECEDENT
|
59.1
|
The effectiveness of this Bareboat Charter (save for Clauses 39.2 which shall become effective immediately upon the execution of this Bareboat Charter) shall be subject to the fulfilment of the following conditions precedent:
|
(a)
|
the Owner’s receipt of the following documents (where applicable, in a form and substance reasonably required by the Owner):
|
(i)
|
certified true copies of the up-to-date Certificate of Incorporation and the Memorandum and Articles of Association (or, in each case, its equivalent in its place of incorporation) of each Obligor;
|
(ii)
|
an original copy of the up-to-date Good Standing Certificate of each Obligor (or its equivalent in its place of incorporation);
|
(iii)
|
such documentary evidence (including the board of directors' resolutions) legally sufficient to show the due corporate approval by any Obligor of this Bareboat Charter and any Transaction Documents to which such Obligor is a party and the due authorisation by such Obligor in favour of a person or persons to execute for and on behalf of such Obligor this Bareboat Charter and any Transaction Documents to which such Obligor is a party and any other notices and documents required in connection therewith, amongst other things, including:
|
A.
|
such Obligor’s certified copy of board of directors' resolutions or, in the case of the Bareboat Charterer only, shareholders’ resolutions which approves the transaction contemplated therein; and
|
B.
|
in the case of the Bareboat Charterer only, notarized, or in respect of each other Obligor, copy of Power of Attorney in favour of the signatory/ies by such Obligor in respect of any Transaction Document to which such Obligor is a party
|
(b)
|
a certificate of incumbency of each Obligor including a list of those signatories of the applicable party who are authorised to execute the Transaction Documents to which such Obligor is a party together with specimen signatures;
|
(c)
|
a certificate of the Bareboat Charterer (signed by a Director or officer), confirming that guaranteeing or securing, as appropriate, the Bareboat Charter would not cause any guarantee, security or similar limit binding on any Obligor to be exceeded;
|
(d)
|
evidence satisfactory to the Owner that the Bareboat Charterer has received evidence from the Time Charterer as to the due execution of the Time Charter and the due incorporation of the Time Charterer and the Time Charter Guarantor, their power and authority to enter into and perform each relevant Charter Document, in each case only as relevant, and all other documents and instruments to give effect to the same;
|
(e)
|
a copy of each of the Project Documents, duly executed by the parties thereto, dated and certified as a true and complete copy thereof by a duly authorised officer and/or the company secretary of the Bareboat Charterer in an officer’s certificate which contains the confirmation (if applicable) that these documents have not been amended from the versions provided to the Owner prior to the date of this Bareboat Charter;
|
(f)
|
a copy of any authorisation or other document, opinion or assurance which the Owner considers to be necessary (if it has notified the Bareboat Charter accordingly) in connection with the entry into and performance of the transactions contemplated by any Transaction Document or for the validity and enforceability of any Transaction Document;
|
(g)
|
fulfilment of all conditions precedent to the sale of the Vessel under the MOA and evidence of delivery of the Vessel pursuant to the MOA;
|
(h)
|
the Group Structure Chart;
|
(i)
|
a due diligence report addressed to the Owner from Norton Rose Fulbright (Asia) LLP in relation to the Time Charter;
|
(j)
|
such evidence as the Owner may reasonably require as to Consents and Project Authorisations in relation to The Government of Hashemite Kingdom of Jordan or otherwise;
|
(k)
|
agreed form legal opinions from:
|
(l)
|
a final opinion in form and substance satisfactory to the Owner from the Insurance Advisor as to the adequacy of the planned Insurances in respect of the Vessel.
|
(m)
|
Financial Statements in respect of the Bareboat Charterer as at their respective last financial year;
|
(n)
|
evidence of acceptance of appointment by each service of process agent appointed or required to be appointed under the Transaction Documents by an Obligor;
|
(o)
|
such documentary evidence relating to the Bareboat Charterer and the Guarantor as the Owner may require to satisfy its “know your customer” regulatory obligations;
|
(p)
|
evidence that all fees, costs and expenses due under the Bareboat Charter and each Transaction Document have been paid by the Bareboat Charterer; and
|
(q)
|
evidence satisfactory to the Owner than the Vessel is registered with the Flag State(s).
|
59.2
|
As condition precedent to delivery of the Vessel under this Bareboat Charter, the Bareboat Charterer shall prior to or on the Delivery Date, obtain and deliver to the Owner the following documents in form and substance satisfactory to the Owner:
|
(a)
|
evidence as supported by the insurance broker’s original statement (including all insurance policies) that the Vessel is adequately insured in accordance with the provisions of this Bareboat Charter, draft of which shall be provided to the Owner for comments and or approval at least seven (7) Business Days before the Delivery Date;
|
(b)
|
duly executed original Security Documents in favour of the Owner (together with all notices, consents, acknowledgements, letters and other documents required to be received, given or exchanged pursuant to the aforesaid Security Documents other than the letter of undertakings from the Approved Brokers and Approved Insurers);
|
(c)
|
certified copy of each Management Agreement;
|
(d)
|
copy of the valid and current Document of Compliance under the ISM Code in respect of each Manager;
|
(e)
|
a written statement from the Bareboat Charterer that, as at the Delivery Date, no event of default or breach under Time Charter has occurred which is continuing; and
|
(f)
|
on the Delivery Date, each of the representations and warranties contained in Clause 47 being true and correct in all material respects by reference to the facts and circumstances then existing.
|
CLAUSE 60.
|
CONDITIONS SUBSEQUENT
|
60.1
|
The continued effectiveness of this Bareboat Charter shall be subject to the fulfilment of the following conditions subsequent:
|
(a)
|
on or before 31 December 2015 (or such later date as the parties may agree), evidence of end use in relation to the proceeds received by the Bareboat Charterer from the Owner under the MOA for the sale and purchase of the Vessel;
|
(b)
|
on or before 31 December 2015 (or such later date as the parties may agree), the Owner’s receipt of an executed original of the acknowledgment to the Assignment of the Time Charter Documents from the Time Charterer and the Time Charter Guarantor; and
|
(c)
|
from time to time, any document that the Mortgagee may reasonably require in connection with this Bareboat Charter.
|
CLAUSE 61.
|
FURTHER AMENDMENTS
|
CLAUSE 62.
|
NOMINATION
|
CLAUSE 63.
|
REGISTRATION
|
CLAUSE 64.
|
ADDITIONAL CLAUSES
|
CLAUSE 65.
|
CONCLUSIVE AGREEMENT
|
THE OWNER
By: ______________________
Name:
Title: Director / Attorney-in-fact
|
THE CHARTERER
By: ________________________
Name:
Title: Director / Attorney-in-fact
|
End of Charter Year
|
Purchase Option Price (USD)
|
3
|
225,800,000
|
4
|
214,400,000
|
5
|
202,000,000
|
6
|
189,100,000
|
7
|
175,200,000
|
8
|
160,800,000
|
9
|
145,000,000
|
BAREBOAT CHARTERER
|
|
|
SIGNED
by
For and on behalf of
GOLAR ESKIMO CORPORATION
In the presence of
|
)
)
)
|
Brian Tienzo
|
|
|
Signature/Title
|
OWNER
|
|
|
SIGNED
by
For and on behalf of
SEA 23 LEASING CO. LIMITED
In the presence of
|
)
)
)
|
Zhou Ling
|
|
|
Signature/Title
|
Confidential
Execution Version
|
||||
|
Dated
4 November
2015
|
|
||
|
||||
GOLAR ESKIMO CORPORATION
as Seller
SEA 23 LEASING CO. LIMITED
as Buyer
|
||||
|
Memorandum of Agreement
|
|
||
|
(1)
|
Sea 23 Leasing Co. Limited, a company incorporated in Hong Kong with its registered office at Room 1803-4, 18/F, Bank of America Tower, 12 Harcourt Road, Central, Hong Kong in its capacity as Buyer; and
|
(2)
|
Golar Eskimo Corporation (Reg. No. 60998), a company incorporated in Republic of The Marshall Islands with its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960 in its capacity as Seller).
|
(A)
|
Golar Eskimo Corporation in each of its separate capacities as Seller and Bareboat Charterer, Golar LNG Partners LP as Guarantor, and Sea 23 Leasing Co. Limited in each of its separate capacities as Buyer and Owner have entered into a Common Terms Agreement dated 4 November 2015 setting out the defined terms in respect of the transaction.
|
(B)
|
The Seller and the Time Charterer have entered into the Time Charter pursuant to which the vessel m.v. “Golar Eskimo” (“
Vessel
”), has been time chartered to the Time Charterer for ten (10) years upon the terms and conditions therein specified.
|
(C)
|
The obligations of the Time Charterer under the Time Charter have been guaranteed by the Time Charter Guarantor.
|
(D)
|
The Seller has now agreed to transfer and sell the Vessel to the Buyer and the Buyer has agreed to purchase and take delivery of the Vessel from the Seller in accordance with this MOA.
|
(E)
|
Upon the Buyer taking delivery of the Vessel under this MOA, the Buyer will charter the Vessel to the Bareboat Charterer in accordance with the Bareboat Charter.
|
1
|
Definitions
|
1.1
|
Terms and conditions defined in the Common Terms Agreement shall have the same meaning when used in this MOA, including the Recitals hereto, unless otherwise defined herein.
|
1.2
|
Unless a contrary indication appears, in the event of any conflict or inconsistency between any provision of this MOA and any provision of the Bareboat Charter, the provisions of the Bareboat Charter shall prevail.
|
2
|
Sale of the Vessel
|
2.1
|
The Seller hereby agrees to sell to the Buyer and the Buyer hereby agrees to buy from the Seller the Vessel described below pursuant to the terms and conditions of this MOA:
|
2.2
|
The Vessel will be deemed delivered under the Bareboat Charter immediately upon delivery under this MOA.
|
2.3
|
The Vessel will on the Delivery Date be delivered by the Seller to the Buyer. Subject to compliance with the conditions in Clause 4 of this MOA, on the Delivery Date the Buyer shall accept and take delivery of the Vessel from the Seller, and the Vessel shall be deemed to be delivered under the Bareboat Charter by the Buyer to the Bareboat Charterer.
|
3
|
Purchase Price
|
3.1
|
The Purchase Price shall be the lower of (a) US$285,000,000 and (b) the Fair Market Value.
|
3.2
|
The Seller shall appoint two (2) Approved Valuers from the Approved Valuers List to each carry out a Valuation of the Vessel. The Approved Valuers shall each provide the Buyer and the Seller with a Valuation Certificate not more than thirty (30) days before the Delivery Date. The Fair Market Value shall be the lower of the Valuations set out in the two (2) Valuation Certificates.
|
3.3
|
The reasonable costs of providing such Valuation Certificates by the Approved Valuers shall be for the Seller's account.
|
4
|
Buyer's Obligation to Take Delivery
|
(a)
|
the Buyer (acting reasonably) is satisfied that on Delivery the Time Charter and the Time Charter Guarantee are each duly executed and legally effective and that all hire and other moneys payable by the Time Charterer thereunder have been and are being paid in accordance with the terms of the Time Charter and that there have been and are unlikely to be any breaches or disputes thereunder and that no event of termination has occurred or is reasonably likely to occur thereunder;
|
(b)
|
the Buyer has carried out a physical inspection (“
Inspection
”) of the Vessel and the Vessel’s Classification records, and declared in writing to the Seller that the Vessel is acceptable and ready for delivery, with present Class maintained, free from any damage, Class conditions and/or recommendations affecting the Vessel's Class, and with all Class certificates and trading certificates (both national and international) clean and valid;
|
(c)
|
Clause 11 of the MOA regarding the Vessel's condition on Delivery has been complied with;
|
(d)
|
the Bareboat Charter and the Bareboat Charter Guarantee have been duly executed and the Bareboat Charterer has confirmed in writing to the Owner that it will accept the Vessel and will take delivery of the same under the Bareboat Charter;
|
(e)
|
satisfactory evidence that the Existing Mortgage which the Existing Lenders have over the Vessel and other Existing Vessel Security is discharged, re-assigned and released or will be discharged, re-assigned and released immediately prior to Delivery;
|
(f)
|
the receipt by the Buyer of all Finance Documents, duly executed and delivered in form and substance satisfactory to the Buyer;
|
(g)
|
the receipt by the Buyer of all documents and evidence set out in Clause 8 of this MOA;
|
(h)
|
the Seller's confirmation in writing that Clause 9 of this MOA has been complied with; and
|
(i)
|
the Seller's confirmation in writing that all Consents and Project Authorisations required in connection with the Project and/or the Vessel have been obtained or effected and are in full force and effect and valid under applicable local law.
|
5
|
Payment of the Purchase Price
|
5.1
|
Upon all conditions set out in Clause 4 being satisfied and complied with, the Buyer shall on the Delivery Date pay to the Seller the
Actual Purchase Price
in an amount based on the following formula: AP = P less I.
|
(a)
|
AP
stands for the actual purchase price payable by the Buyer to the Seller on the Delivery Date.
|
(b)
|
P
stands for the Purchase Price.
|
(c)
|
I
stands for the Initial Charter-hire.
|
5.2
|
The Parties agree that the Initial Charter-hire shall be deemed to be paid by way of set-off by the Bareboat Charterer to the Owner on the Delivery Date.
|
5.3
|
On the Delivery Date, the Buyer shall, subject to the conditions set out in Clause 4 being satisfied and complied with, pay the Actual Purchase Price in Dollars to the nominated bank account notified by the Seller to the Buyer in writing no later than ten (10) Business Days in advance. Any charge from the Buyer's bank, including intermediate bank(s), if any, incurred for remitting the Actual Purchase Price shall be for the Buyer's account and any charge from the Seller's bank, including intermediate bank(s), if any, incurred
in receiving the Actual Purchase Price shall be for the Seller's account.
|
6
|
Time and place of Delivery and notices
|
6.1
|
If none of the circumstances set out in Clause 6.2 below have occurred, the Vessel shall be delivered and taken over safely afloat at the Project Site on the Delivery Date as follows:
|
(a)
|
subject to the conditions in Clause 4 being satisfied, the Vessel shall be delivered by the Seller to the Buyer; however in any case, the Delivery shall take place before the Cancelling Date; and
|
(b)
|
upon Delivery of the Vessel to the Buyer under this MOA, the Vessel shall be deemed delivered by the Buyers to the Bareboat Charterer under the Bareboat Charter.
|
6.2
|
If the Vessel becomes an actual, constructive or compromised total loss before Delivery and/or before the provisions of Clause 8 (Documentation) have been satisfied by the Seller, this MOA and the Bareboat Charter shall become null and void.
|
7
|
Spares, bunkers and other items
|
7.1
|
The Seller shall deliver the Vessel to the Buyer "as is, where is" and with everything belonging to her on board and on shore in accordance with the terms of this MOA. All spare parts and spare equipment including spare propeller(s)/propeller blade(s), spare anchor, if any, belonging to the Vessel at the time of delivery used or unused, whether on board or not shall become the Buyer's property on delivery. The radio installation and navigational equipment shall be included in the sale, along with all unused stores and provisions without extra payment.
|
7.2
|
Upon delivery of the Vessel from the Seller to the Buyer, all unused bunkers, lubricants/lubricating oil, grease, fuel oil or other liquids, and consumables shall be deemed to be taken over and be paid for by the Bareboat Charterer. No payment shall be made by the Buyer to the Seller for such unused bunkers, lubricants/lubricating oil, grease, fuel oil or other liquids, and consumables on board the Vessel on the Delivery Date. The Seller shall provide the original payment receipt on the Delivery Date to show that they have paid for such unused bunkers, lubricants/lubricating oil, grease, fuel oil or other liquids, and consumables.
|
8
|
Documentation
|
(a)
|
In exchange for payment of the Purchase Price in Clause 5 above and as a condition precedent to Delivery in Clause 4 above, the Seller shall furnish the Buyer with delivery documents as follows:-
|
(i)
|
one original bill of sale in a form recordable in the Flag State, transferring the title of the Vessel from the Seller to the Buyer and warranting that the Vessel is free from all mortgages, encumbrances and maritime liens or any other debts whatsoever, duly notarially attested and legalised or apostilled, as required by the Flag State;
|
(ii)
|
confirmation of Class issued not later than 72 hours prior to Delivery confirming that the Vessel is in Class and free of condition/recommendation;
|
(iii)
|
transcript of register (or equivalent) issued by the competent authorities stating that the Vessel is free from registered encumbrances, dated on the Delivery Date and faxed to the Buyer at the closing with the original to be couriered to the Buyer promptly after Delivery;
|
(iv)
|
a certified true copy of the constitutional documents of the Seller;
|
(v)
|
certified copy of a good standing certificate of the Seller dated not later than three (3) Business Days prior to Delivery;
|
(vi)
|
minutes of a Meeting of the Shareholders and Board of Directors of the Seller approving the sale of the Vessel to the Buyers, authorising the execution of the Bill of Sale, Protocol of Delivery and Acceptance and any other documents required to effect the sale and transfer of the Vessel to the Buyer and the granting of a Power of Attorney in respect of the same;
|
(vii)
|
an original Power of Attorney duly executed by the Seller appointing and authorising one or more Attorney(s)-in-Fact, inter alia, to act on behalf of the Seller to execute, sign and deliver the MOA, Bill of Sale, Protocol of Delivery and Acceptance and delivery of the Vessel to the Buyer, duly notarially attested and legalised or apostilled (as reasonably required);
|
(viii)
|
a certificate signed by the Company Secretary of the Seller certifying the identity of the current directors of the Seller;
|
(ix)
|
an original commercial invoice stating the main particulars of the Vessel and the Purchase Price signed by the Seller;
|
(x)
|
a copy of the Vessel's Safe Manning Certificate (SMC);
|
(xi)
|
a copy of the Vessel's International Ship Security (ISSC);
|
(xii)
|
the Seller's letter of confirmation that to the best of its knowledge the Vessel has not sustained any grounding or any other damage to the underwater parts since the Inspection and is not black-listed by any government, state, country political sub division and union;
|
(xiii)
|
A copy of each of the following documents duly executed by the relevant parties to the documents as follows: (A) the Bareboat Charter; (B) the Time Charter; (C) the Bareboat Charter Guarantee; and (D) the Time Charter Guarantee;
|
(xiv)
|
Valuation Certificates prepared by the Approved Valuers which are required to determine the Purchase Price in accordance with Clause 3;
|
(xv)
|
evidence reasonably satisfactory to the Buyer that the conditions precedent under the Bareboat Charter have been or will be met on Delivery;
|
(xvi)
|
evidence that all fees, costs and expenses due under this MOA, the arrangement fee letter and each Transaction Document have been paid by the Seller;
|
(xvii)
|
a certificate from the Seller confirming that the Vessel is free and clear of any liens, charges, debts, claims or other encumbrances arising in favour of any of the parties to the Project Documents or such parties’ sub-contractors and employees (other than a Permitted Encumbrance); and
|
(xviii)
|
any such additional documents as may reasonably be required by the competent authorities of the Flag State for the purpose of registering the Vessel.
|
(b)
|
At the time of Delivery, the Buyer shall provide the Seller with:
|
(i)
|
a certified true copy of the Buyer's constitutional documents;
|
(ii)
|
minutes of a Meeting of the Board of Directors of the Buyer approving the purchase of the Vessel from the Seller, authorising the execution of the Protocol of Delivery and Acceptance and any other documents required to effect the purchase and transfer of the Vessel from the Seller, duly notarially attested and legalised or apostilled (as required by the Flag State) and the granting of a Power of Attorney in respect of the same; and
|
(iii)
|
an original Power of Attorney duly executed by the Buyer appointing and authorising one or more Attorney(s)-in-Fact, inter alia, to act on behalf of the Buyer to perform its obligations under this MOA and execute, sign and deliver the Protocol of Delivery and Acceptance and delivery of the Vessel from the Seller, duly notarially attested and legalised or apostilled (as required by the Flag State).
|
(c)
|
If at the time of delivery of the Vessel the Classification Society or any other party has not issued the final certificates, then the Buyer will accept temporary certificates. The Seller shall arrange for such temporary certificates to be replaced with the permanent ones as soon as practical but in no event later than the time when the temporary certificates expire, and also provide the Buyer with a letter of undertaking to provide these certificates.
|
(d)
|
If any of the documents listed in sub-clauses (a) and (b) above are not in the English language they shall be accompanied by an English translation by an authorised translator.
|
(e)
|
The Buyer and Seller shall at the time of Delivery sign and deliver to each other a Protocol of Delivery and Acceptance confirming the date and time of delivery of the Vessel from the Seller to the Buyer.
|
(f)
|
At the time of the physical delivery on board the Vessel, and concurrent with the exchange of documents in sub-clause (a) and sub-clause (b) above, the Seller shall hand to the Buyer the Classification certificate(s), plans, drawings, record books and manuals (excluding ISM/ISPS manuals), which are on board the Vessel. All other documents and certificates which are on board and pertinent to the Vessel shall also be handed over to the Buyer unless the Seller is required to retain the same, in which case the Buyer has the right to take copies and leave the photocopies on board the Vessel. All other documents and technical documentation which may be in the Seller's possession shall following Delivery be forwarded to the Buyer after Delivery if they so request with reasonable forwarding charges, if any, to be for the Buyer's account. The Seller may keep the Vessel's log books but the Buyer has the right to take copies of the same. In instances where documents are to remain on the Vessel at all times the Buyer is permitted to take copies on board the Vessel at their own cost.
|
9
|
Encumbrances
|
10
|
Taxes, fees and expenses
|
11
|
Condition on Delivery
|
11.1
|
The Vessel shall be delivered to the Buyer in accordance with the specifications set out in the Time Charter and classed in accordance with the specifications in the Time Charter and this MOA. The Vessel shall be delivered to the Buyer with her Class maintained without condition/recommendation and free from any damage affecting class and classification certificates and national/international certificates as at the Delivery Date.
|
11.2
|
Following the execution of the MOA, the Seller shall not agree to any material modification or changes to the specifications set out in the MOA without the Buyer's prior written consent (such consent not to be unreasonably withheld or delayed) save for Permitted Amendments.
|
12
|
Name/markings
|
13
|
Buyer's default
|
14
|
Seller's default
|
14.1
|
The Buyer shall be entitled to cancel this MOA in the event that by the Cancelling Date:-
|
(a)
|
the Seller fails to deliver the Vessel; or
|
(b)
|
the Seller fails to meet the conditions in Clause 4 and/or to provide the documents in Clause 8 for the purposes of Delivery in Clause 6 of this MOA; or
|
(c)
|
if the Time Charter or the Time Charter Guarantee is terminated for whatever reason before the Delivery Date.
|
14.2
|
In the event the Seller fails to deliver the Vessel as referred to in Clause 14.1, it shall compensate the Buyer for its direct losses and for all reasonable expenses together with interest whether or not the Buyer cancels this MOA provided that the Buyer shall not be entitled to compensation if such losses or expenses arose out of gross negligence or wilful misconduct of the Buyer.
|
15
|
Assignments
|
16
|
Representations and warranties
|
16.1
|
Each Party to this MOA represents and warrants to the other Party to this MOA that:
|
(a)
|
It is duly incorporated and validly existing under the laws of its jurisdiction of incorporation and has power to carry on its business as it is now being conducted and to own its property and other assets; and
|
(b)
|
Subject to any Legal Reservations, it has full power, capacity and authority to execute, deliver and perform its obligations under this MOA and all necessary corporate, shareholder and other actions have been taken to authorise the execution, delivery and performance of the same and this MOA constitutes its valid and legally binding obligations.
|
16.2
|
On the Delivery Date, each of the Parties to this MOA shall be deemed to repeat the respective representations and warranties in Clause 16.1 as if made with reference to the facts and circumstances existing on such date and such representations and warranties, and the respective rights of the Parties hereunder, shall survive the execution of this MOA and the payment of the Actual Purchase Price.
|
17
|
Severability of provisions
|
18
|
Counterparts
|
19
|
Third Party rights
|
20
|
Law and Jurisdiction
|
20.1
|
This MOA and any non-contractual obligations connected with it shall be governed by and construed in accordance with English law.
|
20.2
|
The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of or in connection with this MOA (including a dispute regarding the existence, validity or termination of this MOA) (a
Dispute
).
|
20.3
|
The parties agree that the courts of Hong Kong are the most appropriate and convenient courts to settle Disputes and, accordingly, that they shall not argue to the contrary.
|
20.4
|
Clauses 20.2 and 20.3 are for the benefit of the Buyer only. As a result, the Buyer shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Buyer may take concurrent proceedings in any number of jurisdictions.
|
21
|
Notices
|
For the Buyer:
|
c/o CMB Financial Leasing Co. Ltd, 21F, China Merchants Banking Building, No. 1088 Lujiazui Ring Road, Shanghai, China 200120, PRC
Attention: Ms. Lu Chang
Email: zyzlsceb@cmbchina.com/luchang1129@cmbchina.com
Fax: +86 21 6105 9992
|
For the Seller:
|
c/o Golar Management Ltd, 13th Floor, One America Square, 17 Crosswall, London EC3N 2LB, United Kingdom
Attention: Mr Brian Tienzo
Email: brian.tienzo@golar.com
Fax: +44 (0)207 063 7901
|
22
|
Entire Agreement
|
SIGNATORIES
|
||
SELLER
|
|
|
SIGNED
by
For and on behalf of
GOLAR ESKIMO CORPORATION
In the presence of
|
)
)
)
|
Brian Tienzo
Cyril Chew
Associate, Norton Rose Fulbright (Asia) LLP
|
|
|
Signature/Title
|
BUYER
|
|
|
SIGNED
by
For and on behalf of
SEA 23 LEASING CO. LIMITED
In the presence of
|
)
)
)
|
Zhou Ling
Cyril Chew
Associate, Norton Rose Fulbright (Asia) LLP
|
|
|
Signature/Title
|
|
Dated 4 November 2015
|
|
GOLAR ESKIMO CORPORATION
as Seller
GOLAR ESKIMO CORPORATION
as Bareboat Charterer
and
GOLAR LNG PARTNERS LP
as Guarantor
and
SEA 23 LEASING CO. LIMITED
as Buyer
SEA 23 LEASING CO. LIMITED
as Owner
|
||
COMMON TERMS AGREEMENT
in respect of financing for “
GOLAR ESKIMO
”
|
(1)
|
GOLAR ESKIMO CORPORATION
as Seller;
|
(2)
|
GOLAR ESKIMO CORPORATION
as Bareboat Charterer;
|
(3)
|
GOLAR LNG PARTNERS LP
as Guarantor;
|
(4)
|
SEA 23 LEASING CO. LIMITED
as Buyer; and
|
(5)
|
SEA 23 LEASING CO. LIMITED
as Owner.
|
(A)
|
Pursuant to the Time Charter, the Seller has time chartered the Vessel “Golar Eskimo” to the Time Charterer.
|
(B)
|
Pursuant to the Time Charter Guarantee, the Time Charter Guarantor has guaranteed all the obligations of the Time Charterer under the Time Charter.
|
(C)
|
Not later than the Cancelling Date, Golar Eskimo Corporation as “Seller” will deliver the Vessel to Sea 23 Leasing Co. Limited as “Buyer” pursuant to the MOA, whereupon the Purchase Price will be made available.
|
(D)
|
Immediately upon Delivery of the Vessel by the Buyer to the Seller under the MOA, Sea 23 Leasing Co. Limited as “Owner” will deliver the Vessel to Golar Eskimo Corporation as “Bareboat Charterer” pursuant to the Bareboat Charter.
|
(E)
|
Golar MLP as “Guarantor” will guarantee to the Owner the performance of Golar Eskimo Corporation’s obligations under the Bareboat Charter and the MOA (subject to the terms and conditions set out in the Bareboat Charter Guarantee).
|
1
|
Definitions
|
1.1
|
The following defined terms shall be applicable to the Common Terms Documents as applicable:
|
(a)
|
deposits with first class international banks the maturity of which does not exceed 12 months;
|
(b)
|
bonds, certificates of deposit and other money market instruments or securities issued or guaranteed by the Norwegian or United States Governments; and
|
(c)
|
any other instrument approved by the Owner
|
(a)
|
the Guarantor ceases to, on an aggregate basis, directly or indirectly control at least 70% equity interest in Golar Eskimo; and
|
(b)
|
two or more persons acting in concert or any individual person (other than the parent):
|
(i)
|
acquires, legally and/or beneficially and either directly or indirectly, in excess of 50% of the issued share capital (or equivalent) of the Guarantor; or
|
(ii)
|
have the right or ability to control, either directly or indirectly, the affairs of the Guarantor (other than through the right or ability to appoint the majority of the board of directors (or equivalent) of the Guarantor or, following appointment, any continuing right or ability to exercise such control through the directors so appointed).
|
(a)
|
the Bareboat Charter Documents and any other guarantee or security given to or issued for the benefit of the Owner by any person for the Bareboat Charterer's obligations under them; and
|
(b)
|
the Time Charter, the Time Charter Guarantee and any other guarantee or security given to or issued for the benefit of the Bareboat Charterer by any person for the Time Charterer’s obligations under them
|
(a)
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
(b)
|
is known by Sea 23 Leasing Co. Limited before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by the Buyer or the Owner after that date, from a source which is, as far as Sea 23 Leasing Co. Limited is aware, unconnected with the Group and which, in either case, as far as Sea 23 Leasing Co. Limited is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality
|
(a)
|
in accordance with the terms of the MOA from the Seller to the Buyer; and
|
(b)
|
in accordance with the terms of the Bareboat Charter from the Owner to the Bareboat Charterer
|
(a)
|
in respect of the MOA, the date on which Delivery actually occurs (calculated from 00:01 am of that date), estimated to be 6 November 2015, as evidenced by the relevant Protocol of Delivery and Acceptance, duly executed by the Seller and the Buyer under the MOA and the Owner and the Bareboat Charterer under the Bareboat Charter, such date to be no later than the Cancelling Date; and
|
(b)
|
in respect of the Bareboat Charter, the date on which the Vessel is delivered by the Owner to the Bareboat Charter under the Bareboat Charter (calculated from 00:01 am of that date) as evidenced by the relevant Protocol of Delivery and Acceptance.
|
(a)
|
the Vessel or either Manager or the Bareboat Charterer is reasonably likely to be liable for Environmental Claims arising from the Spill; and/or
|
(b)
|
the Vessel is or may reasonably be expected to be arrested or attached in connection with any such Environmental Claim
|
(a)
|
the Bareboat Charter Documents;
|
(b)
|
the Security Documents; and
|
(c)
|
any other documents designated as such by the Owner and the Bareboat Charterer at any time
|
(a)
|
money borrowed and debit balances at banks or other financial institutions;
|
(b)
|
any debt instrument;
|
(c)
|
acceptance credit facilities;
|
(d)
|
receivables sold or discounted (other than any receivables to the extent they are old on a non-recourse basis);
|
(e)
|
deferred payments for assets or services acquired (but not ordinary trade credit);
|
(f)
|
finance leases and hire purchase contracts;
|
(g)
|
a counter-indemnity in respect of a guarantee given by a financial institution;
|
(h)
|
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value will be taken into account);
|
(i)
|
any other transaction having the commercial effect of a borrowing; and
|
(j)
|
guarantees of Indebtedness of any person falling within any of (a) to (i) above
|
(a)
|
Sea 23 Leasing Co. Limited; and
|
(b)
|
any Affiliate of Sea 23 Leasing Co. Limited
|
(a)
|
Golar Eskimo or the Guarantor becomes insolvent or unable to pay its debts;
|
(b)
|
Golar Eskimo or the Guarantor is dissolved or enters into liquidation, administration, administrative receivership, receivership, a voluntary arrangement, a scheme of arrangement with creditors, any analogous or similar procedure in any jurisdiction other than England or any other form of procedure relating to insolvency, reorganisation or dissolution in any jurisdiction; or any step is taken by any person with a view to any of those things;
|
(c)
|
Golar Eskimo or the Guarantor ceases to carry on business, stops payment of its debts or any class of them or enters into any compromise or arrangement in respect of its debts or any class of them; or takes any step to do any of those things;
|
(d)
|
any judgment or order against Golar Eskimo or the Guarantor is not stayed or complied with within 14 days;
|
(e)
|
any execution, distress, sequestration or other legal process is commenced against any of the assets of Golar Eskimo or the Guarantor and is not discharged within 7 days; or
|
(f)
|
any steps are taken to enforce any security over any assets of Golar Eskimo or the Guarantor
|
(a)
|
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
(b)
|
the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for, or indemnify a person against, non-payment of UK stamp duty may be void and defences of set-off or counterclaim;
|
(c)
|
similar principles, rights and defences under the laws of any Relevant Jurisdiction; and
|
(d)
|
any reservations as to matters of law referred to in the legal opinions to be delivered to the Owner under clause 60.1 of the Bareboat Charter
|
(a)
|
the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for Dollars for a period of 3 months and as displayed on the “LIBOR 01” or “LIBOR 02” page on the Thomson Reuters screen (or any replacement the Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of the Thomson Reuters at or about 11:00 a.m. (London time) on the Quotation Day; or
|
(b)
|
if, on the Quotation Day, no such rate appears is available under paragraph (a), LIBOR shall be the arithmetic mean (rounded up to the nearest five (5) decimal places) of the respective offered rates quoted by leading banks to Sea 23 Leasing Co. Limited in the London interbank market for deposits in Dollars in an amount comparable to such sum for such period at or about 11:00 a.m. (London time) (or such other period as may be required under the Bareboat Charter (with Sea 23 Leasing Co. Limited notifying the Bareboat Charterer of such requirement promptly after the execution of the Bareboat Charter)) on the Quotation Day
|
(a)
|
the business, operations, property, condition (financial or otherwise) of the Bareboat Charterer or the Guarantor; or
|
(b)
|
the ability of an Obligor to perform all or any of its obligations under the Transaction Documents; or
|
(c)
|
the validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or purported to be granted pursuant to any of the Finance Documents on the rights and remedies of Sea 23 Leasing Co. Limited under any of the Finance Documents.
|
(a)
|
result in a material structural alteration to the Vessel or affect the safety or structural integrity thereof; or
|
(b)
|
result in any change in the amount (by way of reduction) or calculation of the Time Charter Hire; or
|
(c)
|
result in any material change in the method or timing of payment of the Charter-hire or the Time Charter Hire; or
|
(d)
|
result in any material change in the method of the measurement of the performance of the Bareboat Charterer or the Time Charterer and/or the Vessel; or
|
(e)
|
result in any change to the charter term under the Time Charter; or
|
(f)
|
result in any change in the identity of the Time Charter Guarantor; or
|
(g)
|
result in any breach of any Obligor's obligations under the Finance Documents; or
|
(h)
|
result in any change to any counterparty to a Project Document;
|
(i)
|
result in any reduction of the term of the Time Charter provided that the initial charter term following such reduction is a minimum of nine (9) years
|
(a)
|
created pursuant to the Finance Documents and any Encumbrance arising from the own acts or defaults or claims against the Owner personally for which the Owner would not be entitled to indemnification under the Bareboat Charter;
|
(b)
|
for Taxes either not yet assessed or, if assessed, not yet due and payable or being contested in good faith by appropriate proceedings (and for the payment of which adequate reserves have been provided) so long as any such proceedings or the continued existence of such Encumbrance do not involve any likelihood of the sale, forfeiture or loss of, or of any interest in, the Vessel;
|
(c)
|
liens arising in the ordinary course of business by statute or by operation of law in respect of obligations which are not overdue or which are being contested in good faith by appropriate proceedings (and for the payment of which adequate reserves have been provided) so long as any such proceedings or the continued existence of such lien do not involve any likelihood of the sale, forfeiture or loss of, or of any interest in, the Vessel;
|
(d)
|
arising out of claims, judgements or awards against the Bareboat Charterer which are being contested in good faith or which are subject to a pending appeal and for which there shall have been granted a stay of execution pending such appeal and for the payment of which adequate reserves have been provided;
|
(e)
|
Permitted Liens; or
|
(f)
|
otherwise approved in writing by Sea 23 Leasing Co. Limited
|
(a)
|
any offer, gift, payment, promise to pay, commission, fee, loan or other consideration which would constitute bribery or a breach of the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other applicable law of any Relevant Jurisdiction or England and Wales; or
|
(b)
|
any offer, gift, payment, promise to pay, commission, fee, loan or other consideration which would or might constitute bribery within the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 17 December 1997
|
(a)
|
under the MOA substantially in the form of Schedule 1 to the MOA; and
|
(b)
|
under the Bareboat Charter substantially in the form of Appendix I to the Bareboat Charter
|
(a)
|
the quiet enjoyment letter entered or to be entered into between the Owner, the Mortgagee and the Bareboat Charterer substantially in the form at Appendix IV to the Bareboat Charter or such other mutually agreeable terms as the parties may reasonably agree;
|
(b)
|
if applicable, any quiet enjoyment letter entered or to be entered into between any Nominee nominated by the Owner pursuant to Clause 62 of the Bareboat Charter, their mortgagee and the Bareboat Charterer substantially in the form at Appendix IV to the Bareboat Charter or such other mutually agreeable terms as the parties may reasonably agree;
|
(c)
|
the quiet enjoyment letter entered or to be entered into between the Owner, the Bareboat Charterer and the Time Charterer; and
|
(d)
|
if applicable, any quiet enjoyment letter entered or to be entered into between any Nominee nominated by the Owner pursuant to Clause 62 of the Bareboat Charter, the Bareboat Charterer and the Time Charterer substantially in the form at Appendix IV to the Bareboat Charter or such other mutually agreeable terms as the parties may reasonably agree.
|
(a)
|
its jurisdiction of incorporation;
|
(b)
|
any jurisdiction where any Charged Property owned by it is situated; and
|
(c)
|
any jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it;
|
(a)
|
that is listed on any Sanctions List or any other sanctions-related list of persons, vessels or entities published by or on behalf of the European Union, the member states of the European Union, the United States of America and any authority acting on behalf of them (in each case, whether designated by name or by reason of being included in a class of person, vessel or entity);
|
(b)
|
that is domiciled, registered as located or having its main place of business in, or is incorporated under the laws of, a country which is subject to comprehensive country-wide sanctions administered or enforced by the European Union, the member states of the European Union, the United States of America or any authority acting on behalf of any of them and which attach legal effect to being domiciled, registered as located in, having its main place of business in, and/or being incorporate under the laws of such country; or
|
(c)
|
that is directly or indirectly owned or controlled by a person referred to in paragraph(s) (a) and/or (b) above
|
(a)
|
Share Security;
|
(b)
|
Bareboat Charter Guarantee;
|
(c)
|
Subordination Deed (if applicable);
|
(d)
|
Manager's Undertakings;
|
(e)
|
General Assignment;
|
(f)
|
Assignment of Time Charter Documents;
|
(g)
|
Accounts Security Deed;
|
(h)
|
Quiet Enjoyment Letter;
|
(i)
|
Vessel Buy Back Agreement; and
|
(j)
|
any other document designated a “Security Document” by the Parties to the Bareboat Charter
|
(a)
|
any mortgage, charge, pledge, lien, hypothecation, assignment by way of security, trust arrangement for the purpose of providing security or other security interest of any kind in any jurisdiction;
|
(b)
|
any proprietary interest over an asset, or any contractual arrangement in relation to an asset, in each case created in relation to Financial Indebtedness and which has the same commercial effect as if security had been created over it; and
|
(c)
|
any right of set-off created by agreement
|
(a)
|
which is controlled, directly or indirectly, by the first mentioned company or corporation;
|
(b)
|
more than half the issued equity share capital of which is beneficially owned, directly or indirectly, by the first mentioned company or corporation; or
|
(c)
|
which is a Subsidiary of another Subsidiary of the first mentioned company or corporation
|
(a)
|
the full amount of the Outstanding Capital Balance;
|
(b)
|
all Variable Charter-hire, if any, due and payable but unpaid under the Bareboat Charter up to and including the Termination Date together with interest (as stipulated in Clause 39.6 of the Bareboat Charter) accrued thereon from the due date therefor to the Termination Date;
|
(c)
|
any default interest payable pursuant to Clause 39.6 of the Bareboat Charter being agreed by the Parties to be a genuine pre-estimate of the loss suffered by the Owner as a result of the termination and therefore not a penalty;
|
(d)
|
any sums (other than Charter-hire) due and payable but unpaid under the Bareboat Charter together with interest accrued thereon up to and including the Termination Date; and
|
(e)
|
any and all Losses (including but not limited to reasonable legal and advisory fees or terminating any USD interest rate swaps (if any) incurred by the Owner as a result of its entering into the Bareboat Charter and the other Finance Documents and including without prejudice to the generality of the foregoing, all Losses incurred or suffered by the Owner in liquidating, employing or prepaying funds acquired or borrowed to purchase or finance or refinance the Vessel (including any costs incurred in unwinding any associated interest rate or currency swaps or currency futures)
|
(a)
|
actual, constructive, compromised or arranged total loss; or
|
(b)
|
requisition for title, confiscation, expropriation, nationalisation, seizure or other compulsory acquisition by a government entity; or
|
(c)
|
hijacking, theft, condemnation, capture, seizure, arrest or detention for more than 90 days
|
(a)
|
in the case of an actual total loss, the date it happened or, if such date is not known, the date on which the vessel was last reported;
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss, the earliest of:
|
(c)
|
the date notice of abandonment of the vessel is given to its insurers by Golar Eskimo or Sea 23 Leasing Co. Limited; or
|
(d)
|
if the insurers do not admit such a claim, the date later determined by a competent court of law to have been the date on which the total loss happened; or
|
(e)
|
the date upon which a binding agreement as to such compromised or arranged total loss has been entered into by the relevant insurers;
|
(f)
|
in the case of a requisition for title, confiscation or compulsory acquisition, the date it happened; and
|
(g)
|
in the case of hijacking, theft, condemnation, capture, seizure, arrest or detention, the date
90
days after the date upon which it happened
|
(a)
|
the date 180 days after its Total Loss Date; and
|
(b)
|
the date upon which insurance proceeds or Requisition Compensation for such Total Loss are paid by insurers or the relevant government entity
|
1.2
|
Interpretation
|
(a)
|
the table of contents, the summary and the headings are inserted for convenience only and do not affect the interpretation of the relevant Common Terms Document or other Finance Document;
|
(b)
|
references to clauses and schedules are to clauses of, and schedules to, the relevant Common Terms Document or other Finance Document;
|
(c)
|
references to a person include an individual, firm, company, corporation, unincorporated body of persons, any government entity, any government entity, state or agency of that state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
(d)
|
references to any person include its successors in title, permitted assignees and permitted transferees;
|
(e)
|
words importing the plural include the singular and vice versa;
|
(f)
|
references to a time of day are to Shanghai time, using the 24 hour clock (unless the context otherwise requires);
|
(g)
|
references to any enactment include that enactment as re-enacted; and, if an enactment is amended, any provision of any Common Terms Document or other Finance Document which refers to that enactment will be amended in such manner as the Buyer or the Owner (as relevant) after consultation with the Seller or the Bareboat Charterer (as relevant determines to be necessary in order to preserve the intended effect of the relevant Common Terms Document or other Finance Document.;
|
(h)
|
references to a provision of law or regulation shall be a reference to that provision as amended, supplemented, replaced or re-enacted;
|
(i)
|
assets
includes present and future properties, assets, intellectual property rights, real property, personal property, rights, revenues, uncalled capital and any rights to receive, or require delivery of, or exercise direct control over any of the foregoing;
|
(j)
|
references to a Common Terms Document or other Finance Document or any other agreement or instrument is a reference to that Common Terms Document or other Finance Document or other agreement or instrument as it may from time to time be amended, re-stated, novated, however fundamentally;
|
(k)
|
an
obligation
means any duty, obligation or liability of any kind;
|
(l)
|
a term
including
shall be construed as meaning including without limitation;
|
(m)
|
approved
means, as the case may be, approved in writing by the Owner (on such conditions as the Owner may impose) and approval and approve shall be construed accordingly;
|
(n)
|
an
authorisation
means any authorisation, consent, concession, approval, resolution, licence, exemption, filing, notarisation or registration;
|
(o)
|
control
of an entity means:
|
(i)
|
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:-
|
(ii)
|
cast, or control the casting of, more than 50 per cent of the maximum number of votes that might be cast at a general meeting of that entity; or
|
(iii)
|
appoint or remove all, or the majority, of all directors or other equivalent officers of that entity; or
|
(iv)
|
give directions with respect to the operating and financial policies of that entity with which the directors or other equivalent officers of that entity are obliged to comply; and/or
|
(v)
|
the holding beneficially of more than 50 per cent of the issued share capital of that entity (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital) (and, for this purpose, any Security Interest over share capital shall be disregarded in determining the beneficial ownership of such share capital);
|
(p)
|
the term
disposal
or
dispose
means a sale, transfer or other disposal (including by way of lease or loan but not including by way of loan of money) by a person of all or part of its assets whether by one transaction or a series of transactions and whether at the same time or over a period of time, but not the creation of a Security Interest;
|
(q)
|
the
equivalent
of an amount specified in a particular currency (the
specified currency amount
) shall be construed as a reference to the amount of the other relevant currency which can be purchased with the specified currency amount in the London foreign exchange market at or about 11 a.m. on the date the calculation falls to be made for spot delivery, as conclusively determined by Sea 23 Leasing Co. Limited (with the relevant exchange rate of any such purchase being CMBL’s spot rate of exchange);
|
(r)
|
a
government entity
means any government, state or agency of state;
|
(s)
|
a
guarantee
means any guarantee, letter of credit, bond, indemnity or similar assurance against loss or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;
|
(t)
|
indebtedness
includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present, future actual or contingent;
|
(u)
|
month
means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:
|
(i)
|
if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that month (if there is one) or on the immediately preceding Business Day (if there is not); and
|
(ii)
|
if there is no numerically corresponding day in that month, that period shall end on the last Business Day in that month
|
(v)
|
a
regulation
includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation and includes (without limitation) any Basel II Regulation or Basel III Regulation;
|
(w)
|
right
means any right, privilege, power or remedy, any proprietary interest in any asset and any other interest or remedy of any kind, whether actual or contingent, present or future, arising under contract or law, or in equity;
|
(x)
|
(i) the
liquidation, winding up, dissolution, or administration of person
or (ii)
a receiver
or
administrative receiver
or
administrator
in the context of insolvency proceedings or security enforcement actions in respect of a person shall be construed so as to include any equivalent or analogous proceedings or any equivalent and analogous person or appointee (respectively) under the law of the jurisdiction in which such person is established or incorporated or any jurisdiction in which such person carries on business including (in respect of proceedings) the seeking or occurrences of liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection or relief of debtors;
|
(y)
|
a provision of law is a reference to that provision as amended or re-enacted; and
|
(z)
|
in
an agreed form
means:
|
(i)
|
where a document has already been executed, such document in its executed form; and
|
(ii)
|
prior to the execution of a document, the form of such document agreed in writing between Sea 23 Leasing Co. Limited and Golar Eskimo is the form in which that document is to be executed.
|
2
|
Notices
|
2.1
|
Any notice or other communication to a party to the Transaction Documents must be in writing. It must be addressed for the attention of such person, and sent to such address, fax number or email address as that party may from time to time notify to the other parties.
|
2.2
|
It shall be deemed to have been received by the relevant party on receipt at that address.
|
2.3
|
The initial administrative details of the parties are contained in the Schedule, but a party may amend its own details at any time by notice to the other parties.
|
3
|
English Translations
|
3.1
|
Any notice given under or in connection with the Transaction Documents must be in English.
|
3.2
|
Where any other document provided to the Owner under the terms of the Transaction Documents is not in English, that document must be accompanied by an English translation, certified to be an accurate translation of the original.
|
3.3
|
The English translation will prevail over the original document unless that document is a constitutional, statutory or other official document.
|
4
|
Partial Invalidity
|
5
|
Confidentiality
|
6
|
Counterparts
|
7
|
Law and Jurisdiction
|
7.1
|
This Agreement and any non-contractual obligations connected with it are governed by and shall be construed in accordance with English law.
|
7.2
|
The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Deed) (a
Dispute
).
|
7.3
|
The parties agree that the courts of Hong Kong are the most appropriate and convenient courts to settle Disputes and, accordingly, that they shall not argue to the contrary.
|
7.4
|
Clauses 7.2 and 7.3 are for the benefit of the Buyer and the Owner only. As a result, the Buyer and the Owner shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Buyer and the Owner may take concurrent proceedings in any number of jurisdictions
|
Party
|
Address
|
Fax Number
|
Attention
|
Seller / Bareboat Charterer
|
c/o Golar Management Ltd, 13th Floor, 1 America Square, 17 Crosswall, London EC3N 2LB, United Kingdom
|
|
Mr. Brian Tienzo
|
Buyer / Owner
|
c/o CMB Financial Leasing Co. Ltd
21F, China Merchants Bank Building,
No. 1088, Lujiazui Ring Road, Shanghai, China 200120 |
86 21 6105 9992
|
Ms. Lu Chang
|
Guarantor
|
c/o Golar Management Ltd, 13th Floor, 1 America Square, 17 Crosswall, London EC3N 2LB, United Kingdom
|
|
Mr. Brian Tienzo
|
SELLER
|
|
|
SIGNED
by
For and on behalf of
GOLAR ESKIMO CORPORATION
In the presence of
|
)
)
)
|
Brian Tienzo
Cyril Chew
|
|
|
|
BAREBOAT CHARTERER
|
|
|
SIGNED
by
For and on behalf of
GOLAR ESKIMO CORPORATION
In the presence of
|
)
)
)
|
Brian Tienzo
Cyril Chew
|
|
|
|
GUARANTOR
|
|
|
SIGNED
by
For and on behalf of
GOLAR LNG
PARTNERS LP
In the presence of
|
)
)
)
)
|
Brian Tienzo
Cyril Chew
|
|
|
|
BUYER
|
|
|
SIGNED
by
For and on behalf of
SEA 23 LEASING CO. LIMITED
In the presence of
|
)
)
)
|
Zhou Ling
Cyril Chew
|
OWNER
|
|
|
SIGNED
by
For and on behalf of
SEA 23 LEASING CO. LIMITED
In the presence of
|
)
)
)
|
Zhou Ling
Cyril Chew
|
|
|
|
Subsidiary
|
|
Ownership Interest
|
|
Jurisdiction of Formation
|
Golar Partners Operating LLC
|
|
100%
|
|
Marshall Islands
|
Golar LNG Holding Corporation
|
|
100%
|
|
Marshall Islands
|
Golar Maritime (Asia) Inc.
|
|
100%
|
|
Republic of Liberia
|
Oxbow Holdings Inc.
|
|
100%
|
|
British Virgin Islands
|
Faraway Maritime Shipping Company
|
|
60%
|
|
Republic of Liberia
|
Golar LNG 2215 Corporation
|
|
100%
|
|
Marshall Islands
|
Golar Spirit Corporation
|
|
100%
|
|
Marshall Islands
|
Golar Freeze Holding Corporation
|
|
100%
|
|
Marshall Islands
|
Golar 2215 UK Ltd
|
|
100%
|
|
United Kingdom
|
Golar Spirit UK Ltd
|
|
100%
|
|
United Kingdom
|
Golar Winter UK Ltd
|
|
100%
|
|
United Kingdom
|
Golar Freeze UK Ltd
|
|
100%
|
|
United Kingdom
|
Golar Servicos de Operacao de Embaracaoes Limited
|
|
100%
|
|
Brazil
|
Golar Khannur Corporation
|
|
100%
|
|
Marshall Islands
|
Golar LNG (Singapore) Pte. Ltd.
|
|
100%
|
|
Singapore
|
PT Golar Indonesia*
|
|
49%
|
|
Indonesia
|
Golar 2226 UK Ltd
|
|
100%
|
|
United Kingdom
|
Golar LNG 2234 Corporation
|
|
100%
|
|
Republic of Liberia
|
Golar Winter Corporation
|
|
100%
|
|
Marshall Islands
|
Golar Grand Corporation
|
|
100%
|
|
Marshall Islands
|
Golar Eskimo Corporation
|
|
100%
|
|
Marshall Islands
|
Golar Hull M2031 Corporation
|
|
100%
|
|
Marshall Islands
|
*
|
Golar LNG Partners LP holds all of the voting stock and controls all of the economic interests in PT Golar Indonesia (“PTGI”) pursuant to a Shareholder's Agreement with the other shareholder of PTGI, PT Pesona Sentra Utama (“PT Pesona”). PT Pesona holds the remaining 51% interest in the issued share capital of PTGI.
|
1.
|
I have reviewed this annual report on Form 20-F of Golar LNG Partners LP (the “registrant”);
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
a.
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
b.
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
c.
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
d.
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting.
|
5.
|
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
a.
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
b.
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
1.
|
I have reviewed this annual report on Form 20-F of Golar LNG Partners LP
(the “registrant”);
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
a.
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
b.
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
c.
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation;
|
d.
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting.
|
5.
|
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
a.
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
b.
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
|
|
GOLAR LNG PARTNERS LP
|
|
|
|
|
|
|
|
By:
|
/s/Graham Robjohns
|
|
|
|
Graham Robjohns
|
|
|
|
Principal Executive Officer
|
|
|
|
|
|
GOLAR LNG PARTNERS LP
|
|
|
|
|
|
By:
|
/s/Brian Tienzo
|
|
|
Brian Tienzo
|
|
|
Principal Financial and Accounting Officer
|
|
|
|