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, 2017
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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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Brian Tienzo
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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8.75% Series A Cumulative Redeemable Preferred Units
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Nasdaq Global Market
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69,768,261 Common Units representing limited partner interests
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5,520,000 8.75% Series A Cumulative Redeemable Preferred Units
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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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Emerging growth company
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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C.
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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 and regasification unit (“FSRU”), liquefied natural gas (“LNG”) carrier and floating liquefied natural gas vessel (“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 maintain cash distributions on our units and the amount of any such distributions;
|
•
|
the timeliness of the acceptance of the FLNG
Hilli Episeyo
(“
Hilli
”) by the charterer;
|
•
|
our ability to integrate and realize the expected benefits from acquisitions and potential acquisitions, including the acquisition (the “Hilli Acquisition”) of 50% of the common units of Golar Hilli LLC (“Hilli LLC”), the indirect owner of the
Hilli
;
|
•
|
the future share of earnings relating to the
Hilli
, which we expect to be accounted for under the equity method;
|
•
|
our ability to consummate the Hilli Acquisition on a timely basis or at all;
|
•
|
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 and Golar's 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 the relationships and reputation of Golar, Golar Power and OneLNG
SA
in the LNG industry;
|
•
|
our ability to purchase vessels from Golar, Golar Power and OneLNG
SA
in the future;
|
•
|
our continued ability to enter into long-term time charters, including our ability to re-charter FSRUs and carriers following the termination or expiration of their time charters;
|
•
|
our ability to maximize the use of our vessels, including the re-deployment or disposition of vessels no longer under long-term time charter;
|
•
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timely purchases and deliveries of newbuilding vessels;
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•
|
future purchase prices of newbuilding and secondhand vessels;
|
•
|
our ability to compete successfully for future chartering and newbuilding opportunities;
|
•
|
acceptance of a vessel by its charterer;
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•
|
termination dates and extensions of charters;
|
•
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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;
|
•
|
challenges by authorities to the tax benefits we previously obtained;
|
•
|
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 securities in the public market;
|
•
|
our business strategy and other plans and objectives for future operations; and
|
•
|
other factors detailed in this Annual Report and from time to time in our periodic reports.
|
|
Year Ended December 31,
|
||||||||||||||||||
|
2017
|
|
2016
|
|
2015
|
|
2014
|
|
2013
|
||||||||||
|
(in thousands except for unit and fleet data)
|
||||||||||||||||||
Statement of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Total operating revenues
|
$
|
433,102
|
|
|
$
|
441,598
|
|
|
$
|
434,687
|
|
|
$
|
396,026
|
|
|
$
|
329,190
|
|
Vessel operating expenses
(1)
|
(68,278
|
)
|
|
(59,886
|
)
|
|
(65,244
|
)
|
|
(59,191
|
)
|
|
(52,390
|
)
|
|||||
Voyage and commission expenses
(2)
|
(9,694
|
)
|
|
(5,974
|
)
|
|
(7,724
|
)
|
|
(6,048
|
)
|
|
(5,239
|
)
|
|||||
Administrative expenses
|
(15,210
|
)
|
|
(8,600
|
)
|
|
(6,643
|
)
|
|
(5,757
|
)
|
|
(5,194
|
)
|
|||||
Depreciation and amortization
|
(103,810
|
)
|
|
(100,468
|
)
|
|
(99,256
|
)
|
|
(80,574
|
)
|
|
(66,336
|
)
|
|||||
Total operating expenses
|
(196,992
|
)
|
|
(174,928
|
)
|
|
(178,867
|
)
|
|
(151,570
|
)
|
|
(129,159
|
)
|
|||||
Operating income
|
236,110
|
|
|
266,670
|
|
|
255,820
|
|
|
244,456
|
|
|
200,031
|
|
|||||
Net financial expenses
|
(75,188
|
)
|
|
(65,388
|
)
|
|
(77,468
|
)
|
|
(64,768
|
)
|
|
(43,759
|
)
|
|||||
Income taxes
|
(16,996
|
)
|
|
(16,858
|
)
|
|
(5,669
|
)
|
|
5,047
|
|
|
(5,453
|
)
|
|||||
Net income
|
144,848
|
|
|
185,742
|
|
|
172,683
|
|
|
184,735
|
|
|
150,819
|
|
|||||
Earnings Per Unit
|
|
|
|
|
|
|
|
|
|
||||||||||
Basic - Common units
|
$
|
1.82
|
|
|
$
|
2.44
|
|
|
$
|
2.38
|
|
|
$
|
2.47
|
|
|
$
|
2.31
|
|
Diluted - Common units
|
$
|
1.80
|
|
|
$
|
2.43
|
|
|
$
|
2.38
|
|
|
$
|
2.47
|
|
|
$
|
2.31
|
|
Cash distributions declared and paid per common unit in the year
|
2.31
|
|
|
2.31
|
|
|
2.30
|
|
|
2.14
|
|
|
2.05
|
|
|||||
Balance Sheet Data (at end of period):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Cash and cash equivalents
|
$
|
246,954
|
|
|
$
|
65,710
|
|
|
$
|
40,686
|
|
|
$
|
98,998
|
|
|
$
|
103,100
|
|
Restricted cash and short-term deposits
(3)
|
27,306
|
|
|
44,927
|
|
|
56,714
|
|
|
25,831
|
|
|
24,451
|
|
|||||
Non-current restricted cash
(3)
|
155,627
|
|
|
117,488
|
|
|
136,559
|
|
|
146,552
|
|
|
145,725
|
|
|||||
Vessels and equipment, net
|
1,588,923
|
|
|
1,652,710
|
|
|
1,730,676
|
|
|
1,501,170
|
|
|
1,281,591
|
|
|||||
Vessel under capital lease, net
|
105,945
|
|
|
111,186
|
|
|
116,727
|
|
|
122,253
|
|
|
127,693
|
|
|||||
Total assets
|
2,427,371
|
|
|
2,252,708
|
|
|
2,231,662
|
|
|
1,942,846
|
|
|
1,706,949
|
|
|||||
Current portion of long-term debt
|
118,850
|
|
|
78,101
|
|
|
118,693
|
|
|
121,562
|
|
|
153,494
|
|
|||||
Current portion of obligation under capital lease
|
1,276
|
|
|
787
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Long-term debt
|
1,252,184
|
|
|
1,296,609
|
|
|
1,212,419
|
|
|
897,614
|
|
|
721,707
|
|
|||||
Non-current obligation under capital lease
|
126,805
|
|
|
116,964
|
|
|
143,112
|
|
|
150,997
|
|
|
159,008
|
|
|||||
Partner’s capital
|
771,031
|
|
|
541,506
|
|
|
539,475
|
|
|
536,207
|
|
|
501,744
|
|
|||||
Number of units issued and outstanding:
|
|
|
|
|
|
|
|
|
|
||||||||||
Series A Preferred units
|
5,520,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Common units
|
69,768,261
|
|
|
64,073,291
|
|
|
45,167,096
|
|
|
45,663,096
|
|
|
45,663,096
|
|
|||||
Subordinated units
|
—
|
|
|
—
|
|
|
15,949,831
|
|
|
15,949,831
|
|
|
15,949,831
|
|
|||||
Cash Flow Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Net cash provided by operating activities
|
$
|
271,003
|
|
|
$
|
261,232
|
|
|
$
|
212,230
|
|
|
$
|
276,980
|
|
|
$
|
148,679
|
|
Net cash (used in)/provided by investing activities
|
(70,426
|
)
|
|
(107,247
|
)
|
|
734
|
|
|
(167,755
|
)
|
|
(84,052
|
)
|
|||||
Net cash used in financing activities
|
(19,333
|
)
|
|
(128,961
|
)
|
|
(271,276
|
)
|
|
(113,327
|
)
|
|
(27,854
|
)
|
|
Year Ended December 31,
|
||||||||||||||||||
|
2017
|
|
2016
|
|
2015
|
|
2014
|
|
2013
|
||||||||||
Fleet Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Number of vessels at end of period
(4)
|
10
|
|
|
10
|
|
|
10
|
|
|
9
|
|
|
8
|
|
|||||
Average number of vessels during period
(4)
|
10
|
|
|
10
|
|
|
10
|
|
|
9
|
|
|
8
|
|
|||||
Average age of vessels (in years)
|
19
|
|
|
18
|
|
|
17
|
|
|
18
|
|
|
19
|
|
|||||
Total calendar days
|
3,650
|
|
|
3,660
|
|
|
3,631
|
|
|
3,199
|
|
|
2,883
|
|
|||||
Other Financial Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Average daily time charter equivalent earnings (TCE)
(5)
|
$
|
125,939
|
|
|
$
|
119,874
|
|
|
$
|
120,373
|
|
|
$
|
121,906
|
|
|
$
|
117,758
|
|
Average daily operating expenses
(6)
|
$
|
18,706
|
|
|
$
|
16,362
|
|
|
$
|
17,969
|
|
|
$
|
18,502
|
|
|
$
|
18,172
|
|
(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 all operated under time charters during the periods presented. Under a time charter, the charterer pays substantially all of the voyage expense, which are primarily fuel and port expenses.
|
(3)
|
Restricted cash and short-term deposits consists 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 lessor 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.
|
(4)
|
In each of the periods presented, we held a 60% ownership interest in the
Golar Mazo
and a 100% interest in the other vessels.
|
(5)
|
Non-GAAP Financial Measure
|
|
Year Ended December 31,
|
||||||||||||||||||
|
2017
|
|
2016
|
|
2015
|
|
2014
|
|
2013
|
||||||||||
|
(dollars in thousands, except average daily TCE)
|
||||||||||||||||||
Total operating revenues
|
$
|
433,102
|
|
|
$
|
441,598
|
|
|
$
|
434,687
|
|
|
$
|
396,026
|
|
|
$
|
329,190
|
|
Voyage and commission expenses
|
(9,694
|
)
|
|
(5,974
|
)
|
|
(7,724
|
)
|
|
(6,048
|
)
|
|
(5,239
|
)
|
|||||
|
$
|
423,408
|
|
|
$
|
435,624
|
|
|
$
|
426,963
|
|
|
$
|
389,978
|
|
|
$
|
323,951
|
|
Calendar days less scheduled off-hire days
|
3,362
|
|
|
3,634
|
|
|
3,547
|
|
|
3,199
|
|
|
2,751
|
|
|||||
Average daily TCE (in $)
|
$
|
125,939
|
|
|
$
|
119,874
|
|
|
$
|
120,373
|
|
|
$
|
121,906
|
|
|
$
|
117,758
|
|
(6)
|
We calculate average daily vessel operating expenses by dividing vessel operating expenses by the number of calendar days.
|
•
|
the
Hilli
’s timely acceptance by the Perenco Cameroon (“Perenco”) and Societe Nationale de Hydrocarbures (“SNH”) (together with Perenco and SNH, the “Customer”) under the
Hilli’s
liquefaction tolling agreement (the “Liquefaction Tolling Agreement”);
|
•
|
the continued accuracy of the representations and warranties contained in the Hilli Purchase Agreement;
|
•
|
the performance by each party of its obligations under the purchase agreement;
|
•
|
the absence of any decree, order, injunction, ruling or judgment that prohibits, or other proceedings that seek to prohibit, the Hilli Acquisition or makes the Hilli Acquisition unlawful; and
|
•
|
the execution of certain agreements related to the consummation of the Hilli Acquisition.
|
•
|
fail to realize anticipated benefits, such as increased cash flows;
|
•
|
fail to obtain the benefits of the Liquefaction Tolling Agreement if the Customer exercises certain rights to terminate the charter upon the occurrence of specified events of default;
|
•
|
fail to obtain the benefits of the Liquefaction Tolling Agreement if the Customer fails to make payments under the Liquefaction Tolling Agreement because of its financial inability, disagreements with us or otherwise;
|
•
|
incur or assume unanticipated liabilities, losses or costs;
|
•
|
be required to pay damages to the Customer or suffer a reduction in the tolling fee in the event that the
Hilli
fails to perform to certain specifications; or
|
•
|
incur other significant charges, such as asset devaluation or restructuring charges.
|
•
|
the rates we obtain from our charters and our ability to obtain new charters as existing charters expiry;
|
•
|
our ability to make future accretive acquisitions to replace operating cash flow from vessels that we are unable to re-contract or that we re-contracted at lower rates;
|
•
|
the level of our operating costs, such as the cost of crews and insurance;
|
•
|
the number of unscheduled off-hire days for our fleet and the timing of, and number of days required for, the drydocking of our vessels;
|
•
|
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;
|
•
|
the supply of FSRUs, FLNGs and LNG carriers;
|
•
|
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;
|
•
|
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.
|
•
|
its FSRU, FLNG and LNG shipping 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, FLNGs 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.
|
•
|
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 Winter,
and the
Golar Eskimo
, upon at least 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.
|
•
|
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.
|
•
|
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.
|
•
|
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 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.
|
•
|
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.
|
•
|
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.
|
•
|
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.
|
•
|
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.
|
•
|
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.
|
•
|
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 factors affecting, us, our affiliates or our unitholders. Decisions made by our general partner in its individual capacity will be made by its sole owner, Golar. Specifically, pursuant to our partnership agreement, our general partner will be considered to be acting in its individual capacity if it exercises its right to make a determination to receive common units in exchange for resetting the target distribution levels related to the incentive distribution rights (or the IDRs), call right, pre-emptive rights or registration 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 IDRs or votes upon the dissolution of the partnership;
|
•
|
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 units voting together as a single class is required to remove the general partner. As of
April 6, 2018
, Golar owned our general partner and
30.4%
of our common units.
|
•
|
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
|
•
|
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;
|
•
|
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, FLNGs and LNG carriers.
We believe our affiliation with Golar and its affiliates positions us to pursue a broader array of growth opportunities, including strategic and accretive acquisitions from or with Golar, Golar Power, OneLNG or from third parties. Since our IPO, we have acquired six vessels from Golar. In addition, we have entered into an agreement to acquire 50% of the common units representing limited liability company interests in Hilli LLC, the indirect owner of Golar's first converted FLNG, the
Hilli
which is expected to close on or around April 30, 2018.
|
•
|
Compete for long-term charter contracts for FSRUs, FLNGs and LNG carriers when attractive opportunities arise.
We intend to participate in competitive tender processes and engage in negotiated transactions with potential charterers for FSRUs, FLNGs and LNG carriers when attractive opportunities arise by leveraging the strength of the industry expertise of Golar, as well as 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.
|
•
|
Capital cost component - primarily relates to the cost of the vessel and is structured to meet that cost and provide a return on investor capital. The capital cost component is generally constant for the duration of the initial term except for the
Golar Winter
.
|
•
|
Operating cost component - intended to compensate us for vessel operating expenses including management fees. This component is generally established at the beginning of the charter and typically escalates annually on a fixed percentage or fluctuates annually based on changes in a specified consumer price index.
|
•
|
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.
|
FSRU Vessel
|
Capacity
(cbm)
|
Base Offtake
Capacity
(Bcf/d)
|
Year of
Delivery
|
Year Acquired
|
Year of FSRU Retrofitting
|
Current
Charter
Commencement
|
Charterer
|
Charter
Expiration
|
Charter
Extension
Option
Periods
|
|
Golar Spirit
|
128,000
|
|
0.25
|
1981
|
Upon formation
(1)(2)
|
2007
|
None
|
None
(3)
|
Not applicable
|
Not applicable
|
Golar Winter
|
138,000
|
|
0.50
|
2004
|
At IPO
(2)
|
2008
|
September 2009
|
Petrobras
|
September 2024
(4)
|
None
|
Golar Freeze
(5)
|
125,000
|
|
0.48
|
1977
|
October 2011
|
2010
|
May 2010
|
DUSUP
|
April 2019
|
None
|
NR Satu
(6)
|
125,000
|
|
0.50
|
1977
|
July 2012
|
2012
|
May 2012
|
PTNR
|
December 2022
|
2025
|
Golar Igloo
|
170,000
|
|
0.50
|
2014
|
March 2014
|
Not applicable
|
March 2014
|
KNPC
|
December 2018
|
One regasification season
|
Golar Eskimo
|
160,000
|
|
0.50
|
2014
|
January 2015
|
Not applicable
|
June 2015
|
Jordan
|
June 2025
|
None
|
Total Capacity
|
846,000
|
|
2.73
|
|
|
|
|
|
|
|
(1)
|
Upon our formation, Golar contributed to us a 100% interest in certain subsidiaries which owned a 60% interest in the
Golar Mazo
and which leased the
Golar Spirit
and the
Methane Princess
.
|
(2)
|
In connection with our IPO, Golar transferred to us a 100% interest in the subsidiary which leased the
Golar Winter
and the legal title to the
Golar Spirit
.
|
(3)
|
In July 2017, we received an early termination fee from Petrobras for the early termination of the
Golar Spirit
charter. The charter, which had an original end date of August 2018, was terminated on June 23, 2017. The amount received from Petrobras was net of withholding tax paid to the Brazilian tax authorities. As of December 31, 2017, the
Golar Spirit
is currently in lay-up pending new employment.
|
(4)
|
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.
|
(5)
|
In July 2017, we agreed with the charterer of the
Golar Freeze
, DUSUP, to shorten the charter by a year, to end in April 2019 and to remove DUSUP's termination for convenience rights and extension option rights which ran to 2024. We have the right to terminate our obligations under the charter while continuing to receive the capital element of the charter hire until April 2019. (See “Item 5—Operating and Financial Review and Prospects—Significant Developments in
2017
and Early
2018
”).
|
(6)
|
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.
|
Vessel
|
Capital cost component
|
Operating cost component
|
Other
|
Changes to hire rate in the extension period (if applicable)
|
Golar Winter
|
Increases on a bi-annual basis based on a cost of living index and as required for Owner to be kept whole for any changes in local tax law.
|
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.
|
Not applicable
|
Golar Freeze
|
Fixed.
|
Fixed.
|
Not applicable
|
Not applicable
|
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.
|
Not applicable
|
Not applicable
|
Not applicable
|
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.
|
Not applicable
|
Not applicable
|
(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.
|
LNG Carrier
|
Capacity
(cbm)
|
Year of
Delivery
|
Year Acquired
|
Charterer
|
Charter
Expiration
|
Charter Extension
Option Periods
|
Golar Mazo
(1)
|
135,000
|
2000
|
Upon formation
|
None
|
Not applicable
|
Not applicable
|
Methane Princess
(1)
|
138,000
|
2003
|
Upon formation
|
Royal Dutch Shell
|
March 2024
|
Five years plus five years
|
Golar Grand
|
145,700
|
2006
|
November 2012
|
Major international Oil and Gas company
|
May 2019
|
Terms extending up to seven years
(2)
|
Golar Maria
|
145,700
|
2006
|
February 2013
|
None
|
Not applicable
|
Not applicable
|
Total Capacity
|
564,400
|
|
|
|
|
|
(1)
|
Upon our formation, Golar contributed to us a 100% interest in certain subsidiaries which owned a 60% interest in the
Golar Mazo
and which leased the
Golar Spirit
and the
Methane Princess
. We currently own a 60% interest in the
Golar Mazo
, and Chinese Petroleum Corporation holds the remaining 40% interest.
|
(2)
|
The new Golar Grand charterer has options to extend the charter by three one year periods and two further periods of up to two years each.
|
Vessel
|
Capital cost component
|
Operating cost component
|
Changes to hire rate in the extension period (if applicable)
|
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.
|
The hire rate will increase from the initial hire rate during the extension periods by approximately 50%.
|
•
|
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. The membrane system most efficiently utilizes the entire volume of a ship's hull, and is cheaper to build. Most of our LNG carriers are of the membrane type.
|
•
|
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 cargos offshore; and
|
•
|
shuttle carriers that regasify and discharge their cargos alongside.
|
•
|
injury to, destruction or loss of, or loss of use of, natural resource and the costs of assessment thereof;
|
•
|
injury to, or economic losses resulting from, the destruction of real and personal property;
|
•
|
net loss of taxes, royalties, rents, fees or net profit revenues resulting from injury, destruction or loss of real or personal property, or natural resources;
|
•
|
loss of subsistence use of natural resources that are injured, destroyed or lost;
|
•
|
lost profits or impairment of earning capacity due to injury, destruction or loss of real or personal property or natural resources;
|
•
|
net cost of increased or additional public services necessitated by removal activities following a discharge of oil, such as protection from fire, safety or health hazards.
|
•
|
on-board installation of automatic identification systems to provide a means for the automatic transmission of safety-related information from among similarly equipped ships and shore stations, including information on a ship’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 ship is entitled to fly, the date on which the vessel was registered with that state, the ship’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, LNG carriers and FLNGs 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 our derivative instruments is included in our net income as most of our derivative instruments are not designated as hedges for accounting purposes. These changes may fluctuate significantly as interest rates fluctuate. Please read note 23 in the notes to our consolidated financial statements.
|
•
|
Our results may be affected by tax exposure and changes in deferred tax.
The deferred tax asset recognized for the foreign tax operating loss in Indonesia for 2016 was fully utilized in 2017. In 2017 and 2016, we recognized a deferred tax asset relating to the recognition of certain historical tax positions relating to foreign tax operating losses in Jordan. Furthermore, in 2017 and 2016, we recognized a deferred tax liability relating to the excess of the tax basis depreciation over the accounting basis depreciation in connection with the
Golar Eskimo.
Please see note 8 in the notes to our consolidated financial statements. This may have an impact on 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 revoked a previously granted waiver of VAT importation for one of our subsidiaries, PTGI, in the approximate amount of $24.0 million for the
NR Satu.
In February 2018, PTGI filed a judicial review with the Indonesian Supreme court. In the event that the revocation of the waiver is upheld by the Supreme Court and a liability arises, 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, 2017
,
2016
and
2015
, we had 123, 88 and 84 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 is a three-month window each year from December until February, 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 2017, 2016 and 2015. 2018 will be the last regasification season under the current charter. We cannot guarantee that KNPC will employ the
Golar Igloo
beyond the 2018 regasification season.
|
•
|
Reductions of hire rates for extension periods may significantly affect our revenues
.
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 12% for the
NR Satu
to 37% for the
Methane Princess
. Our results of operations will be negatively impacted in periods during which any of our vessels are operating under a reduced hire rate.
|
•
|
Vessels may be 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 the
Golar Spirit,
the
Golar Maria
and
the
Golar Mazo
have expired and the charter on the
Golar Igloo
is due to expire in 2018. 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 or are not able to re-charter a vessel, our earnings and ability to make distributions to our unitholders may decline. See “Item 3. 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”.
|
•
|
For periods when vessel are in lay-up, vessel operating costs will be lower.
The
Golar Spirit
was placed into lay-up in August 2017. We receive no revenues for vessels while they are in lay-up or being converted, but we benefit from lower vessel operating costs, principally from reduced crew on board, and minimal maintenance requirements and voyage costs.
|
•
|
Our ability to close the Hilli Acquisition on a timely basis or at all.
The
Hilli
Acquisition is expected to close on or before April 30, 2018, but the closing of the Hilli Acquisition is subject to satisfaction of certain closing conditions including commissioning and acceptance by the customer.
|
•
|
Our cash flows will be impacted by the Hilli Acquisition.
The
Hilli
is the world’s first converted FLNG vessel. FLNG vessels are complex and their operations are technically challenging and subject to mechanical risks. Accordingly, the operations of the
Hilli
are subject to risks that could negatively impact affect our earnings and financial condition. Furthermore, upon the closing of the
Hilli
Acquisition we expect to initially account for our investment in Hilli LLC under the equity method. Accordingly, our share of future earnings from Hilli LLC will be presented in “equity in net earnings from affiliates” within our consolidated statement of operations.
|
•
|
the number of vessels in our fleet, and our ability to acquire additional (or interests in) vessels from Golar or from third parties;
|
•
|
our ability to maintain good working relationships with our key existing charterers and to increase the number of our charterers through the development of new working relationships;
|
•
|
demand for LNG shipping services, FSRU and FLNG services, and the underlying demand for and supply of natural gas and LNG;
|
•
|
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 and unscheduled off-hire days;
|
•
|
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;
|
•
|
the level of vessel operating costs; and
|
•
|
our level of debt and the related interest expense and amortization of principal.
|
•
|
The
Methane Princess
’s 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 OSA for the
Golar Winter
, the charter hire rates are payable in Brazilian Reais. The charter hire rates payable under the OSA covers all vessel operating expenses, other than drydocking and insurance. The charter hire rate payable under the OSA was 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
NR Satu
time charter provides for annual adjustment to the operating expense component of the charter hire rate as necessary to take into account cost increases.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2017
|
|
2016
|
|
Change
|
|
% Change
|
|||||||
Statement of Operations Data:
|
(dollars in thousands, except TCE and average daily vessel operating costs)
|
|||||||||||||
Total operating revenues
|
$
|
316,599
|
|
|
$
|
322,373
|
|
|
$
|
(5,774
|
)
|
|
(2
|
)%
|
Vessel operating expenses
|
(47,960
|
)
|
|
(43,884
|
)
|
|
(4,076
|
)
|
|
9
|
%
|
|||
Voyage and commission expenses
|
(8,375
|
)
|
|
(5,049
|
)
|
|
(3,326
|
)
|
|
66
|
%
|
|||
Administrative expenses
(1)
|
(10,029
|
)
|
|
(5,773
|
)
|
|
(4,256
|
)
|
|
74
|
%
|
|||
Depreciation and amortization
|
(80,762
|
)
|
|
(78,025
|
)
|
|
(2,737
|
)
|
|
4
|
%
|
|||
Operating income
|
169,473
|
|
|
189,642
|
|
|
(20,169
|
)
|
|
(11
|
)%
|
|||
Other non-operating income
|
922
|
|
|
1,318
|
|
|
(396
|
)
|
|
(30
|
)%
|
|||
|
|
|
|
|
|
|
|
|||||||
Other Financial Data:
|
|
|
|
|
|
|
|
|||||||
Total operating revenues
|
$
|
316,599
|
|
|
$
|
322,373
|
|
|
$
|
(5,774
|
)
|
|
(2
|
)%
|
Voyage and commission expenses
|
(8,375
|
)
|
|
(5,049
|
)
|
|
(3,326
|
)
|
|
66
|
%
|
|||
|
308,224
|
|
|
317,324
|
|
|
(9,100
|
)
|
|
(3
|
)%
|
|||
Calendar days less scheduled off-hire days
|
1,927
|
|
|
2,196
|
|
|
(269
|
)
|
|
(12
|
)%
|
|||
Average daily TCE
(2)
|
$
|
159,950
|
|
|
$
|
144,501
|
|
|
$
|
15,449
|
|
|
11
|
%
|
•
|
$9.2 million reduction in revenue from the
Golar Winter
following her scheduled drydocking in 2017; and
|
•
|
a $1.7 million reduction in revenue from the
Golar Freeze
due to the reduction of the daily time charter rate under the amended
Golar Freeze
time charter, which was effective as of July 2017.
|
•
|
$4.5 million of incremental repairs and maintenance costs for the
NR Satu
following her scheduled maintenance window during the year ended
December 31, 2017
; and
|
•
|
$1.2 million in additional costs for
Golar Winter
, due to higher upstoring and repairs and maintenance cost during her scheduled drydocking in September 2017. There were no comparable costs in the year ended December 31, 2016.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2017
|
|
2016
|
|
Change
|
|
% Change
|
|||||||
Statement of Operations Data:
|
(dollars in thousands, except TCE and average daily vessel operating costs)
|
|||||||||||||
Total operating revenues
|
$
|
116,503
|
|
|
$
|
119,225
|
|
|
(2,722
|
)
|
|
(2
|
)%
|
|
Vessel operating expenses
|
(20,318
|
)
|
|
(16,002
|
)
|
|
(4,316
|
)
|
|
27
|
%
|
|||
Voyage and commission expenses
|
(1,319
|
)
|
|
(925
|
)
|
|
(394
|
)
|
|
43
|
%
|
|||
Administrative expenses
(1)
|
(5,181
|
)
|
|
(2,827
|
)
|
|
(2,354
|
)
|
|
83
|
%
|
|||
Depreciation and amortization
|
(23,048
|
)
|
|
(22,443
|
)
|
|
(605
|
)
|
|
3
|
%
|
|||
Operating income
|
66,637
|
|
|
77,028
|
|
|
(10,391
|
)
|
|
(13
|
)%
|
|||
|
|
|
|
|
|
|
|
|||||||
Other Financial Data:
|
|
|
|
|
|
|
|
|||||||
Total operating revenues
|
$
|
116,503
|
|
|
$
|
119,225
|
|
|
$
|
(2,722
|
)
|
|
(2
|
)%
|
Voyage and commission expenses
|
(1,319
|
)
|
|
(925
|
)
|
|
(394
|
)
|
|
43
|
%
|
|||
|
115,184
|
|
|
118,300
|
|
|
(3,116
|
)
|
|
(3
|
)%
|
|||
Calendar days less scheduled off-hire days
|
1,435
|
|
|
1,438
|
|
|
(3
|
)
|
|
—
|
%
|
|||
Average daily TCE
(2)
|
$
|
80,268
|
|
|
$
|
82,267
|
|
|
$
|
(1,999
|
)
|
|
(2
|
)%
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2017
|
|
2016
|
|
Change
|
|
% Change
|
|||||||
|
(dollars in thousands)
|
|||||||||||||
Administrative expenses
(1)
|
$
|
(15,210
|
)
|
|
$
|
(8,600
|
)
|
|
$
|
(6,610
|
)
|
|
77
|
%
|
Interest income
|
7,804
|
|
|
4,295
|
|
|
3,509
|
|
|
82
|
%
|
|||
Interest expense
|
(75,425
|
)
|
|
(66,938
|
)
|
|
(8,487
|
)
|
|
13
|
%
|
|||
Other financial items
|
(7,567
|
)
|
|
(2,745
|
)
|
|
(4,822
|
)
|
|
176
|
%
|
|||
Taxes
|
(16,996
|
)
|
|
(16,858
|
)
|
|
(138
|
)
|
|
1
|
%
|
|||
Non-controlling interest
|
(15,568
|
)
|
|
(13,571
|
)
|
|
(1,997
|
)
|
|
15
|
%
|
•
|
$6.4 million in additional interest relating to our issuance of $250 million of senior unsecured non-amortizing 2017 Norwegian Bonds in February 2017 to replace our 2012 High Yield Bonds, which matured in October 2017; and
|
•
|
$1.7 million increase in interest expense arising on the Methane Princess lease for the year ended December 31, 2017 compared to the same period in 2016. This was due to the effect of a reduction in corporation tax rates recognized in 2016.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2017
|
|
2016
|
|
Change
|
|
% Change
|
|||||||
|
(dollars in thousands)
|
|||||||||||||
Mark-to-market gains for interest rate swaps
|
$
|
12,074
|
|
|
$
|
9,893
|
|
|
$
|
2,181
|
|
|
22
|
%
|
Interest expense on un-designated interest rate swaps
|
(7,554
|
)
|
|
(10,824
|
)
|
|
3,270
|
|
|
(30
|
)%
|
|||
Net unrealized and realized gains/(losses) on interest rate swaps
|
4,520
|
|
|
(931
|
)
|
|
5,451
|
|
|
(585
|
)%
|
|||
Losses on repurchase of 2012 High-Yield Bonds and related cross currency interest rate swap
|
(6,506
|
)
|
|
—
|
|
|
(6,506
|
)
|
|
100
|
%
|
|||
Premium paid on repurchase of 2012 High-Yield Bond
|
(2,820
|
)
|
|
—
|
|
|
(2,820
|
)
|
|
100
|
%
|
|||
Financing arrangement fees and other costs
|
(1,283
|
)
|
|
(1,468
|
)
|
|
185
|
|
|
(13
|
)%
|
|||
Other items
|
(1,478
|
)
|
|
(346
|
)
|
|
(1,132
|
)
|
|
327
|
%
|
|||
Other financial items, net
|
$
|
(7,567
|
)
|
|
$
|
(2,745
|
)
|
|
$
|
(4,822
|
)
|
|
176
|
%
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2016
|
|
2015
|
|
Change
|
|
% Change
|
|||||||
Statement of Operations Data:
|
(dollars in thousands, except TCE and average daily vessel operating costs)
|
|||||||||||||
Total operating revenues
|
$
|
322,373
|
|
|
$
|
307,344
|
|
|
$
|
15,029
|
|
|
5
|
%
|
Vessel operating expenses
|
(43,884
|
)
|
|
(44,589
|
)
|
|
705
|
|
|
(2
|
)%
|
|||
Voyage and commission expenses
|
(5,049
|
)
|
|
(5,581
|
)
|
|
532
|
|
|
(10
|
)%
|
|||
Administrative expenses
(1)
|
(5,773
|
)
|
|
(4,311
|
)
|
|
(1,462
|
)
|
|
34
|
%
|
|||
Depreciation and amortization
|
(78,025
|
)
|
|
(77,036
|
)
|
|
(989
|
)
|
|
1
|
%
|
|||
Operating income
|
189,642
|
|
|
175,827
|
|
|
13,815
|
|
|
8
|
%
|
|||
Other non-operating income
|
1,318
|
|
|
—
|
|
|
1,318
|
|
|
100
|
%
|
|||
|
|
|
|
|
|
|
|
|||||||
Other Financial Data:
|
|
|
|
|
|
|
|
|||||||
Total operating revenues
|
$
|
322,373
|
|
|
$
|
307,344
|
|
|
$
|
15,029
|
|
|
5
|
%
|
Voyage and commission expenses
|
(5,049
|
)
|
|
(5,581
|
)
|
|
532
|
|
|
(10
|
)%
|
|||
|
317,324
|
|
|
301,763
|
|
|
15,561
|
|
|
5
|
%
|
|||
Calendar days less scheduled off-hire days
|
2,196
|
|
|
2,087
|
|
|
109
|
|
|
5
|
%
|
|||
Average daily TCE
(2)
|
$
|
144,501
|
|
|
$
|
144,592
|
|
|
$
|
(91
|
)
|
|
—
|
%
|
•
|
$6.5 million of increased revenue from the
Golar Eskimo
due to the expiration of the sub-lease with Golar on June 30, 2015 and commencement of charter hire revenue from the Hashemite Kingdom of Jordan at a higher rate;
|
•
|
$4.5 million of additional revenue from the
Golar Freeze
representing a full year of revenue compared to approximately ten months in 2015 following her scheduled drydocking in April 2015; and
|
•
|
$3.3 million increase in revenue from the
Golar Winter
and the
Golar Spirit
mainly due to a $2.0 million withholding tax refund from our operations in Brazil arising from over payments between 2008 to 2012. We also received interest on the withholding tax refund which is presented as other non-operating income.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2016
|
|
2015
|
|
Change
|
|
% Change
|
|||||||
Statement of Operations Data:
|
(dollars in thousands, except TCE and average daily vessel operating costs)
|
|||||||||||||
Total operating revenues
|
$
|
119,225
|
|
|
$
|
127,343
|
|
|
$
|
(8,118
|
)
|
|
(6
|
)%
|
Vessel operating expenses
|
(16,002
|
)
|
|
(20,656
|
)
|
|
4,654
|
|
|
(23
|
)%
|
|||
Voyage and commission expenses
|
(925
|
)
|
|
(2,144
|
)
|
|
1,219
|
|
|
(57
|
)%
|
|||
Administrative expenses
(1)
|
(2,827
|
)
|
|
(2,330
|
)
|
|
(497
|
)
|
|
21
|
%
|
|||
Depreciation and amortization
|
(22,443
|
)
|
|
(22,220
|
)
|
|
(223
|
)
|
|
1
|
%
|
|||
Operating income
|
77,028
|
|
|
79,993
|
|
|
(2,965
|
)
|
|
(4
|
)%
|
|||
|
|
|
|
|
|
|
|
|||||||
Other Financial Data:
|
|
|
|
|
|
|
|
|||||||
Total operating revenues
|
$
|
119,225
|
|
|
$
|
127,343
|
|
|
$
|
(8,118
|
)
|
|
(6
|
)%
|
Voyage and commission expenses
|
(925
|
)
|
|
(2,144
|
)
|
|
1,219
|
|
|
(57
|
)%
|
|||
|
118,300
|
|
|
125,199
|
|
|
(6,899
|
)
|
|
(6
|
)%
|
|||
Calendar days less scheduled off-hire days
|
1,438
|
|
|
1,460
|
|
|
(22
|
)
|
|
(2
|
)%
|
|||
Average daily TCE
(2)
|
$
|
82,267
|
|
|
$
|
85,753
|
|
|
$
|
(3,486
|
)
|
|
(4
|
)%
|
•
|
a $6.0 million reduction in revenue from the
Golar Grand,
following her redelivery from Royal Dutch Shell in mid-February 2015 and her subsequent charter back to Golar at a lower daily time charter rate; and
|
•
|
a $2.0 million reduction in revenue from the
Golar Maria
resulting from her scheduled drydocking in 2016.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2016
|
|
2015
|
|
Change
|
|
% Change
|
|||||||
|
(dollars in thousands)
|
|||||||||||||
Administrative expense
(1)
|
$
|
(8,600
|
)
|
|
$
|
(6,643
|
)
|
|
$
|
(1,957
|
)
|
|
29
|
%
|
Interest income
|
4,295
|
|
|
1,315
|
|
|
2,980
|
|
|
227
|
%
|
|||
Interest expense
|
(66,938
|
)
|
|
(61,632
|
)
|
|
(5,306
|
)
|
|
9
|
%
|
|||
Other financial items
|
(2,745
|
)
|
|
(17,151
|
)
|
|
14,406
|
|
|
(84
|
)%
|
|||
Taxes
|
(16,858
|
)
|
|
(5,669
|
)
|
|
(11,189
|
)
|
|
197
|
%
|
|||
Non-controlling interest
|
(13,571
|
)
|
|
(10,547
|
)
|
|
(3,024
|
)
|
|
29
|
%
|
•
|
$5.0 million incremental interest arising on the new $800 million credit facility entered into in May 2016. The new facility is larger and on average accrues interest at a margin higher than the facilities it replaced;
|
•
|
$3.4 million incremental interest on our $150.0 million 2015 Norwegian Bonds issued in May 2015 (the “2015 Norwegian Bonds”). A full year of interest was incurred in the year ended December 31, 2016 compared with approximately seven months of interest in the same period in 2015; and
|
•
|
an increase in the amortization of deferred financing costs by $2.1 million resulting from the write-off of deferred financing costs following the refinancing of our credit facilities secured by seven of our vessels in May 2016.
|
•
|
$1.0 million reduction in interest expense due to the repayment of the Eskimo vendor loan in November 2015.
|
•
|
a $3.0 million decrease in interest expense on the Methane Princess lease following changes to corporation tax rates and the strengthening of the U.S. Dollar to Pound Sterling; and
|
•
|
a decline of $1.2 million in interest expense arising on designated swaps due to the de-designation of swaps related to the Golar LNG Partners Credit Facility following its refinancing in May 2016.
|
|
Year Ended December 31,
|
|
|
|
|
|||||||||
|
2016
|
|
2015
|
|
Change
|
|
% Change
|
|||||||
|
(dollars in thousands)
|
|||||||||||||
Mark-to-market gains for interest rate swaps
|
$
|
9,893
|
|
|
$
|
655
|
|
|
$
|
9,238
|
|
|
1,410
|
%
|
Interest expense on un-designated interest rate swaps
|
(10,824
|
)
|
|
(14,385
|
)
|
|
3,561
|
|
|
(25
|
)%
|
|||
Net unrealized and realized losses on interest rate swaps
|
(931
|
)
|
|
(13,730
|
)
|
|
12,799
|
|
|
(93
|
)%
|
|||
Financing arrangement fees and other costs
|
(1,468
|
)
|
|
(1,694
|
)
|
|
226
|
|
|
(13
|
)%
|
|||
Other items
|
(346
|
)
|
|
(1,727
|
)
|
|
1,381
|
|
|
(80
|
)%
|
|||
Other financial items, net
|
$
|
(2,745
|
)
|
|
$
|
(17,151
|
)
|
|
$
|
14,406
|
|
|
(84
|
)%
|
•
|
we paid a cash distribution of $0.5775 per unit ($41.5 million in the aggregate) to all common and general partner unitholders with respect to the quarter ended
December 31, 2017
in February 2018;
|
•
|
we paid a cash distribution of $0.63802 per Series A Preferred Unit ($3.5 million in the aggregate) for the period from October 31, 2017 through February 14, 2018, in February 2018;
|
•
|
we issued 617,969 common units in connection with our ATM Program and 12,548 general partner units to our General Partner in 2018, which generated net proceeds of $14.4 million;
|
•
|
we made $16.6 million of scheduled debt repayments;
|
•
|
we entered into an interest rate swap with Citibank, commencing March 31, 2018, for a period of 8 years. The swap has a notional value of $480.0 million, and will exchange the 3-month USD LIBOR rate for a blended fixed rate of 2.86%;
|
•
|
we repurchased
439,672
common units in March 2018 under our common unit repurchase program for an aggregate price of
$8.0 million
. All repurchased shares were subsequently cancelled in accordance with our common unit repurchase program;
|
•
|
we made a repayment of $75.0 million of the revolving credit facility under our $800 million credit facility;
|
|
Year Ended December 31,
|
||||||||||
(in thousands)
|
2017
|
|
2016
|
|
2015
|
||||||
Net cash provided by operating activities
|
$
|
271,003
|
|
|
$
|
261,232
|
|
|
$
|
212,230
|
|
Net cash (used in) / provided by investing activities
|
(70,426
|
)
|
|
(107,247
|
)
|
|
734
|
|
|||
Net cash used in financing activities
|
(19,333
|
)
|
|
(128,961
|
)
|
|
(271,276
|
)
|
|||
Net increase / (decrease) in cash and cash equivalents
|
181,244
|
|
|
25,024
|
|
|
(58,312
|
)
|
|||
Cash and cash equivalents at beginning of year
|
65,710
|
|
|
40,686
|
|
|
98,998
|
|
|||
Cash and cash equivalents at end of year
|
246,954
|
|
|
65,710
|
|
|
40,686
|
|
•
|
a $6.9 million increase in revenues from charterers coupled by an improvement in the collection of trade receivables by $12.8 million;
|
•
|
a decrease in drydocking expenditure of $11.0 million, by virtue of the lower cost of the scheduled drydocking of the LNG carrier, the
Golar Maria
in 2016 compared with the scheduled drydocking of the FSRU, the
Golar Freeze
in 2015; and
|
•
|
a $7.7 million decrease in restricted cash primarily related to the
Golar Eskimo
performance bond in 2015.
|
•
|
repayment of debt and lease obligations of $463.8 million. Of this amount, $234.2 million relates to the redemption of our High-Yield Bonds and termination of the related cross currency interest rate swap;
|
•
|
payment of cash distributions during the year of $168.1 million (of which $7.0 million were distributions to our non-controlling interests);
|
•
|
$19.7 million incremental increase in restricted cash, mainly due to (i) an increase in the cash collateral requirements associated with the $800 million credit facility of $41.7 million which was a consequence of the
Golar Spirit
lease termination in 2017; and (ii) a $3.8 million increase in the cash balances held by Eskimo SPV. This was offset by the release of cash collateral associated with our cross-currency swap upon the repayment of our High-Yield Bonds in October 2017 of $32.4 million; and
|
•
|
financing and debt settlement costs of $5.4 million mainly in connection with issuance of the 2017 Norwegian Bonds.
|
•
|
payment of cash distributions during the year of $167.0 million ($12.4 million of which was distributions to our non-controlling interests);
|
•
|
repayment of debt (including debt due to related party) and lease obligations of $770.4 million. Of this amount, $681.4 million relates to repayment of the Maria and Freeze Facility, the Golar LNG Partners Credit Facility, the Golar Partners Operating Credit Facility and the Golar Igloo Debt in connection with their refinancing in May 2016 into the $800.0 million credit facility;
|
•
|
financing and debt settlement costs of $13.5 million mainly in connection with the new $800.0 million credit facility; and
|
•
|
payment of $0.5 million in connection with our common unit repurchase program.
|
•
|
the receipt of aggregate proceeds of $815.0 million from our existing debt or debt refinancing, comprising (i) $40.0 million drawdown of our long-term revolving credit facilities; and (ii) $775.0 million proceeds from the $800 million credit facility; and
|
•
|
a $7.6 million reduction in restricted cash, mainly due to a decrease in the cash collateral requirements associated with our cross-currency swap and a reduction in the cash balances held by Eskimo SPV.
|
•
|
payment of cash distributions during the year of $164.3 million ($11.4 million of which was 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 in full of the $220.0 million unsecured non-amortizing loan to us from Golar (the “Eskimo Vendor Loan”) in connection with our acquisition of the
Golar Eskimo
, 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 mark-to-market valuation of the swap.
|
•
|
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.
|
|
Total
Obligation
|
|
Due in
2018
|
|
Due in
2019—2020
|
|
Due in
2021—2022
|
|
Due
Thereafter
|
||||||||||
|
(in millions)
|
||||||||||||||||||
Long-term debt
(1)
|
$
|
1,387.6
|
|
|
$
|
122.3
|
|
|
$
|
337.2
|
|
|
$
|
716.0
|
|
|
$
|
212.1
|
|
Interest commitments on long-term debt - floating and other interest rate swaps
(2)
|
256.7
|
|
|
72.4
|
|
|
121.1
|
|
|
38.4
|
|
|
24.8
|
|
|||||
Capital lease obligations
|
128.1
|
|
|
1.3
|
|
|
3.7
|
|
|
5.4
|
|
|
117.7
|
|
|||||
Interest commitments on capital lease obligations
(2)(3)
|
82.3
|
|
|
6.6
|
|
|
13.0
|
|
|
12.6
|
|
|
50.1
|
|
|||||
Purchase obligations
(4)
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Total
|
$
|
1,854.7
|
|
|
$
|
202.6
|
|
|
$
|
475.0
|
|
|
$
|
772.4
|
|
|
$
|
404.7
|
|
(1)
|
Amounts shown gross of deferred financing costs of
$16.6 million
.
|
(2)
|
Our interest commitment on our long-term debt is calculated based on assumed USD LIBOR rates of between 2.09% and 2.93% 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 5.2%.
|
(3)
|
In the event of any adverse tax rate changes or rulings our lease obligation with regard to the
Methane Princess
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.
|
(4)
|
Upon the closing of the Hilli Acquisition, Golar, Keppel and B&V will sell 50% of the common units of Hilli LLC to the Partnership in return for the payment by the Partnership of the net purchase price of between approximately $178 and $190 million. We will apply the $107.2 million Deferred Purchase Price receivable from Golar in connection with the Tundra Put Sale and the $70 million deposit we paid in August 2017 against the net purchase price and will pay the balance with cash on hand.
|
Name
|
|
Age
|
|
Position
|
Tor Olav Trøim
|
|
55
|
|
Chairman
|
Paul Leand Jr.
|
|
51
|
|
Director and Conflicts Committee Member
|
Lori Wheeler Naess
|
|
47
|
|
Director and Audit Committee Chairperson
|
Carl Steen
|
|
67
|
|
Director and Audit Committee Member
|
Alf Thorkildsen
|
|
61
|
|
Director, Conflicts and Audit Committee Member
|
Michael Ashford
|
|
71
|
|
Director and Company Secretary
|
Jeremy Kramer
|
|
56
|
|
Director and Conflicts Committee Member
|
Name
|
|
Age
|
|
Position
|
Brian Tienzo
|
|
44
|
|
Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer
|
Øistein Dahl
|
|
57
|
|
Chief Operating Officer
|
|
|
Common Units
Beneficially Owned
|
|||
Name of Beneficial Owner
|
|
Number
|
Percent
|
||
Golar LNG Limited
|
|
21,226,586
|
|
30.4
|
%
|
Oppenheimer Funds, Inc.
(1)
|
|
5,344,183
|
|
7.6
|
%
|
FMR LLC
(2)
|
|
4,511,101
|
|
6.5
|
%
|
All directors and executive officers as a group (10 persons)
|
|
*
|
|
*
|
|
(1)
|
Based solely on information contained in a Schedule 13G/A filed on February 6, 2018 by Oppenheimer Funds, Inc.
|
(2)
|
Based solely on information contained in a Schedule 13G filed on February 13, 2018 by FMR LLC.
|
(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 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.
|
•
|
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. 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. Our partnership agreement can be amended with the approval of a majority of the outstanding common units. As of
April 6, 2018
, Golar owned our general partner and
30.4%
of our common 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. For the year ended
December 31, 2017
, PTGI paid $1.2 million of dividends to PT Pesona.
|
•
|
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 Distribution Target Amount
|
Marginal Percentage Interest in Distributions
|
||
|
Common Unitholders
|
General Partner
|
IDR Holders
|
|
Minimum Quarterly Distribution
|
$0.5775
|
98%
|
2%
|
0%
|
First Target Distribution
|
Up to $0.6641
|
98%
|
2%
|
0%
|
Second Target Distribution
|
Above $0.6641 up to $0.7219
|
85%
|
2%
|
13%
|
Third Target Distribution
|
Above $0.7219 up to $0.8663
|
75%
|
2%
|
23%
|
Thereafter
|
Above $0.8663
|
50%
|
2%
|
48%
|
|
High
|
|
Low
|
||||
Year ended December 31, 2017
|
$
|
25.82
|
|
|
$
|
18.77
|
|
Year ended December 31, 2016
|
$
|
24.76
|
|
|
$
|
8.02
|
|
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
|
|
|
|
|
|
||||
Second quarter 2018
(1)
|
$
|
17.78
|
|
|
$
|
16.78
|
|
First quarter 2018
|
$
|
23.46
|
|
|
$
|
16.82
|
|
Fourth quarter 2017
|
$
|
23.33
|
|
|
$
|
19.62
|
|
Third quarter 2017
|
$
|
23.28
|
|
|
$
|
19.61
|
|
Second quarter 2017
|
$
|
23.49
|
|
|
$
|
18.77
|
|
First quarter 2017
|
$
|
25.82
|
|
|
$
|
21.25
|
|
Fourth quarter 2016
|
$
|
24.76
|
|
|
$
|
18.32
|
|
Third quarter 2016
|
$
|
20.60
|
|
|
$
|
17.38
|
|
Second quarter 2016
|
$
|
19.93
|
|
|
$
|
14.00
|
|
First quarter 2016
|
$
|
16.63
|
|
|
$
|
8.02
|
|
|
|
|
|
||||
Month ended April 30, 2018
(1)
|
$
|
17.78
|
|
|
$
|
16.78
|
|
Month ended March 31, 2018
|
$
|
19.76
|
|
|
$
|
16.82
|
|
Month ended February 28, 2018
|
$
|
22.23
|
|
|
$
|
18.49
|
|
Month ended January 31, 2018
|
$
|
23.46
|
|
|
$
|
21.77
|
|
Month ended December 31, 2017
|
$
|
23.32
|
|
|
$
|
19.62
|
|
Month ended November 30, 2017
|
$
|
22.27
|
|
|
$
|
19.72
|
|
Month ended October 31, 2017
|
$
|
23.33
|
|
|
$
|
21.58
|
|
|
High
|
|
Low
|
||||
Year ended December 31, 2017
|
$
|
26.05
|
|
|
$
|
24.68
|
|
|
|
|
|
||||
Second quarter 2018
(1)
|
$
|
25.45
|
|
|
$
|
25.19
|
|
First quarter 2018
|
$
|
26.70
|
|
|
$
|
25.00
|
|
Fourth quarter 2017
|
$
|
26.05
|
|
|
$
|
24.68
|
|
|
|
|
|
||||
Month ended April 30, 2018
(1)
|
$
|
25.45
|
|
|
$
|
25.19
|
|
Month ended March 31, 2018
|
$
|
25.60
|
|
|
$
|
25.09
|
|
Month ended February 28, 2018
|
$
|
26.70
|
|
|
$
|
25.00
|
|
Month ended January 31, 2018
|
$
|
26.53
|
|
|
$
|
25.59
|
|
Month ended December 31, 2017
|
$
|
26.05
|
|
|
$
|
25.06
|
|
Month ended November 30, 2017
|
$
|
25.53
|
|
|
$
|
24.92
|
|
Month ended October 31, 2017
|
$
|
25.50
|
|
|
$
|
24.68
|
|
1.
|
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.
|
2.
|
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.
|
3.
|
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.
|
4.
|
$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 Note 20 “Debt—NR Satu Facility” to our consolidated financial statements for a summary of certain terms.
|
5.
|
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 in October 2017. The bonds bore interest at a rate equal to 3 months NIBOR plus a margin of 5.20% payable quarterly. See Note 20 “Debt—Repayment of High-Yield Bonds” to our consolidated financial statements for a summary of certain terms.
|
6.
|
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.
|
7.
|
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. See Note 10 “Business Combination” to our consolidated financial statements for a summary of certain terms.
|
8.
|
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 Note 24 “Related Party Transactions” to our Consolidated Financial Statements for a summary of certain terms.
|
9.
|
Bond Agreement dated May 20, 2015 between Golar LNG Partners LP and Nordic Trustee ASA as bond trustee. See Note 20 “Debt—2015 Norwegian Bonds” to our consolidated financial statements for a summary of certain terms.
|
10.
|
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 5 “Operating and Financial Review and Prospects—Significant Developments in 2017 and Early 2018—Tundra Acquisition”.
|
11.
|
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—Eskimo Corp” to our consolidated financial statements for a summary of certain terms.
|
12.
|
Bareboat charter, Memorandum of Agreement and Common Terms Agreements, by and among Golar LNG NB13 Corporation, and a subsidiary of China Merchants Bank Limited (Tundra SPV), dated November 19, 2015, providing for the sale and leaseback of the
Golar Tundra
. See Item 5 “Operating and Financial Review and Prospects—Significant Developments in 2017 and Early 2018—Tundra Acquisition”.
|
13.
|
Supplemental Agreement by and among Golar LNG NB13 Corporation, Golar LNG Limited, Golar LNG Partners LP and a subsidiary of China Merchants Bank Limited (Tundra SPV), dated April 28, 2016, as supplement to the Bareboat charter, Memorandum of Agreement and Common Terms Agreements dated November 19, 2015. See Item 5 “Operating and Financial Review and Prospects—Significant Developments in 2017 and Early 2018—Tundra Acquisition”.
|
14.
|
Letter Agreement dated May 17, 2016, the Second Letter Amendment dated September 26, 2016 and the Third Letter Agreement dated May 30, 2017, by and between Golar Partners Operating LLC and Golar LNG Limited. See Item 5 “Operating and Financial Review and Prospects—Significant Developments in 2017 and Early 2018—Tundra Acquisition” and Note 24 “Related Party Transactions” to our consolidated financial statements for a summary of certain terms.
|
15.
|
Facilities Agreement for an $800 million senior secured amortizing term loan and revolving credit facility, dated April 27, 2016, the First Supplemental Letter to Facilities Agreement, dated April 27, 2016, the Second Supplemental Letter to Facilities Agreement, dated May 22, 2017, the Third Supplemental Letter to Facilities Agreement, dated June 29, 2017 and the Fourth Supplemental Letter to Facilities Agreement, dated January 16, 2018, 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 Note 20 “Debt—$800 million credit facility” to our consolidated financial statements for a summary of certain terms.
|
16.
|
Omnibus Agreement dated June 19, 2016, by and among Golar LNG Ltd., Golar Power Limited, Golar LNG Partners LP, Golar GP LLC and Golar Partners Operating LLC. See “Item 7—Major Unitholders and Related Party Transactions—B. Related Party Transactions” for a summary of certain contract terms.
|
17.
|
Management and Administrative Services Agreement between Golar LNG Partners LP and Golar Management Limited, dated April 1, 2016, as amended. See “Item 7—Major Unitholders and Related Party Transactions—B. Related Party Transactions” for a summary of certain contract terms.
|
18.
|
Exchange Agreement by and among Golar LNG Partners LP, Golar GP LLC and Golar LNG Limited, dated October 13, 2016. See Note 27 “Equity—Exchange of Incentive Distribution Rights” to our consolidated financial statements for a summary of certain terms.
|
19.
|
Bond Agreement dated February 10, 2017 between Golar LNG Partners LP and Nordic Trustee ASA as bond trustee. See See Note 20 “Debt—2017 Norwegian Bonds” to our consolidated financial statements for a summary of certain terms.
|
20.
|
Purchase and Sale Agreement by and among Golar LNG Limited, KS Investments Pte. Ltd., Black & Veatch International Company and Golar Partners Operating LLC, dated August 15, 2017, as amended relating to acquisition of interest in Hilli LLC. See “Item 7—Major Unitholders and Related Party Transactions—B. Related Party Transactions” for a summary of certain contract terms.
|
21.
|
Deed of Guarantee by Golar LNG Partners LP in favor of Sea 24 Leasing Co. Limited in respect of the obligations of Golar LNG NB13 Corporation, dated as of November 19, 2015. See “Item 7-Major Unitholders and Related Party Transactions-B. Related Party Transactions.”
|
22.
|
Indemnity Letter, dated as of October 17, 2017, by and between Golar LNG Partners LP and Golar LNG Limited, pursuant to which Golar LNG Limited agreed to indemnify Golar LNG Partners LP for any liabilities that may arise in connection with its deficiency guarantee of the obligations of Golar Tundra Corp to Golar LNG NB13 Corporation under the sale leaseback arrangement relating to the Golar Tundra. See Note 24 “Related Party Transactions” 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 or Series A Preferred 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 units pertain; and
|
•
|
such holders do not use or hold and are not deemed or considered to use or hold their 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.
|
|
2017
|
|
2016
|
||||
Audit Fees
|
$
|
1,010,092
|
|
|
$
|
901,748
|
|
Tax Fees
|
271,295
|
|
|
45,009
|
|
||
All Other Fees
|
391,873
|
|
|
—
|
|
||
|
$
|
1,673,260
|
|
|
$
|
946,757
|
|
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**
|
|
Third Amended and Restated Agreement of Limited Partnership of Golar LNG Partners LP (incorporated by reference to Exhibit 4.1 to the Registrant’s Form 6K filed on October 31, 2017)
|
2.1**
|
|
Long Term Incentive Plan, adopted May 30, 2016, providing to Employees, Consultants and Directors who perform services for the Partnership and its subsidiaries incentive compensation awards based on Units (incorporated by reference to Exhibit 4.5 to the registrant's Form S-8 filed on July 12, 2016)
|
2.2**
|
|
Exchange Agreement by and among Golar LNG Partners LP, Golar GP LLC and Golar LNG Limited, dated October 13, 2016 (incorporated by reference to Exhibit 10.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on October 19, 2016)
|
4.1**
|
|
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)
|
4.1(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)
|
4.2**
|
|
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)
|
4.3**
|
|
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))
|
4.4**
|
|
$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)
|
4.5**
|
|
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)
|
4.6**
|
|
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)
|
4.7**
|
|
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)
|
4.8**
|
|
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)
|
4.9**
|
|
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)
|
4.10**
|
|
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 (incorporated by reference to Exhibit 4.38 to the registrant’s Annual Report on Form 20-F filed on May 2, 2016)
|
4.11**
|
|
Bareboat charter by and between Golar Eskimo Corp and Sea 23 Leasing Co. Limited, dated November 4, 2015 (incorporated by reference to Exhibit 4.39 to the registrant’s Annual Report on Form 20-F filed on May 2, 2016)
|
4.12**
|
|
Memorandum of Agreement by and between Golar Eskimo Corp and Sea 23 Leasing Co. Limited, dated November 4, 2015 (incorporated by reference to Exhibit 4.40 to the registrant’s Annual Report on Form 20-F filed on May 2, 2016)
|
4.13**
|
|
Common Terms Agreements, by and between Golar Eskimo Corp and Sea 23 Leasing Co. Limited, dated November 4, 2015, providing for the sale and leaseback of the
Golar Eskimo
(incorporated by reference to Exhibit 4.41 to the registrant’s Annual Report on Form 20-F filed on May 2, 2016)
|
4.14**
|
|
Letter Agreement dated May 17, 2016, and Letter Agreement Amendment dated September 26, 2016, by and between Golar Partners Operating LLC and Golar LNG Limited (incorporated by reference to Exhibit 4.8 and 4.9, respectively, to the registrant’s Report of Foreign Issuer on Form 6-K filed on October 3, 2016)
|
4.15**
|
|
Bareboat charter by and between Golar LNG NB 13 Corporation and Sea 24 Leasing Co. Limited, dated November 19, 2015 (incorporated by reference to Exhibit 4.3 to the registrant’s Report of Foreign Issuer on Form 6-K filed on October 3, 2016)
|
4.16**
|
|
Memorandum of Agreement by and between Golar LNG NB 13 Corporation and Sea 24 Leasing Co. Limited, dated November 19, 2015 (incorporated by reference to Exhibit 4.5 to the registrant’s Report of Foreign Issuer on Form 6-K filed on October 3, 2016)
|
4.17**
|
|
Common Terms Agreements, by and between Golar LNG NB 13 Corporation and Sea 24 Leasing Co. Limited, dated November 19, 2015, providing for the sale and leaseback of the
Golar Tundra
(incorporated by reference to Exhibit 4.4 to the registrant’s Report of Foreign Issuer on Form 6-K filed on October 3, 2016)
|
4.18**
|
|
Omnibus Agreement dated June 19, 2016, by and among Golar LNG Ltd., Golar Power Limited, Golar LNG Partners LP, Golar GP LLC and Golar Partners Operating LLC (incorporated by reference to Exhibit 4.10 to the registrant’s Report of Foreign Issuer on Form 6-K filed on October 3, 2016)
|
4.19**
|
|
Supplemental Agreement dated April 28, 2016, by and among Golar LNG NB13 Corporation, Golar LNG Limited, Golar LNG Partners LP and a subsidiary of China Merchants Bank Limited (Tundra SPV) to the Bareboat charter, Memorandum of Agreement and Common Terms Agreements dated November 19, 2015 (incorporated by reference to Exhibit 10.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on February 7, 2017)
|
4.20**
|
|
Management and Administrative Services Agreement between Golar LNG Partners LP and Golar Management Limited, dated April 1, 2016 (incorporated by reference to Exhibit 4.39 to the registrant’s Annual Report on Form 20-F filed on May 1, 2017)
|
4.21**
|
|
Bond Agreement dated February 10, 2017 between Golar LNG Partners LP and Nordic Trustee ASA as bond trustee (incorporated by reference to Exhibit 4.40 to the registrant’s Annual Report on Form 20-F filed on May 1, 2017)
|
4.22**
|
|
Third Amendment to the Letter Agreement dated May 30, 2017, by and between Golar Partners Operating LLC and Golar LNG Limited (incorporated by reference to Exhibit 4.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on June 29, 2017)
|
4.23**
|
|
First Supplemental Letter, dated April 27, 2016 to Facilities Agreement for an $800 million senior secured amortizing term loan and revolving credit facility 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 (incorporated by reference to Exhibit 4.1 to the registrant’s Report of Foreign Issuer on Form 6-K filed on September 13, 2017)
|
4.24**
|
|
Second Supplemental Letter, dated May 22, 2017 to Facilities Agreement for an $800 million senior secured amortizing term loan and revolving credit facility 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 (incorporated by reference to Exhibit 4.2 to the registrant’s Report of Foreign Issuer on Form 6-K filed on September 13, 2017)
|
4.25**
|
|
Third Supplemental Letter, dated June 29, 2017, to Facilities Agreement for an $800 million senior secured amortizing term loan and revolving credit facility 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 (incorporated by reference to Exhibit 4.3 to the registrant’s Report of Foreign Issuer on Form 6-K filed on September 13, 2017)
|
4.26**
|
|
Purchase and Sale Agreement by and among Golar LNG Limited, KS Investments Pte. Ltd., Black & Veatch International Company and Golar Partners Operating LLC, dated August 15, 2017 (incorporated by reference to Exhibit 4.4 to the registrant’s Report of Foreign Issuer on Form 6-K filed on September 13, 2017)
|
4.27*
|
|
|
4.28*
|
|
|
4.29*
|
|
|
4.30*
|
|
|
4.31*
|
|
|
4.32*
|
|
|
4.33*
|
|
|
8.1*
|
|
|
12.1*
|
|
|
13.1*
|
|
|
15.1*
|
|
|
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/ Brian Tienzo
|
|
|
|
|
Name:
|
Brian Tienzo
|
|
|
|
Title:
|
Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer
|
Date:
|
April 16, 2018
|
|
|
|
|
Page
|
GOLAR LNG PARTNERS LP
|
|
AUDITED CONSOLIDATED FINANCIAL STATEMENTS
|
|
/s/ Ernst & Young LLP
|
|
We have served as the Partnership’s auditor since 2014.
|
|
London, United Kingdom
|
|
April 16, 2018
|
|
/s/ Ernst & Young LLP
|
|
London, United Kingdom
|
|
April 16, 2018
|
|
|
Notes
|
|
2017
|
|
|
2016
|
|
|
2015
|
|
|
Operating revenues
|
|
|
|
|
|
|
|
|
|
|
|
Time charter revenues
|
6
|
|
|
415,679
|
|
|
413,230
|
|
|
393,132
|
|
Time charter revenues from related parties
|
24
|
|
|
17,423
|
|
|
28,368
|
|
|
41,555
|
|
Total operating revenues
|
|
|
|
433,102
|
|
|
441,598
|
|
|
434,687
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
Vessel operating expenses
|
24
|
|
|
(68,278
|
)
|
|
(59,886
|
)
|
|
(65,244
|
)
|
Voyage and commission expenses
|
24
|
|
|
(9,694
|
)
|
|
(5,974
|
)
|
|
(7,724
|
)
|
Administrative expenses
|
24
|
|
|
(15,210
|
)
|
|
(8,600
|
)
|
|
(6,643
|
)
|
Depreciation and amortization
|
|
|
|
(103,810
|
)
|
|
(100,468
|
)
|
|
(99,256
|
)
|
Total operating expenses
|
|
|
|
(196,992
|
)
|
|
(174,928
|
)
|
|
(178,867
|
)
|
Operating income
|
|
|
|
236,110
|
|
|
266,670
|
|
|
255,820
|
|
Other non-operating income
|
|
|
922
|
|
|
1,318
|
|
|
—
|
|
|
Financial income (expense)
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
24
|
|
|
7,804
|
|
|
4,295
|
|
|
1,315
|
|
Interest expense
|
24
|
|
|
(75,425
|
)
|
|
(66,938
|
)
|
|
(61,632
|
)
|
Other financial items, net
|
7
|
|
|
(7,567
|
)
|
|
(2,745
|
)
|
|
(17,151
|
)
|
Net financial expenses
|
|
|
|
(75,188
|
)
|
|
(65,388
|
)
|
|
(77,468
|
)
|
Income before income taxes
|
|
|
|
161,844
|
|
|
202,600
|
|
|
178,352
|
|
Income taxes
|
8
|
|
|
(16,996
|
)
|
|
(16,858
|
)
|
|
(5,669
|
)
|
Net income
|
|
|
|
144,848
|
|
|
185,742
|
|
|
172,683
|
|
Net income attributable to non-controlling interests
|
|
|
|
(15,568
|
)
|
|
(13,571
|
)
|
|
(10,547
|
)
|
Net income attributable to Golar LNG Partners LP Owners
|
|
|
129,280
|
|
|
172,171
|
|
|
162,136
|
|
|
|
|
|
|
|
|
|
|
||||
General partners’ interest in net income
(1)
|
|
|
|
2,544
|
|
|
23,135
|
|
|
18,469
|
|
Preferred unitholders’ interest in net income
|
|
|
2,080
|
|
|
—
|
|
|
—
|
|
|
Common unitholders’ interest in net income
|
|
|
|
124,656
|
|
|
139,948
|
|
|
106,476
|
|
Subordinated unitholders’ interest in net income
|
|
|
—
|
|
|
9,088
|
|
|
37,191
|
|
|
|
|
|
|
|
|
|
|
||||
Earnings per unit - Common Units:
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
28
|
|
|
1.82
|
|
|
2.44
|
|
|
2.38
|
|
Diluted
|
28
|
|
|
1.80
|
|
|
2.43
|
|
|
2.38
|
|
|
|
|
|
|
|
|
|
||||
Cash distributions declared and paid per Common unit in the year
|
|
|
2.31
|
|
|
2.31
|
|
|
2.30
|
|
(1)
|
This includes net income attributable to IDR holders of
$nil
,
$19.7 million
and
$15.2 million
for the years ended
December 31, 2017
,
2016
and
2015
, respectively.
|
|
Note
|
|
|
2017
|
|
|
2016
|
|
|
2015
|
|
Net income
|
|
|
144,848
|
|
|
185,742
|
|
|
172,683
|
|
|
Unrealized net gain/(loss) on qualifying cash flow hedging instruments:
|
|
|
|
|
|
|
|
||||
Other comprehensive income/(loss) before reclassification
(1)
|
|
|
94
|
|
|
4,263
|
|
|
(5,106
|
)
|
|
Amounts reclassified from accumulated other comprehensive income/(loss) to the statement of operations
|
7
|
|
|
4,985
|
|
|
409
|
|
|
(2,533
|
)
|
Net other comprehensive income/(loss)
|
|
|
5,079
|
|
|
4,672
|
|
|
(7,639
|
)
|
|
Comprehensive income
|
|
|
149,927
|
|
|
190,414
|
|
|
165,044
|
|
|
Comprehensive income attributable to:
|
|
|
|
|
|
|
|
|
|
|
|
Golar LNG Partners LP Owners
|
|
|
134,359
|
|
|
176,843
|
|
|
154,497
|
|
|
Non-controlling interests
|
|
|
15,568
|
|
|
13,571
|
|
|
10,547
|
|
|
|
|
|
149,927
|
|
|
190,414
|
|
|
165,044
|
|
|
Notes
|
|
2017
|
|
|
2016
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
Current assets
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
246,954
|
|
|
65,710
|
|
Restricted cash and short-term deposits
|
16
|
|
|
27,306
|
|
|
44,927
|
|
Trade accounts receivable
|
11
|
|
|
18,255
|
|
|
20,444
|
|
Amounts due from related parties
|
24
|
|
|
7,625
|
|
|
23,914
|
|
Inventories
|
|
|
|
3,506
|
|
|
1,110
|
|
Other current assets
|
12
|
|
|
7,850
|
|
|
4,822
|
|
Total current assets
|
|
|
|
311,496
|
|
|
160,927
|
|
Non-current assets
|
|
|
|
|
|
|
|
|
Restricted cash
|
16
|
|
|
155,627
|
|
|
117,488
|
|
Vessels and equipment, net
|
13
|
|
|
1,588,923
|
|
|
1,652,710
|
|
Vessel under capital lease, net
|
14
|
|
|
105,945
|
|
|
111,186
|
|
Intangible assets, net
|
15
|
|
|
73,206
|
|
|
86,133
|
|
Amounts due from related parties
|
24
|
|
|
177,247
|
|
|
107,247
|
|
Other non-current assets
|
17
|
|
|
14,927
|
|
|
17,017
|
|
Total assets
|
|
|
|
2,427,371
|
|
|
2,252,708
|
|
LIABILITIES AND EQUITY
|
|
|
|
|
|
|
|
|
Current liabilities
|
|
|
|
|
|
|
|
|
Current portion of long-term debt
|
20
|
|
|
118,850
|
|
|
78,101
|
|
Current portion of obligations under capital lease
|
21
|
|
|
1,276
|
|
|
787
|
|
Trade accounts payable
|
|
|
|
4,780
|
|
|
2,110
|
|
Accrued expenses
|
18
|
|
|
32,240
|
|
|
17,438
|
|
Other current liabilities
|
19
|
|
|
22,941
|
|
|
117,036
|
|
Total current liabilities
|
|
|
|
180,087
|
|
|
215,472
|
|
Non-current liabilities
|
|
|
|
|
|
|
|
|
Long-term debt
|
20
|
|
|
1,252,184
|
|
|
1,296,609
|
|
Obligations under capital lease
|
21
|
|
|
126,805
|
|
|
116,964
|
|
Other non-current liabilities
|
22
|
|
|
20,694
|
|
|
19,234
|
|
Total liabilities
|
|
|
|
1,579,770
|
|
|
1,648,279
|
|
Commitments and contingencies
|
25
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
Partners’ capital:
|
|
|
|
|
|
|
|
|
Common unitholders: 69,768,261 units issued and outstanding at December 31, 2017 (2016: 64,073,291)
|
|
|
|
585,440
|
|
|
490,564
|
|
Preferred unitholders: 5,520,000 preferred units issued and outstanding at December 31, 2017
|
|
|
132,991
|
|
|
—
|
|
|
General partner interest: 1,423,843 units issued and outstanding at December 31, 2017 (2016: 1,318,517)
|
|
|
|
52,600
|
|
|
50,942
|
|
Total partners’ capital
|
|
|
|
771,031
|
|
|
541,506
|
|
Accumulated other comprehensive income/(loss)
|
|
|
|
26
|
|
|
(5,053
|
)
|
Total before non-controlling interests
|
|
|
|
771,057
|
|
|
536,453
|
|
Non-controlling interests
|
|
|
|
76,544
|
|
|
67,976
|
|
Total equity
|
|
|
|
847,601
|
|
|
604,429
|
|
Total liabilities and equity
|
|
|
|
2,427,371
|
|
|
2,252,708
|
|
|
Notes
|
|
2017
|
|
|
2016
|
|
|
2015
|
|
|
Operating activities
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
144,848
|
|
|
185,742
|
|
|
172,683
|
|
Adjustments to reconcile net income to net cash provided by operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
|
103,810
|
|
|
100,468
|
|
|
99,256
|
|
Recognition of foreign tax losses
|
|
|
—
|
|
|
—
|
|
|
(4,945
|
)
|
|
Utilization of deferred tax asset
|
|
|
5,086
|
|
|
5,308
|
|
|
4,076
|
|
|
Movement in deferred tax liability
|
|
|
|
2,085
|
|
|
2,064
|
|
|
—
|
|
Amortization of deferred charges
|
|
|
|
5,969
|
|
|
8,412
|
|
|
6,308
|
|
Unrealized foreign exchange loss/(gains)
|
|
|
|
3,657
|
|
|
(532
|
)
|
|
(493
|
)
|
Unit options expense
|
26
|
|
|
238
|
|
|
23
|
|
|
—
|
|
Drydocking expenditure
|
|
|
|
(20,660
|
)
|
|
(4,060
|
)
|
|
(15,093
|
)
|
Realized loss on bond repurchase
|
|
|
6,327
|
|
|
—
|
|
|
—
|
|
|
Interest element included in obligation under capital lease
|
|
|
|
534
|
|
|
(1,205
|
)
|
|
279
|
|
Change in assets and liabilities, net of effects from purchase of subsidiaries:
|
|
|
|
|
|
|
|
||||
Trade accounts receivable
|
|
|
|
2,189
|
|
|
1,126
|
|
|
(11,704
|
)
|
Inventories
|
|
|
|
458
|
|
|
230
|
|
|
(642
|
)
|
Other current assets and non-current assets
|
|
|
|
(2,240
|
)
|
|
(5,305
|
)
|
|
3,188
|
|
Amounts due to/(from) related parties
|
|
|
|
17,856
|
|
|
(17,512
|
)
|
|
(18,071
|
)
|
Trade accounts payable
|
|
|
|
1,417
|
|
|
(1,700
|
)
|
|
902
|
|
Accrued expenses
|
|
|
|
9,889
|
|
|
(4,746
|
)
|
|
(4,578
|
)
|
Restricted cash
|
|
|
(5
|
)
|
|
(129
|
)
|
|
(7,686
|
)
|
|
Other current liabilities
|
|
|
|
(10,455
|
)
|
|
(6,952
|
)
|
|
(11,250
|
)
|
Net cash provided by operating activities
|
|
|
|
271,003
|
|
|
261,232
|
|
|
212,230
|
|
Investing activities
|
|
|
|
|
|
|
|
|
|
|
|
Additions to vessels and equipment
|
|
|
|
(426
|
)
|
|
—
|
|
|
(3,667
|
)
|
Acquisition of
Golar Eskimo,
net of cash acquired
(1)
|
|
|
—
|
|
|
—
|
|
|
(5,971
|
)
|
|
Deposits made in connection with acquisitions from Golar
|
24
|
|
|
(70,000
|
)
|
|
(107,247
|
)
|
|
—
|
|
Short-term debt granted to related parties
|
|
|
—
|
|
|
—
|
|
|
(50,000
|
)
|
|
Repayment of short-term debt granted to related parties
|
|
|
—
|
|
|
—
|
|
|
50,000
|
|
|
Restricted cash
|
|
|
|
—
|
|
|
—
|
|
|
10,372
|
|
Net cash (used in)/provided by investing activities
|
|
|
|
(70,426
|
)
|
|
(107,247
|
)
|
|
734
|
|
Financing activities
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from long-term debt
|
20
|
|
|
375,000
|
|
|
815,000
|
|
|
644,070
|
|
Repayments of long-term debt (including related parties)
|
|
|
|
(228,816
|
)
|
|
(770,422
|
)
|
|
(707,202
|
)
|
Repurchase of high yield bonds and related swaps
|
|
|
(234,197
|
)
|
|
—
|
|
|
—
|
|
|
Repayments of obligation under capital lease
|
|
|
|
(821
|
)
|
|
(122
|
)
|
|
—
|
|
Financing arrangement fees and other costs
|
|
|
|
(5,377
|
)
|
|
(13,521
|
)
|
|
(6,628
|
)
|
Proceeds from issuances of equity, net of issue costs
|
27
|
|
|
255,040
|
|
|
—
|
|
|
—
|
|
Common units repurchased and canceled
|
27
|
|
|
—
|
|
|
(495
|
)
|
|
(5,970
|
)
|
Restricted cash
|
|
|
(12,102
|
)
|
|
7,627
|
|
|
(31,248
|
)
|
|
Cash distributions paid
|
|
|
|
(161,060
|
)
|
|
(154,668
|
)
|
|
(152,898
|
)
|
Dividends paid to non-controlling interests
|
|
|
|
(7,000
|
)
|
|
(12,360
|
)
|
|
(11,400
|
)
|
Net cash used in financing activities
|
|
|
|
(19,333
|
)
|
|
(128,961
|
)
|
|
(271,276
|
)
|
Net increase/(decrease) in cash and cash equivalents
|
|
|
|
181,244
|
|
|
25,024
|
|
|
(58,312
|
)
|
Cash and cash equivalents at beginning of year
|
|
|
|
65,710
|
|
|
40,686
|
|
|
98,998
|
|
Cash and cash equivalents at end of year
|
|
|
|
246,954
|
|
|
65,710
|
|
|
40,686
|
|
|
|
|
|
|
|
|
|
||||
Supplemental disclosure of cash flow information:
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid during the year for:
|
|
|
|
|
|
|
|
|
|
|
|
Interest paid
|
|
|
|
62,670
|
|
|
58,005
|
|
|
52,814
|
|
Income taxes paid
|
|
|
|
4,470
|
|
|
5,278
|
|
|
5,124
|
|
|
|
Partners’ Capital
|
Accumulated
Other
Comprehensive
Income/
(loss)
|
|
Total
before
Non-
controlling
interest
|
|
Non-
controlling
Interest
|
|
Total
Owner’s
Equity
|
|||||||||||||||
|
Note
|
Preferred
Units |
|
Common
Units
|
|
Subordinated
Units
|
|
General
Partner Units and IDRs
(2)
|
|
|
|
|||||||||||||
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
|
|
|
Net income
|
|
—
|
|
|
139,948
|
|
|
9,088
|
|
|
23,135
|
|
—
|
|
|
172,171
|
|
|
13,571
|
|
|
185,742
|
|
|
Cash distributions
(1)
|
|
—
|
|
|
(124,400
|
)
|
|
(18,422
|
)
|
|
(11,846
|
)
|
—
|
|
|
(154,668
|
)
|
|
—
|
|
|
(154,668
|
)
|
|
Non-controlling interest dividends
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
(12,360
|
)
|
|
(12,360
|
)
|
|
Other comprehensive income
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
4,672
|
|
|
4,672
|
|
|
—
|
|
|
4,672
|
|
|
Common units repurchased and canceled
|
|
—
|
|
|
(495
|
)
|
|
—
|
|
|
—
|
|
—
|
|
|
(495
|
)
|
|
—
|
|
|
(495
|
)
|
|
Conversion of subordinated units
|
27
|
|
—
|
|
|
3,315
|
|
|
(3,315
|
)
|
|
—
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Grant of unit options
|
|
—
|
|
|
23
|
|
|
—
|
|
|
—
|
|
—
|
|
|
23
|
|
|
—
|
|
|
23
|
|
|
Exchange of IDRs
|
27
|
|
—
|
|
|
(14,360
|
)
|
|
—
|
|
|
(640
|
)
|
—
|
|
|
(15,000
|
)
|
|
—
|
|
|
(15,000
|
)
|
Consolidated balance at December 31, 2016
|
|
—
|
|
|
490,564
|
|
|
—
|
|
|
50,942
|
|
(5,053
|
)
|
|
536,453
|
|
|
67,976
|
|
|
604,429
|
|
|
Net income
|
|
2,080
|
|
|
124,656
|
|
|
—
|
|
|
2,544
|
|
—
|
|
|
129,280
|
|
|
15,568
|
|
|
144,848
|
|
|
Cash distributions
(1)
|
|
(2,080
|
)
|
|
(157,840
|
)
|
|
—
|
|
|
(3,221
|
)
|
—
|
|
|
(163,141
|
)
|
|
—
|
|
|
(163,141
|
)
|
|
Non-controlling interest dividends
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
—
|
|
|
—
|
|
|
(7,000
|
)
|
|
(7,000
|
)
|
|
Other comprehensive income
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
5,079
|
|
|
5,079
|
|
|
—
|
|
|
5,079
|
|
|
Net proceeds from issuance of common units
|
|
—
|
|
|
119,902
|
|
|
—
|
|
|
2,214
|
|
—
|
|
|
122,116
|
|
|
—
|
|
|
122,116
|
|
|
Conversion of earn-out units
|
|
—
|
|
|
7,920
|
|
|
—
|
|
|
121
|
|
—
|
|
|
8,041
|
|
|
—
|
|
|
8,041
|
|
|
Net proceeds from issuance of preferred units
|
27
|
|
132,991
|
|
|
—
|
|
|
—
|
|
|
—
|
|
—
|
|
|
132,991
|
|
|
—
|
|
|
132,991
|
|
Grant of unit options
|
|
—
|
|
|
238
|
|
|
—
|
|
|
—
|
|
—
|
|
|
238
|
|
|
—
|
|
|
238
|
|
|
Consolidated balance at December 31, 2017
|
|
132,991
|
|
|
585,440
|
|
|
—
|
|
|
52,600
|
|
26
|
|
|
771,057
|
|
|
76,544
|
|
|
847,601
|
|
(1)
|
This includes cash distributions to IDR holders for the years ended
December 31, 2017
,
2016
and
2015
of
$nil
,
$8.8 million
and
$8.7 million
, respectively. In addition it includes accrued distributions to Series A Preferred Unitholders for the period from issuance (October 31, 2017) to December 31, 2017.
|
(2)
|
As of December 31, 2017, the carrying value of the equity attributable to the IDR holders was
$32.5 million
(2016:
$32.5 million
)
|
(in thousands of $)
|
|
2017
|
|
2016
|
|
2015
|
|||
Unrealized net loss on qualifying cash flow hedging instruments
|
|
26
|
|
|
(5,053
|
)
|
|
(9,725
|
)
|
Vessels (excluding converted FSRUs)
|
40 years
|
Vessels - Converted FSRUs
|
20 years from conversion date
|
Drydocking expenditure
|
5 years
|
Mooring equipment
|
11 years
|
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
|
Golar Servicos de Operacao de Embaracaoes Limited
|
|
Brazil
|
|
Management Company
|
Golar Winter Corporation
|
|
Marshall Islands
|
|
Owns
Golar Winter
|
Golar Winter UK Ltd
|
|
United Kingdom
|
|
Operates
Golar Winter
|
Golar Spirit Corporation
|
|
Marshall Islands
|
|
Owns
Golar Spirit
|
Golar Spirit UK Ltd
|
|
United Kingdom
|
|
Operates
Golar Spirit
|
Faraway Maritime Shipping Company (60% ownership)
|
|
Republic of Liberia
|
|
Owns and operates
Golar Mazo
|
Golar LNG 2215 Corporation
|
|
Marshall Islands
|
|
Leases
Methane Princess
|
Golar 2215 UK Ltd
|
|
United Kingdom
|
|
Operates
Methane Princess
|
Golar Freeze Holding Corporation
|
|
Marshall Islands
|
|
Owns
Golar Freeze
|
Golar Freeze UK Ltd
|
|
United Kingdom
|
|
Operates
Golar Freeze
|
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 Grand Corporation
|
|
Marshall Islands
|
|
Owns and operates
Golar Grand
|
Golar LNG 2234 LLC
|
|
Republic of Liberia
|
|
Owns and operates
Golar Maria
|
Golar Hull M2031 Corporation
|
|
Marshall Islands
|
|
Owns and operates
Golar Igloo
|
Golar Eskimo Corporation**
|
|
Marshall Islands
|
|
Leases and operates
Golar Eskimo
|
(in $ thousands)
|
2018
|
2019
|
2020
|
2021
|
2022
|
After 2022
|
||||||
Golar Eskimo*
|
25,930
|
|
25,798
|
|
25,026
|
|
23,919
|
|
22,789
|
|
58,826
|
|
(in $ thousands)
|
2017
|
|
2016
|
||
Liabilities
|
|
|
|
||
Long-term debt (refer to note 20)
|
212,084
|
|
|
232,931
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
ASSETS
|
|
|
|
|
||
Cash
|
|
16,016
|
|
|
14,124
|
|
Restricted cash (see note 16)
|
|
10,270
|
|
|
10,361
|
|
Vessels and equipment, net*
|
|
269,624
|
|
|
290,638
|
|
Other assets
|
|
4,348
|
|
|
12,121
|
|
Total assets
|
|
300,258
|
|
|
327,244
|
|
|
|
|
|
|
||
LIABILITIES AND EQUITY
|
|
|
|
|
||
Accrued liabilities
|
|
11,675
|
|
|
9,989
|
|
Current portion of long-term debt
|
|
19,759
|
|
|
13,633
|
|
Amounts due to related parties
|
|
107,838
|
|
|
135,809
|
|
Non-current debt
|
|
82,741
|
|
|
102,500
|
|
Other liabilities
|
|
515
|
|
|
68
|
|
Total liabilities
|
|
222,528
|
|
|
261,999
|
|
Total equity
|
|
77,730
|
|
|
65,245
|
|
Total liabilities and equity
|
|
300,258
|
|
|
327,244
|
|
•
|
LNG carriers are vessels that transport LNG and are compatible with many LNG loading and receiving terminals globally.
Four
of our vessels are LNG carriers; and
|
•
|
FSRUs are vessels that are permanently located offshore to regasify LNG.
Six
of our vessels are FSRUs.
|
|
|
2017
|
|
2016
|
|
2015
|
||||||||||||||||||||||||
(in thousands of $)
|
|
FSRU
|
LNG Carrier
|
Unallocated/ Elimination
(1)
|
|
Total
|
|
FSRU
|
LNG Carrier
|
Unallocated/ Elimination
(1)
|
|
Total
|
|
FSRU
|
LNG Carrier
|
Unallocated/ Elimination
(1)
|
|
Total
|
||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Statement of operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Operating revenues
|
|
316,599
|
|
116,503
|
|
—
|
|
|
433,102
|
|
|
322,373
|
|
119,225
|
|
—
|
|
|
441,598
|
|
|
307,344
|
|
127,343
|
|
—
|
|
|
434,687
|
|
Depreciation and amortization
|
|
(80,762
|
)
|
(23,048
|
)
|
—
|
|
|
(103,810
|
)
|
|
(78,025
|
)
|
(22,443
|
)
|
—
|
|
|
(100,468
|
)
|
|
(77,036
|
)
|
(22,220
|
)
|
—
|
|
|
(99,256
|
)
|
Other operating expenses
(2)
|
|
(66,364
|
)
|
(26,818
|
)
|
—
|
|
|
(93,182
|
)
|
|
(54,706
|
)
|
(19,754
|
)
|
—
|
|
|
(74,460
|
)
|
|
(54,481
|
)
|
(25,130
|
)
|
—
|
|
|
(79,611
|
)
|
Operating income
|
|
169,473
|
|
66,637
|
|
—
|
|
|
236,110
|
|
|
189,642
|
|
77,028
|
|
—
|
|
|
266,670
|
|
|
175,827
|
|
79,993
|
|
—
|
|
|
255,820
|
|
Other non-operating income
|
|
922
|
|
—
|
|
—
|
|
|
922
|
|
|
1,318
|
|
—
|
|
—
|
|
|
1,318
|
|
|
—
|
|
—
|
|
—
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Balance sheet:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Total assets
(3)
|
|
1,149,595
|
|
545,225
|
|
732,551
|
|
|
2,427,371
|
|
|
1,206,186
|
|
557,682
|
|
488,840
|
|
|
2,252,708
|
|
|
1,271,650
|
|
575,725
|
|
384,287
|
|
|
2,231,662
|
|
Capital expenditure
(4)
|
|
11,226
|
|
11,215
|
|
—
|
|
|
22,441
|
|
|
344
|
|
5,026
|
|
—
|
|
|
5,370
|
|
|
309,225
|
|
2,043
|
|
—
|
|
|
311,268
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
|
2015
|
||||||||||||
Petrobras
|
|
94,588
|
|
|
22
|
%
|
|
103,368
|
|
|
23
|
%
|
|
100,052
|
|
|
23
|
%
|
PTNR
|
|
72,495
|
|
|
17
|
%
|
|
67,774
|
|
|
15
|
%
|
|
67,325
|
|
|
15
|
%
|
Jordan
|
|
57,144
|
|
|
13
|
%
|
|
57,112
|
|
|
13
|
%
|
|
37,750
|
|
|
9
|
%
|
KNPC
|
|
47,645
|
|
|
11
|
%
|
|
47,654
|
|
|
11
|
%
|
|
47,402
|
|
|
11
|
%
|
DUSUP
|
|
44,726
|
|
|
10
|
%
|
|
46,465
|
|
|
11
|
%
|
|
41,970
|
|
|
10
|
%
|
Revenues (in thousands of $)
|
|
2017
|
|
2016
|
|
2015
|
|||
Brazil
|
|
94,588
|
|
|
103,368
|
|
|
100,052
|
|
Indonesia
|
|
72,495
|
|
|
67,774
|
|
|
67,325
|
|
Jordan
|
|
57,144
|
|
|
57,112
|
|
|
37,750
|
|
Kuwait
|
|
47,645
|
|
|
47,654
|
|
|
47,402
|
|
United Arab Emirates
|
|
44,726
|
|
|
46,465
|
|
|
41,970
|
|
Fixed assets (in thousands of $)
|
|
2017
|
|
2016
|
||
Brazil
|
|
223,900
|
|
|
347,366
|
|
Jordan
|
|
269,846
|
|
|
278,588
|
|
Kuwait
|
|
259,310
|
|
|
267,055
|
|
Indonesia
|
|
177,205
|
|
|
191,139
|
|
United Arab Emirates
|
|
108,776
|
|
|
122,078
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
|
2015
|
|||
Mark-to-market adjustment for interest rate swap derivatives
|
|
12,074
|
|
|
9,893
|
|
|
655
|
|
Interest expense on un-designated interest rate swaps
|
|
(7,554
|
)
|
|
(10,824
|
)
|
|
(14,385
|
)
|
Losses on repurchase of 2012 High-Yield Bonds and related cross currency interest rate swap
(1)
|
|
(6,506
|
)
|
|
—
|
|
|
—
|
|
Premium paid on repurchase of 2012 High Yield Bond
|
|
(2,820
|
)
|
|
—
|
|
|
—
|
|
Financing arrangement fees and other costs
|
|
(1,283
|
)
|
|
(1,468
|
)
|
|
(1,694
|
)
|
Foreign exchange (loss)/gain on capital lease obligations and related restricted cash
|
|
(659
|
)
|
|
945
|
|
|
492
|
|
Mark-to-market adjustment on Earn-Out Units
(2)
|
|
(441
|
)
|
|
—
|
|
|
—
|
|
Foreign exchange loss on operations
|
|
(378
|
)
|
|
(1,291
|
)
|
|
(2,235
|
)
|
Mark-to-market adjustment for currency swap derivative
|
|
—
|
|
|
—
|
|
|
16
|
|
Total
|
|
(7,567
|
)
|
|
(2,745
|
)
|
|
(17,151
|
)
|
(in thousands of $)
|
|
2017
|
|
2016
|
|
2015
|
|||
Current tax expense/(credit):
|
|
|
|
|
|
|
|
|
|
United Kingdom
|
|
469
|
|
|
411
|
|
|
(1,098
|
)
|
Indonesia
|
|
5,584
|
|
|
5,579
|
|
|
3,641
|
|
Brazil
|
|
1,160
|
|
|
1,350
|
|
|
716
|
|
Kuwait
|
|
2,144
|
|
|
2,146
|
|
|
2,133
|
|
Barbados
|
|
468
|
|
|
—
|
|
|
—
|
|
Total current tax expense
|
|
9,825
|
|
|
9,486
|
|
|
5,392
|
|
Deferred tax expense/(income):
|
|
|
|
|
|
|
|
|
|
Indonesia
|
|
5,086
|
|
|
5,304
|
|
|
(869
|
)
|
Jordan
|
|
2,085
|
|
|
2,068
|
|
|
1,146
|
|
Total income tax expense
|
|
16,996
|
|
|
16,858
|
|
|
5,669
|
|
(In thousands of $)
|
|
2017
|
|
2016
|
|
2015
|
|||
Effect of change on uncertain tax positions relating to prior year
|
|
685
|
|
|
133
|
|
|
(1,894
|
)
|
Effect of recognition of deferred tax asset
|
|
—
|
|
|
—
|
|
|
(4,945
|
)
|
Effect of taxable income in various countries
|
|
16,311
|
|
|
16,725
|
|
|
12,508
|
|
Total tax expense
|
|
16,996
|
|
|
16,858
|
|
|
5,669
|
|
Jurisdiction
|
|
Earliest
|
UK
|
|
2015
|
Brazil
|
|
2012
|
Indonesia
|
|
2016
|
Kuwait
|
|
2017
|
Jordan
|
|
2015
|
Barbados
|
|
2017
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Deferred tax asset
|
|
—
|
|
|
5,086
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Deferred tax asset
|
|
250
|
|
|
534
|
|
Deferred tax liability
|
|
(5,545
|
)
|
|
(3,744
|
)
|
Net deferred tax liability
|
|
(5,295
|
)
|
|
(3,210
|
)
|
(in thousands of $)
|
|
2017
|
|
2016
|
|
2015
|
|||
Balance at January 1
|
|
5,086
|
|
|
10,393
|
|
|
9,524
|
|
Adjustment in respect of prior year
|
|
(836
|
)
|
|
—
|
|
|
—
|
|
Recognition of deferred tax assets on previously unrecognized losses
|
|
—
|
|
|
—
|
|
|
4,945
|
|
Utilization of tax losses
|
|
(4,250
|
)
|
|
(5,307
|
)
|
|
(4,076
|
)
|
Balance at December 31
|
|
—
|
|
|
5,086
|
|
|
10,393
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Balance at January 1
|
|
(3,210
|
)
|
|
(1,146
|
)
|
Adjustment in respect of prior year
|
|
—
|
|
|
150
|
|
Utilization of tax losses
|
|
(284
|
)
|
|
(409
|
)
|
Recognition of deferred liability on fixed asset temporary differences
|
|
(1,801
|
)
|
|
(1,805
|
)
|
Balance at December 31
|
|
(5,295
|
)
|
|
(3,210
|
)
|
(in thousands of $)
|
|
Amount
|
|
Date of expiration
|
Net operating losses in 2015 (
Golar Eskimo
)
|
|
4,991
|
|
2020
|
Year ending December 31,
(in thousands of $)
|
|
Total
|
|
|
2018
|
|
301,555
|
|
(1)
|
2019
|
|
225,500
|
|
|
2020
|
|
214,441
|
|
|
2021
|
|
213,855
|
|
|
2022 and thereafter
|
|
268,940
|
|
|
Total
|
|
1,224,291
|
|
|
|
Golar Eskimo
|
|
(in thousands of $)
|
January 20, 2015
|
|
Purchase consideration
(1)
|
226,010
|
|
Less: Fair value of net assets (liabilities) acquired:
|
|
|
Vessel and equipment
|
292,872
|
|
Intangible asset
|
95,520
|
|
Cash
|
298
|
|
Other assets and liabilities
|
150
|
|
Long-term debt
|
(162,830
|
)
|
Subtotal
|
(226,010
|
)
|
Difference between the purchase price and fair value of net assets acquired
|
—
|
|
(in thousands of $)
|
Golar Eskimo
|
|
Loan from Golar
|
220,000
|
|
Cash consideration paid to Golar
|
7,170
|
|
Purchase price adjustments
|
(1,160
|
)
|
|
226,010
|
|
|
Unaudited
|
|
(in thousands of $, except per unit data)
|
2015
|
|
Revenues
|
435,573
|
|
Net income
|
163,022
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Prepaid expenses
|
|
5,137
|
|
|
2,365
|
|
Other receivables
|
|
2,713
|
|
|
2,457
|
|
|
|
7,850
|
|
|
4,822
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Cost
|
|
2,259,132
|
|
|
2,267,819
|
|
Accumulated depreciation
|
|
(670,209
|
)
|
|
(615,109
|
)
|
Net book value
|
|
1,588,923
|
|
|
1,652,710
|
|
Vessel
|
2017 Market value
(1)
|
2017 Carrying value
|
Deficit
|
(in millions of $)
|
|
|
|
Golar Winter
|
171.3
|
223.9
|
(52.6)
|
NR Satu
|
143.8
|
177.2
|
(33.4)
|
Methane Princess
(2)
|
105.3
|
105.9
|
(0.6)
|
Golar Maria
|
97.5
|
187.2
|
(89.7)
|
Golar Grand
|
97.3
|
112.4
|
(15.1)
|
Golar Mazo
|
83.8
|
139.7
|
(55.9)
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Cost
|
|
168,840
|
|
|
168,577
|
|
Accumulated depreciation and amortization
|
|
(62,895
|
)
|
|
(57,391
|
)
|
Net book value
|
|
105,945
|
|
|
111,186
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Cost
|
|
114,616
|
|
|
114,616
|
|
Accumulated amortization
|
|
(41,410
|
)
|
|
(28,483
|
)
|
Net book value
|
|
73,206
|
|
|
86,133
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Methane Princess lease security deposits (see note 21)
|
|
119,548
|
|
|
111,958
|
|
Restricted cash relating to the $800 million facility (see note 20)
|
|
41,656
|
|
|
—
|
|
Restricted cash relating to the cross currency interest rate swap (see note 23)
|
|
—
|
|
|
32,410
|
|
Restricted cash relating to the NR Satu facility (see notes 5 and 20)
|
|
10,270
|
|
|
10,361
|
|
Restricted cash held by Eskimo SPV (see note 5)
|
|
3,764
|
|
|
—
|
|
Restricted cash relating to performance guarantees
|
|
7,695
|
|
|
7,686
|
|
Total restricted cash
|
|
182,933
|
|
|
162,415
|
|
Less: current portion of restricted cash
|
|
(27,306
|
)
|
|
(44,927
|
)
|
Non-current restricted cash
|
|
155,627
|
|
|
117,488
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Mark-to-market interest rate swaps valuation (see note 23)
|
|
11,937
|
|
|
8,194
|
|
Deferred tax asset (see note 8)
|
|
—
|
|
|
5,086
|
|
Other non-current assets
|
|
2,990
|
|
|
3,737
|
|
|
|
14,927
|
|
|
17,017
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Interest expense
|
|
16,858
|
|
|
10,074
|
|
Current tax payable
|
|
7,903
|
|
|
1,461
|
|
Vessel operating and drydocking expenses
|
|
6,671
|
|
|
5,424
|
|
Administrative expenses
|
|
808
|
|
|
479
|
|
|
|
32,240
|
|
|
17,438
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Deferred revenue
|
|
9,733
|
|
|
13,554
|
|
Derivative - earn-out units (see notes 23 and 27)
|
|
7,400
|
|
|
15,000
|
|
Preferred units dividend payable (see note 27)
|
|
2,080
|
|
|
—
|
|
Mark-to-market interest rate swaps valuation (see note 23)
|
|
1,618
|
|
|
6,143
|
|
Other creditors
|
|
1,485
|
|
|
260
|
|
Deferred credits from capital lease transactions (see note 22)
|
|
625
|
|
|
625
|
|
Mark-to-market cross currency interest rate swaps valuation (see note 23)
|
|
—
|
|
|
81,454
|
|
|
|
22,941
|
|
|
117,036
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Total debt, net of deferred finance charges
|
|
1,371,034
|
|
|
1,374,710
|
|
Less: Current portion of long-term debt due to third parties, net of deferred finance charges
|
|
(118,850
|
)
|
|
(78,101
|
)
|
Long-term debt, net of deferred finance charges
|
|
1,252,184
|
|
|
1,296,609
|
|
Year Ending December 31,
(in thousands of $)
|
|
|
|
2018
|
|
122,317
|
|
2019
|
|
135,183
|
|
2020
|
|
202,000
|
|
2021
|
|
716,000
|
|
2022 and thereafter
|
|
212,084
|
|
Total debt
|
|
1,387,584
|
|
Less: deferred finance charges
|
|
(16,550
|
)
|
Total debt, net deferred finance charges
|
|
1,371,034
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
|
Maturity date
|
||
$800 million credit facility
|
|
672,000
|
|
|
740,667
|
|
|
2021
|
2015 Norwegian Bonds
|
|
150,000
|
|
|
150,000
|
|
|
2020
|
2017 Norwegian Bonds
|
|
250,000
|
|
|
—
|
|
|
2021
|
NR Satu Facility
|
|
103,500
|
|
|
117,800
|
|
|
2019
|
Eskimo SPV Debt
|
|
212,084
|
|
|
232,931
|
|
|
2025 *
|
High-Yield Bonds
|
|
—
|
|
|
150,452
|
|
|
2017
|
Total debt
|
|
1,387,584
|
|
|
1,391,850
|
|
|
|
•
|
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.
|
•
|
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
.
|
•
|
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.
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Total obligations under capital lease
|
|
128,081
|
|
|
117,751
|
|
Less: current portion of obligations under capital lease
|
|
(1,276
|
)
|
|
(787
|
)
|
Non-current portion of obligations under capital lease
|
|
126,805
|
|
|
116,964
|
|
Year ending December 31,
(in thousands of $)
|
|
Methane
Princess Lease
|
|
2018
|
|
7,893
|
|
2019
|
|
8,201
|
|
2020
|
|
8,514
|
|
2021
|
|
8,846
|
|
2022
|
|
9,181
|
|
2023 and thereafter
|
|
167,783
|
|
Total minimum lease payments
|
|
210,418
|
|
Less: Imputed interest
|
|
(82,337
|
)
|
Present value of minimum lease payments
|
|
128,081
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Deferred tax liability (see note 8)
|
|
5,295
|
|
|
3,210
|
|
Deferred credits from capital lease transactions
|
|
15,399
|
|
|
16,024
|
|
|
|
20,694
|
|
|
19,234
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Deferred credits from capital lease transactions
|
|
24,691
|
|
|
24,691
|
|
Less: Accumulated amortization
|
|
(8,667
|
)
|
|
(8,042
|
)
|
|
|
16,024
|
|
|
16,649
|
|
Current
|
|
625
|
|
|
625
|
|
Non-current
|
|
15,399
|
|
|
16,024
|
|
|
|
16,024
|
|
|
16,649
|
|
Instrument
(in thousands of $)
|
|
Year Ended
|
|
Notional Amount
|
|
Maturity
Dates
|
|
Fixed Interest
Rate
|
||||||
Interest rate swaps:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Receiving floating, pay fixed
|
|
December 31, 2017
|
|
1,335,307
|
|
|
2018
|
to
|
2023
|
|
1.07
|
%
|
to
|
2.44%
|
Receiving floating, pay fixed
|
|
December 31, 2016
|
|
1,131,746
|
|
|
2018
|
to
|
2023
|
|
1.07
|
%
|
to
|
2.44%
|
Derivatives designated as
hedging instruments
|
|
|
|
Effective
portion gain/
(loss) reclassified from
Accumulated Other
Comprehensive Loss
|
|
Ineffective Portion
|
||||||||||||||
(in thousands of $)
|
|
Location
|
|
2017
|
|
2016
|
|
2015
|
|
2017
|
|
2016
|
|
2015
|
||||||
Interest rate swaps
|
|
Other financial items, net
|
|
—
|
|
|
(409
|
)
|
|
2,533
|
|
|
(1
|
)
|
|
(639
|
)
|
|
411
|
|
Derivatives designated as hedging instruments
|
|
Amount of gain/
(loss) recognized in
OCI on derivative
(effective portion)
|
|||||||
(in thousands of $)
|
|
2017
|
|
2016
|
|
2015
|
|||
Interest rate swaps
|
|
94
|
|
|
147
|
|
|
(174
|
)
|
Derivatives designated as hedging instruments
|
|
Amount of gain
(loss) recognized in
OCI on derivative
(effective portion)
|
|||||||
(in thousands of $)
|
|
2017
|
|
2016
|
|
2015
|
|||
Cross currency interest rate swap
|
|
—
|
|
|
4,116
|
|
|
(4,933
|
)
|
(in thousands of $)
|
|
Fair Value
Hierarchy(1)
|
|
2017 Carrying Value
|
|
2017 Fair Value
|
|
2016 Carrying Value
|
|
2016 Fair Value
|
||||
Non-Derivatives:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
Level 1
|
|
246,954
|
|
|
246,954
|
|
|
65,710
|
|
|
65,710
|
|
Restricted cash and short-term deposits
|
|
Level 1
|
|
182,933
|
|
|
182,933
|
|
|
162,415
|
|
|
162,415
|
|
High-Yield, 2015 and 2017 Norwegian Bonds
(1)
|
|
Level 1
|
|
400,000
|
|
|
392,445
|
|
|
300,452
|
|
|
293,484
|
|
Short-term and long-term debt—floating
(2)
|
|
Level 2
|
|
987,584
|
|
|
987,584
|
|
|
1,091,398
|
|
|
1,091,398
|
|
Obligations under capital leases
(2)
|
|
Level 2
|
|
128,081
|
|
|
128,081
|
|
|
117,751
|
|
|
117,751
|
|
Derivatives:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate swaps asset
(3)(4)
|
|
Level 2
|
|
11,962
|
|
|
11,962
|
|
|
8,194
|
|
|
8,194
|
|
Interest rate swaps liability
(3)(4)
|
|
Level 2
|
|
1,618
|
|
|
1,618
|
|
|
6,143
|
|
|
6,143
|
|
Cross currency interest rate swap liability
(3)(5)
|
|
Level 2
|
|
—
|
|
|
—
|
|
|
81,454
|
|
|
81,454
|
|
Earn-out units
(6)
|
|
Level 2
|
|
7,400
|
|
|
7,400
|
|
|
15,000
|
|
|
15,000
|
|
1.
|
This pertains to bonds with a combined carrying value of
$400.0 million
as of
December 31, 2017
(
2016
:
$300.5 million
) which is included under long-term debt on the balance sheet. The fair value of the bonds as of
December 31, 2017
was
$392.4 million
(
2016
:
$293.5 million
), which represents
98.1%
(
2016
:
97.7%
) of their face value. In February 2017, we completed the issuance and sale of
$250 million
of the 2017 Norwegian Bonds which will mature in May 2021. During 2017, we repaid our High-Yield Bonds and settled the corresponding cross-currency interest rate swap liabilities.
|
2.
|
Our debt and capital lease obligations are recorded at amortized cost in the consolidated balance sheets. Debt is presented in the above table, gross of deferred financing cost of
$16.6 million
as of
December 31, 2017
(
2016
:
$17.1 million
).
|
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 below) that qualify and are designated as cash flow hedges as of
December 31, 2017
and
2016
was
$0.1 million
(with a notional amount of
$72.5 million
) and
$0.1 million
(with a notional amount of
$82.5 million
), respectively. The expected maturity of these interest rate agreements is in
February 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
|
6.
|
This relates to the Earn-Out Units issued in connection with the IDR reset transaction in October 2016. See note 27 for further details.
|
|
|
December 31, 2017
|
|
December 31, 2016
|
||||||||||||||
(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
|
|
11,962
|
|
|
(1,618
|
)
|
|
10,344
|
|
|
8,194
|
|
|
(4,194
|
)
|
|
4,000
|
|
Total liability derivatives
|
|
1,618
|
|
|
(1,618
|
)
|
|
—
|
|
|
6,143
|
|
|
(4,194
|
)
|
|
1,949
|
|
(in thousands of $)
|
|
2017
|
|
2016
|
|
2015
|
|||
Transactions with Golar and affiliates:
|
|
|
|
|
|
|
|
|
|
Time charter revenues (a)
|
|
17,423
|
|
|
28,368
|
|
|
41,555
|
|
Management and administrative services fees (b)
|
|
(7,762
|
)
|
|
(4,251
|
)
|
|
(2,949
|
)
|
Ship management fees (c)
|
|
(5,903
|
)
|
|
(6,466
|
)
|
|
(7,577
|
)
|
Expense in connection with the Golar Eskimo Vendor Loan (d)
|
|
—
|
|
|
—
|
|
|
(4,217
|
)
|
Interest income on short-term loans (e)
|
|
—
|
|
|
122
|
|
|
203
|
|
Share options expense (f)
|
|
(228
|
)
|
|
(181
|
)
|
|
(297
|
)
|
Income on deposits paid to Golar (g)
|
|
4,622
|
|
|
1,967
|
|
|
—
|
|
Distributions to Golar (h)
|
|
(52,255
|
)
|
|
(54,688
|
)
|
|
(52,130
|
)
|
Fees to Helm Energy Advisors Inc. (i)
|
|
—
|
|
|
(795
|
)
|
|
(2,307
|
)
|
Transactions with others:
|
|
|
|
|
|
|
|||
Dividends to China Petroleum Corporation (j)
|
|
(7,000
|
)
|
|
(12,360
|
)
|
|
(11,400
|
)
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Balances due from Golar and its affiliates (e)
|
|
4,138
|
|
|
21,908
|
|
Methane Princess
Lease security deposit movements (k)
|
|
3,487
|
|
|
2,006
|
|
Deposits paid to Golar (g)
|
|
177,247
|
|
|
107,247
|
|
|
|
184,872
|
|
|
131,161
|
|
•
|
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.
|
(in thousands of $)
|
|
2017
|
|
2016
|
||
Carrying value of vessels and equipment secured against long-term loans and capital leases
|
|
1,555,092
|
|
|
1,622,416
|
|
|
2017
|
|
2016
|
|
Risk free interest rate
|
1.5
|
%
|
1.5
|
%
|
Expected volatility of common units
(1)
|
44.8
|
%
|
44.8
|
%
|
Expected dividend yield
(2)
|
0.0
|
%
|
0.0
|
%
|
Expected life of options (in years)
|
5.0 years
|
|
5.0 years
|
|
(in thousands of $, except per unit data)
|
Units
(in '000s)
|
|
|
Weighted average exercise price
|
|
|
Weighted average remaining contractual term
(years)
|
|
Options outstanding at December 31, 2016
|
75
|
|
|
$
|
20.55
|
|
|
4.9
|
Granted during the year
|
24
|
|
|
20.55
|
|
|
|
|
Options outstanding at December 31, 2017
|
99
|
|
|
$
|
18.24
|
|
|
3.9
|
•
|
Common units
. Common units represent limited partner interests in us. 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 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.
Subordinated units represented limited partner interests in us. Subordinated units had limited voting rights and most notably were excluded from voting in the election of the elected directors. During the subordination period, the common units had preferential distribution rights to the subordinated units. The subordination period ended on June 30, 2016, on which date all our subordinated units, which were
100%
held by Golar, converted to common units.
|
•
|
General partner 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, subject to the rights of the holders of Series A Preferred Units in certain instances, the General Partner in its sole discretion appoints
three
of the
seven
members of the Board.
|
•
|
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 (see note 28). Pursuant to the Partnership Agreement, the IDRs are transferable without unitholder approval.
|
•
|
Series A Preferred Units
. The Series A Preferred Units represent perpetual equity interests in us and, unlike our indebtedness, will not give rise to a claim for payment of a principal amount at a particular date. Series A Preferred Units have the voting rights described below under “Series A Preferred Units”. The Series A Preferred Units have preferential distribution rights to our common units and rank junior to all of our indebtedness as set forth below.
|
(in units)
|
|
Preferred Units
|
|
Common Units
|
|
Subordinated Units
|
|
GP Units
|
||||
December 31, 2014
|
|
—
|
|
|
45,663,096
|
|
|
15,949,831
|
|
|
1,257,408
|
|
December 2015 common unit repurchase program
|
|
—
|
|
|
(496,000
|
)
|
|
—
|
|
|
—
|
|
December 31, 2015
|
|
—
|
|
|
45,167,096
|
|
|
15,949,831
|
|
|
1,257,408
|
|
January 2016 common unit repurchase program
|
|
—
|
|
|
(38,000
|
)
|
|
—
|
|
|
—
|
|
June 2016 conversion of subordinated units
|
|
—
|
|
|
15,949,831
|
|
|
(15,949,831
|
)
|
|
—
|
|
October 2016 IDR reset
|
|
—
|
|
|
2,994,364
|
|
|
—
|
|
|
61,109
|
|
December 31, 2016
|
|
—
|
|
|
64,073,291
|
|
|
—
|
|
|
1,318,517
|
|
February 2017 common unit offering
|
|
—
|
|
|
5,175,000
|
|
|
—
|
|
|
94,714
|
|
October 2017 preferred units offering
|
|
5,520,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
November 2017 earn-out units conversion (1st tranche)
|
|
—
|
|
|
374,295
|
|
|
|
|
7,639
|
|
|
During 2017 common unit continuous offering program
|
|
—
|
|
|
145,675
|
|
|
—
|
|
|
2,973
|
|
December 31, 2017
|
|
5,520,000
|
|
|
69,768,261
|
|
|
—
|
|
|
1,423,843
|
|
Date
|
|
Number of Units Issued
|
|
Type of units
|
|
Offering Price
|
|
|
Net Proceeds (in thousands of $)
|
|
Golar’s Ownership after the Offering
(2)
|
|
Use of Proceeds
|
|||||
February 2017
|
|
5,175,000
|
|
|
Common
|
|
$
|
22.67
|
|
|
|
118,774
|
|
|
31.51
|
%
|
|
General partnership purposes and
a portion of the deposit for the Hilli Acquisition
|
October 2017
|
|
5,520,000
|
|
|
Preferred
|
|
$
|
25.00
|
|
|
|
132,991
|
|
|
31.51
|
%
|
|
General partnership purposes
|
December 2017
|
|
145,675
|
|
|
Common
(3)
|
|
$
|
22.79
|
|
|
|
3,275
|
|
|
31.82
|
%
|
|
General partnership purposes
|
•
|
senior to our common units and to each other class or series of limited partner interests or other equity securities established after the original issue date of the Series A Preferred Units that is not expressly made senior to or on parity with the Series A Preferred Units as to the payment of distributions and amounts payable upon liquidation, dissolution or winding up, whether voluntary or involuntary (“Junior Securities”);
|
•
|
pari passu with any class or series of limited partner interests or other equity securities established after the original issue date of the Series A Preferred Units with terms expressly providing that such class or series ranks on a parity with the Series A Preferred Units as to the payment of distributions and amounts payable upon liquidation, dissolution or winding up, whether voluntary or involuntary (“Parity Securities”);
|
•
|
junior to all of our indebtedness and other liabilities with respect to assets available to satisfy claims against us; and
|
•
|
junior to each other class or series of limited partner interests or other equity securities expressly made senior to the Series A Preferred Units as to the payment of distributions and amounts payable upon liquidation, dissolution or winding up, whether voluntary or involuntary (“Senior Securities”). The Series A Preferred Units have no conversion or exchange rights and are not subject to any preemptive rights.
|
(in thousands of $ except unit and per unit data)
|
|
2017
|
|
2016
|
|
2015
|
||||||
Common unitholders’ interest in net income
|
|
124,656
|
|
|
139,948
|
|
|
106,476
|
|
|||
Less: distributions paid
(1)
|
|
(160,069
|
)
|
|
(151,694
|
)
|
|
(103,241
|
)
|
|||
(Over) / under distributed earnings
|
|
(35,413
|
)
|
|
(11,746
|
)
|
|
3,235
|
|
|||
|
|
|
|
|
|
|
||||||
Basic:
|
|
|
|
|
|
|
|
|
|
|||
Weighted average common units outstanding (in thousands)
|
|
68,671
|
|
|
53,745
|
|
|
45,654
|
|
|||
Diluted:
|
|
|
|
|
|
|
||||||
Weighted average common units outstanding (in thousands)
|
|
68,671
|
|
|
53,745
|
|
|
45,654
|
|
|||
Earn-out units
|
|
654
|
|
|
189
|
|
|
—
|
|
|||
Common unit and common unit equivalents
|
|
69,325
|
|
|
53,934
|
|
|
45,654
|
|
|||
Earnings per unit - Common unitholders
:
|
|
|
|
|
|
|
|
|
|
|||
Basic
|
|
$
|
1.82
|
|
|
$
|
2.44
|
|
|
$
|
2.38
|
|
Diluted
|
|
1.80
|
|
|
2.43
|
|
|
2.38
|
|
|||
|
|
|
|
|
|
|
||||||
Cash distributions declared and paid in the period per common unit
(2)
|
|
2.31
|
|
|
2.31
|
|
|
2.30
|
|
|||
Subsequent event: Cash distributions declared and paid per common unit relating to the period
(3)
|
|
0.58
|
|
|
0.58
|
|
|
0.58
|
|
|
|
Marginal Percentage Interest in Distributions
|
|||||||
|
Quarterly Distribution Target Amount (per unit)
|
Common Unitholders
|
General Partner
|
Holders of IDRs
|
|||||
Minimum Quarterly Distribution
|
$
|
0.5775
|
|
98
|
%
|
2
|
%
|
—
|
|
First Target Distribution
|
up to $0.6641
|
|
98
|
%
|
2
|
%
|
—
|
|
|
Second Target Distribution
|
above $0.6641 up to $0.7219
|
|
85
|
%
|
2
|
%
|
13
|
%
|
|
Third Target Distribution
|
above $0.7219 up to $0.8663
|
|
75
|
%
|
2
|
%
|
23
|
%
|
|
Thereafter
|
above $0.8663
|
|
50
|
%
|
2
|
%
|
48
|
%
|
(1)
|
Golar LNG Partners LP
of S.E. Pearman Building, 2
nd
Floor, 9 Par-La-Ville Road, Hamilton, HM 11, Bermuda (“
GOLAR LP”
) ; and
|
(2)
|
Golar Management (Bermuda) Limited
of S.E. Pearman Building, 2
nd
Floor, 9 Par-La-Ville Road, Hamilton, HM 11, Bermuda
(“GOLAR BERMUDA”).
|
(A)
|
GOLAR LP is a limited partnership with Permit to carry on business as defined in the Permit and whose shares are listed on NASDAQ.
|
(B)
|
GOLAR BERMUDA is a wholly owned subsidiary of Golar LNG Limited and has agreed to provide corporate secretarial and other administrative services to GOLAR LP, an affiliate company.
|
(C)
|
GOLAR LP has requested that GOLAR BERMUDA provides it with various administrative services.
|
(D)
|
GOLAR BERMUDA has, on the terms set out herein, accepted such request.
|
1.
|
Services
|
1.1
|
With effect from 1 January 2017, GOLAR BERMUDA hereby agrees to provide the following services (the “
Services
”) to GOLAR LP:
|
(a)
|
acting as GOLAR LP’s registered office in Bermuda;
|
(b)
|
providing the services of one of its employees as GOLAR LP’s company secretary; and
|
(c)
|
providing secretarial services in addition to the above which shall include, but not be limited to:
|
2.
|
Obligations
|
2.1
|
All acts that GOLAR LP requires to be carried out by GOLAR BERMUDA or any individual or company designated by GOLAR BERMUDA as director, officer, signatory, representative and/or resident representative (the “
Designees
”) to perform the Services will comply with all applicable laws.
|
2.2
|
All statements and documents that GOLAR BERMUDA or the Designees may require GOLAR LNG to sign will, to the best of GOLAR BERMUDA’s knowledge and belief, be true and accurate.
|
2.3
|
GOLAR BERMUDA and the Designees may, at any time, do or refrain from doing any act if they shall, in their absolute discretion, consider it proper to do so in accordance with their duties, or if they consider it proper to do so in order to put themselves and/or GOLAR LNG in compliance with any relevant laws, guidelines, regulations, orders, decrees or similar requirements.
|
2.4
|
GOLAR LNG will keep or cause to be kept proper financial records in accordance with the requirements of the law and all government fees required to be paid will be duly paid on or before their due date and all such information as is required to enable GOLAR BERMUDA to fulfil its obligations will be made available to GOLAR BERMUDA by GOLAR LP.
|
3.
|
Authority
|
3.1
|
GOLAR BERMUDA and the Designees are expressly authorised to act on instructions or advice from GOLAR LP or any person they believe to be duly authorised to give instructions or advice on behalf of GOLAR BERMUDA, in all matters. Such instructions or advice may be communicated orally or in writing and with or without authentication.
|
4.
|
Fees
|
4.1
|
In consideration of GOLAR BERMUDA’S agreement to provide the Services, and in consideration of the acceptance by the Designees of such designations as have been made hereunder, GOLAR LP agree to pay to GOLAR BERMUDA an annual fee of USD80,000, payable semi-annually in arrears at the receipt of an invoice.
|
5.
|
Termination
|
6.
|
Miscellaneous
|
6.1
|
The provisions herein shall inure for the benefit of GOLAR BERMUDA and each of the Designees and his or her successors and assigns, as if they were parties hereto and such rights and benefits are held by GOLAR BERMUDA in trust for the Designees.
|
6.2
|
This Agreement may consist of several documents in like form each executed by one or more signatory, which documents shall together constitute one and the same agreement.
|
Golar LNG Partners LP
|
Golar Management (Bermuda) Limited
|
Private & Confidential
|
|
Execution Version
|
1
Interpretation
|
1
|
2
Guarantee
|
1
|
3
Indemnity
|
2
|
4
Liability Unconditional
|
2
|
5
Continuity and Discharge of the Guarantee
|
3
|
6
Representations and Warranties
|
4
|
7
Undertakings and Covenants
|
5
|
8
Payment under the Guarantee
|
6
|
9
Interest
|
7
|
10
Assignment
|
7
|
11
Notices
|
7
|
12
No Waiver and Provisions Severable
|
7
|
13
Rights of Third Parties
|
8
|
14
Counterparts
|
8
|
15
Governing Law and enforcement
|
8
|
(1)
|
Golar LNG Partners LP
whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands, MH96960 in its capacity as "
Guarantor
"; and
|
(2)
|
Sea 24 Leasing Co. Limited
whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 in its capacity as "
Owner
" and "
Buyer
”.
|
(A)
|
Golar LNG NB13 Corporation in each of its separate capacities as Seller and Bareboat Charterer, Golar LNG Partners LP in its capacity as Guarantor and (2) Sea 24 Leasing Co. Limited in each of its separate capacities as Buyer and Owner have entered into a Common Terms Agreement dated
19 November
2015 setting out certain defined terms in respect of the Project.
|
(B)
|
Golar LNG NB13 Corporation as Seller and as buyer have entered into the MOA for the purchase and sale of the Vessel.
|
(C)
|
Golar LNG NB13 Corporation as Bareboat Charterer and Sea 24 Leasing Co. Limited as Owner have entered into the Bareboat Charter in respect of the Vessel.
|
(D)
|
Golar LNG Partners LP is the ultimate holding company of Golar LNG NB13 Corporation.
|
(E)
|
The Guarantor has agreed to guarantee to the Owner the due and proper performance by Golar LNG NB13 Corporation of its duties and obligations arising under or in connection with the MOA as Seller, and the Bareboat Charter as Bareboat Charterer upon the terms of this Guarantee.
|
1.1
|
Terms and conditions defined in the Common Terms Agreement (including definitions defined therein by reference to another document) shall have the same meaning when used in this Guarantee, the MOA and the Bareboat Charter including the Recitals hereto unless otherwise defined herein.
|
2.1
|
In consideration of the Owner agreeing to purchase the Vessel pursuant to the MOA and to charter the Vessel pursuant to the Bareboat Charter, the Guarantor hereby guarantees to the Owner the due and proper performance by Golar LNG NB13 Corporation of all of Golar LNG NB13 Corporation's duties and obligations arising under or in connection with the MOA and the Bareboat Charter, and the Guarantor hereby absolutely, irrevocably and unconditionally undertakes as primary obligor and not as mere surety to pay to the Owner, within five (5) Business Days of the
|
2.2
|
As a separate and independent stipulation, the Guarantor agrees that if any purported obligation or liability of Golar LNG NB13 Corporation which would have been the subject of this Guarantee had it been valid and enforceable is not or ceases to be valid or enforceable against Golar LNG NB13 Corporation on any ground whatsoever (including, without limitation, any irregular exercise or absence of any corporate power or lack of authority of, or breach of duty by, any person purporting to act on behalf of Golar LNG NB13 Corporation or any legal or other limitation, whether under the Limitation Act 1980 (United Kingdom) or otherwise or Incapacity or any change in the constitution of Golar LNG NB13 Corporation) the Guarantor shall nevertheless be liable to the Owner in respect of that purported obligation or liability as if the same were fully valid and enforceable and the Guarantor was the principal debtor in respect thereof.
|
2.3
|
The Guarantor shall be liable for and shall within five (5) Business Days of the Owner’s demand indemnify and save harmless the Owner from and against any and all losses, damages, expenses, liabilities, claims, costs or proceedings which the Owner suffers or incurs by reason of any failure of the Guarantor to comply with Clause 2.1 or 2.2, including costs, losses and/or legal and other expenses which are imposed on or incurred by the Owner in seeking to enforce and enforcing this Guarantee and in seeking to enforce and enforcing any judgment or order obtained in respect of this Guarantee.
|
2.4
|
Subject to the provisions of clauses 3, 8 and 9 the liability of the Guarantor under this Guarantee in respect of each obligation or liability shall be limited to the extent that Golar LNG NB13 Corporation would have been liable under or in connection with the MOA or, as the case may be the Bareboat Charter for such obligation or liability.
|
2.5
|
The Guarantor waives any right it may have of first requiring Golar LNG NB13 Corporation (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person prior to a claim against the Guarantor under this clause 2. This waiver applies irrespective of any law or provision of the Finance Documents to the contrary.
|
4.1
|
The Guarantor acknowledges and agrees that the liability of the Guarantor under this Guarantee shall not be impaired, reduced, discharged or otherwise affected by reason of any of the following:
|
(a)
|
any variation, amendment, alteration or supplement to the Bareboat Charter or to the extent, nature or method of performance of the duties and/or obligations referred to in the MOA or the Bareboat Charter, in each case, however fundamental such variation, amendment, alteration and/or supplement is and/or any novation of the MOA or the Bareboat Charter;
|
(b)
|
any allowance of time, waiver, forbearance, delay, forgiveness, indulgence, compromise, delay by or on the part of the Owner in asserting any of its rights against Golar LNG NB13 Corporation or other dealing under or in connection with the MOA or the Bareboat Charter or in respect of any right or remedy arising under the MOA or the Bareboat Charter;
|
(c)
|
any settlement or arrangement made between the Owner and Golar LNG NB13
|
(d)
|
any composition, discharge, release, concession, waiver or other variation of liability entered into with, or granted to, Golar LNG NB13 Corporation;
|
(e)
|
the Bareboat Charter or any provision thereof being or becoming illegal, invalid, void, voidable or unenforceable;
|
(f)
|
termination of the Bareboat Charter or Golar LNG NB13 Corporation's employment under the Bareboat Charter;
|
(g)
|
any disability, Incapacity, lack of power, authority or legal personality of, dissolution or change in the members of, status of, legal limitation, change in ownership or change in status of Golar LNG NB13 Corporation;
|
(h)
|
an Insolvency Event;
|
(i)
|
a change in the constitution of Golar LNG NB13 Corporation;
|
(j)
|
the Owner taking, holding, varying, realising or not enforcing any other security for the liabilities of Golar LNG NB13 Corporation under the MOA or the Bareboat Charter or any document or security;
|
(k)
|
any funder exercising any rights it may have to assume any rights and/or obligations of the Owner under the MOA or Bareboat Charter pursuant to any collateral warranty or any third party rights vested in it pursuant to the terms of the MOA or the Bareboat Charter or any document or security;
|
(l)
|
an amalgamation, merger or consolidation of the Guarantor or Golar LNG NB13 Corporation; or
|
(m)
|
any other act, omission or default which in the absence of this provision would or might have operated to discharge, reduce, exonerate or otherwise affect the liability of the Guarantor under the terms of this Guarantee,
|
(a)
|
shall not be revocable by the Guarantor;
|
(b)
|
shall be a continuing guarantee and accordingly shall apply in relation to all of the duties, obligations, provisions, warranties or indemnities of Golar LNG NB13 Corporation under and arising out of the MOA or the Bareboat Charter and remain in full force and effect until all the said duties, obligations, provisions, warranties or indemnities shall have been irrevocably and unconditionally carried out, completed and discharged in accordance with the MOA or the Bareboat Charter;
|
(c)
|
shall be additional to and not in substitution for any rights or remedies that the Owner may have against Golar LNG NB13 Corporation under the Bareboat Charter or at law;
|
(d)
|
shall be additional to and shall not be in any way prejudiced by any other guarantee or security from time to time held by the Owner; and
|
(e)
|
shall remain in full force and effect as long as Golar LNG NB13 Corporation remains under any actual or contingent liability under or in connection with the terms of the MOA or the Bareboat Charter.
|
5.2
|
The Guarantor agrees that, notwithstanding clause 2.1, the Owner shall not be obliged, before enforcing any of its rights or remedies under this Guarantee, to commence proceedings or take any other action against or in respect of Golar LNG NB13 Corporation or any other person or enforce any other guarantee or security from time to time held by the Owner in respect of the duties and/or obligations of Golar LNG NB13 Corporation under or in connection with the MOA or the Bareboat Charter.
|
5.3
|
The Guarantor agrees that, as long as this Guarantee remains in force and effect and until all obligations of Golar LNG NB13 Corporation and the Guarantor respectively under or in connection with the MOA or the Bareboat Charter and this Guarantee have been irrevocably and unconditionally discharged in full, it shall not:
|
(a)
|
take any security from Golar LNG NB13 Corporation in connection with this Guarantee (and, if taken, any such security shall be held by the Guarantor as security for its liability to the Owner under this Guarantee);
|
(b)
|
take any step to enforce any right or claim against Golar LNG NB13 Corporation in respect of any payment made under or liability arising from or in connection with this Guarantee or claim or prove in competition with the Owner against Golar LNG NB13 Corporation or demand or accept repayment of any monies from Golar LNG NB13 Corporation or claim any right of contribution, set-off or indemnity against Golar LNG NB13 Corporation;
|
(c)
|
take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Owner under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with the Finance Documents by the Owner; or
|
(d)
|
be subrogated to any right or security of the Owner,
|
(e)
|
and any sums received by the Guarantor or the amount of any set-off exercised by the Guarantor in breach of this clause 5.3 shall be held by the Guarantor in trust for and shall be promptly paid to the Owner.
|
(a)
|
it is duly incorporated under the laws of the country of its incorporation, possesses the capacity to sue and be sued in its own name and has the power to carry on its business and to own its property and other assets;
|
(b)
|
it has the power to execute, deliver and perform its obligations under this Guarantee and all necessary corporate, shareholder and other action and consents have been taken or, as the case may be, received to authorise the execution, delivery and performance of this Guarantee;
|
(c)
|
its obligations under this Guarantee constitute its legal, valid and binding obligations and are in full force and effect and rank at least pari passu with all other of its present and future unsecured and unsubordinated indebtedness (with the exception of any obligations which are mandatorily preferred by law and not by contract);
|
(d)
|
no authorisations, approvals or Consents of any governmental or regulatory authority or agency or any other person and no filings or registrations with any governmental authority or agency are necessary for the execution, delivery or performance by the Guarantor of this Guarantee for its enforceability of validity (or alternatively, in relation to filings and registrations, an undertaking to effect any registrations, filings in relation to this Guarantee as soon as reasonably practicable and do all such things as the Owner may reasonably require in order to facilitate the enforcement of the Guarantee or exercise any of the rights held by the Owner under this Guarantee);
|
(e)
|
the creation of this Guarantee does not contravene the constitutional documents of the Guarantor;
|
(f)
|
there is no pending action, suit or proceeding at law or in equity by or before a court or arbitral tribunal, or to the best of its knowledge, threatened against it which would reasonably be expected to have a material adverse effect on the Guarantor's liability to perform its obligations under this Guarantee; and
|
(g)
|
the creation of this Guarantee and the performance and observance of the obligations hereunder does not:
|
(i)
|
contravene any existing applicable law, statute, rule, regulation or any judgment to which the Guarantor is subject;
|
(ii)
|
conflict with or result in any breach of the terms or constitute a default under any agreement or other instrument to which the Guarantor is a party or subject; and/or
|
(iii)
|
result in the creation of or imposition of or oblige the Guarantor or any of its subsidiaries to create any charge or other encumbrance or any of its subsidiaries, assets, rights or revenues.
|
(a)
|
Free Liquid Assets
|
(b)
|
Net Debt to EBITDA
|
(c)
|
Consolidated Tangible Net Worth
|
(a)
|
Subject to clause 8.3 below, all payments for any sums payable by the Guarantor under this Guarantee shall be paid in Dollars.
|
(b)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the cost, expenses or Taxes are incurred.
|
(c)
|
Any amount expressed to be payable in a currency other than Dollars shall be paid in that other currency.
|
(a)
|
making or filing a claim or proof against the Guarantor;
|
(b)
|
obtaining an order or judgment in any court or other tribunal; or
|
(c)
|
enforcing any order or judgment given or made in relation to this Guarantee,
|
10.1
|
The Guarantor may not assign or transfer all or part of its rights or obligations under this Guarantee (“
Transfer
”), unless the following conditions are met:
|
(a)
|
the Transfer is to Golar MLP or a wholly owned subsidiary of Golar MLP which is guaranteed by Golar MLP on terms acceptable to the Owner;
|
(b)
|
the Transfer will not adversely affect the Owner’s rights and interest under the MOA or the Bareboat Charter and will be on terms acceptable to the Owner (acting reasonably);
|
(c)
|
the Owner has been given prior written notice of and to of such Transfer;
|
(d)
|
Golar MLP or such wholly owned subsidiary which is guaranteed by Golar MLP on terms acceptable to the Owner executes a guarantee and indemnity in favour of the Owner on terms and conditions acceptable to the Owner acting reasonably in respect of the Transfer representing 100% of its equity interest in Golar LNG NB13 Corporation as is being transferred from the Guarantor to Golar MLP or such wholly owned subsidiary;
|
(e)
|
the Owner is satisfied (acting reasonably) that the Golar Tundra Time Charter Documents remain valid and enforceable; and
|
(f)
|
no further change to the ownership of Golar LNG NB13 Corporation is or will be permitted during the remaining Charter Period (except as permitted by the terms of the Finance Documents) without the prior written consent of the Owner.
|
10.2
|
the Owner may assign or transfer, with the Guarantor's prior consent (such consent not to be unreasonably withheld), any of its rights or obligations under this Guarantee to the Mortgagee or any person to whom the Owner assigns its rights under the Bareboat Charter by giving the Guarantor not less than 7 days advance notice.
|
12.1
|
No failure or delay by the Owner in exercising any right or remedy shall operate as a waiver, nor shall any single or partial exercise or waiver of any right or remedy preclude its further exercise or the exercise of any other right or remedy.
|
12.2
|
Each of the provisions of this Guarantee is severable and distinct from the others, and if for any reason any such provision or part of a provision is or becomes ineffective, inoperable, invalid or unenforceable it shall be severed and deemed to be deleted from this Guarantee, and in such event the remaining provisions of this Guarantee shall continue to have full force and effect.
|
15.1
|
This Guarantee and any non-contractual obligations connected with it are governed by and shall be construed in accordance with English law.
|
15.2
|
The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Guarantee) (a Dispute).
|
15.3
|
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.
|
15.4
|
Clauses 15.2 and 15.3 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.
|
SIGNED, SEALED and DELIVERED
as a
DEED
for and on behalf of
GOLAR LNG PARTNERS LP
|
|
Address of witness:
|
Golar Management Ltd
|
|
|
/s/ Zhou Ling
|
|
Golar LNG Partners LP
Trust Company Complex
Ajeltake Road
Ajeltake Island
Majuro
the Marshall Islands
MH96960
|
Your ref:
|
Tundra
|
Our ref:
|
Tundra
|
|
Date:
|
17 October 2017
|
|
Strictly private and confidential
|
||
17 October 2017
|
1.
|
We refer to an agreement dated 27 April 2016, as supplemented and amended by a supplemental letter dated 21 July 2016, a second supplemental letter dated 22 May 2017 and a third supplemental letter dated 29 June 2017 (the
Third Supplemental Letter
) (the
Facilities Agreement
) made between (1) Golar Partners Operating LLC as Borrower (the
Borrower
), (2) Golar LNG Partners L.P. as Parent (the
Parent
), (3) the entities listed in Schedule 1 thereto as Guarantors, (4) Citigroup Global Markets Limited, DNB (UK) Limited, Danske Bank A/S and Nordea Bank AB (publ), filial i Norge as Mandated Lead Arrangers, (5) the financial institutions listed in Schedule 1 thereto as Lenders (the
Lenders
), (6) the financial institutions listed in Schedule 1 thereto as Hedging Providers, (7) Citigroup Global Markets Limited as Global Co-ordinator, (8) Citigroup Global Markets Limited, DNB (UK) Limited, Danske Bank A/S and Nordea Bank AB (publ), filial i Norge as Bookrunners, (9) Nordea Bank AB (publ), filial i Norge as Agent (the
Agent
), (10) Nordea Bank AB (publ), filial i Norge as Security Agent and (11) Citigroup Global Markets Limited as Hedging Co-ordinator, pursuant to which the Lenders agreed to make available to the Borrower a senior secured amortising term loan and revolving credit facility of up to $800,000,000.
|
2.
|
We refer also to the consent request letter dated 30 October 2017 (the
Consent Request Letter
) requesting, inter alia, the approval of the Agent (a) on behalf of the Lenders in accordance with clause 22.7 of the Facilities Agreement to enter into a time charter in respect of Ship A (being m.v. “Golar Freeze”) (the
NFE Time Charter
) with NFE Transport Partners LLC (
NFE
) in the form previously provided to the Lenders, (b) to suspend the requirements set out in clause 3 of the Third Supplemental Letter with effect from the date the Agent is satisfied that the conditions set out in clause 4 have been satisfied and (c) to release the Cash Collateral (as defined in the Third Supplemental Letter) on or about such date.
|
3.
|
In order to incentivise the Lenders to provide the consents requested in the Consent Request Letter and in paragraph 2 of this Letter, you have advised that you are willing to undertake to put in place the following arrangements with respect to the provision of additional security:
|
(a)
|
the Borrower shall procure that by no later than 31 October 2018 the Charterer Parent Company Guarantee and the Charterer Supplemental Parent Company Guarantee (each as described in clause 1.1 of the NFE Charter) are issued (the
NFE Guarantees
) and either (i) the NFE Time Charter shall have been novated by the Borrower in favour of the Owner or the Bareboat Charterer in respect of Ship A which shall have issued notices of assignment relative to the NFE Time Charter and the NFE Guarantees pursuant to the Assignment Deed in respect of Ship A dated 23 May 2016, which notices of assignment shall have been duly acknowledged by NFE and the Charterer’s Guarantor and the Charterer’s Supplemental Guarantor (each as described in clause 1.1 of the NFE Charter) substantially in the form required by such Assignment Deed or (ii) if the NFE Charter has not been so novated, the Borrower shall have executed in favour of the Security Agent a deed of assignment in substantially the same form as the Assignment Deed in respect of Ship A dated 23 May 2016 and notices of assignment relative to the NFE Time Charter and the NFE Guarantees which notices shall have been duly acknowledged by NFE and the Charterer’s Guarantor and the Charterer’s Supplemental Guarantor substantially in the form required by such deed of assignment;
|
(b)
|
the Borrower shall procure that if delivery and acceptance of Ship A under the NFE Time Charter 31 March 2019 and receipt of the first payment of charterhire thereunder has not taken place within 35 days of 31 March 2019, the provisions of paragraph 3(a) of the Third Supplemental Letter shall immediately be reinstated and the Borrower shall on 31 March 2019 or May 5 2019 deposit in the Blocked Account (as defined in the Third Supplemental Letter) such amounts as would have been required to be paid to the Blocked Account by such date in accordance with paragraph 3(a) of the Third Supplemental Letter taking into account any releases from the Blocked Account which would have been permitted by such date (such net amounts deposited in the Blocked Account shall then be deemed to be “Cash Collateral” for the purposes of the Third Supplemental Letter), which Cash Collateral may thereafter only be released in the amounts and on the Repayment Dates specified in clause 3 of the Third Supplemental Letter or as provided for under paragraph 3(c) of the Third Supplemental Letter unless all of the Lenders agree otherwise or until Ship A has been accepted under the NFE Time Charter and the first payment has been received which must be by no later than 30 October 2019;
|
(c)
|
the Borrower shall procure that if at any time prior to the Repayment Date falling in February 2020 the NFE Time Charter is cancelled or rescinded or (except as a result of it being a Total Loss) frustrated or Ship A is withdrawn from service under the NFE Time Charter before the time the NFE Time Charter was scheduled to expire and is not returned to service within 30 days, the provisions of paragraph 3 of the Third Supplemental Letter shall immediately be reinstated and the Borrower shall, within ten days of the date upon which the Borrower became aware of the cancellation or rescission or frustration (as applicable) of the NFE Time Charter or that Ship A has been withdrawn from service under the NFE Time Charter and has not been returned to service within 30 days (the Termination Date), deposit in the Blocked Account (as defined in the Third Supplemental Letter) such amounts as would have been required to be paid to the Blocked Account by the Termination Date in accordance with paragraph 3(a) of the Third Supplemental Letter taking into account any releases from the Blocked Account which would have been permitted by the Termination Date (such net amounts deposited in the Blocked Account shall then be deemed to be "Cash Collateral" for the purposes of the Third Supplemental Letter), which Cash Collateral may thereafter only be released in the amounts and on the Repayment Dates specified in clause 3 of the Third Supplemental Letter or as provided for under paragraph 3(c) of the Third Supplemental Letter unless all of the Lenders and the Borrower agree otherwise;
|
(d)
|
the Borrower shall procure that any letter of credit or performance guarantee issued in accordance with clauses 38.4 and 39.3 of the NFE Time Charter shall be capable of being assigned in favour of the Security Agent and shall otherwise be in a form acceptable to the Majority Lenders (such acceptance not to be unreasonably withheld);
|
(e)
|
the Borrower shall not agree with NFE a relocation of Ship A pursuant to clause 9 of the NFE Time Charter without the approval of the Majority Lenders (such approval not to be unreasonably withheld); and
|
(f)
|
the Borrower shall, and will procure that whichever of the Owner and the Bareboat Charterer of Ship A receives a novation of the NFE Time Charter shall, comply in all respects with clauses 26.1 and 26.2 of the Facilities Agreement mutatis mutandis as if such provisions were written in full herein on the basis that the NFE Time Charter and the NFE Guarantees are each deemed to be Charter Documents in respect of Ship A.
|
4.
|
In consideration of the payment of US$10 by the Borrower to the Agent and other such consideration, the receipt and sufficiency of which we hereby confirm, we Nordea Bank AB (publ), filial i Norge, in our capacity as Agent, hereby confirm that, subject to:
|
(a)
|
your countersignature of this letter by duly authorised signatories; and
|
(a)
|
delivery of such evidence of corporate authority of the Borrower as the Agent may reasonably require,
|
Name
|
Position with GML
|
Services to be provided to GLP
|
Brian Tienzo
|
•
Chief Executive & Chief Financial Officer for Golar LNG Partners
•
Senior Advisor – Group Financing
|
•
Chief Executive Officer
•
Chief Financial Officer
|
Oistein Dahl
|
Chief Operating Officer
|
•
Chief Operating Officer
|
Private & Confidential Execution Version
|
||
Dated 29 March 2018
|
||
PT GOLAR INDONESIA
with
PT BANK SUMITOMO MITSUI INDONESIA
as Mandated Lead Arranger, Lender and Hedging Bank
SUMITOMO MITSUI BANKING CORPORATION SINGAPORE BRANCH
as Facility Agent, Security Agent and Account Bank
sponsored by
GOLAR LNG PARTNERS LP
and
PT PESONA SENTRA UTAMA
guaranteed by
GOLAR LNG PARTNERS LP
|
||
|
SUPPLEMENTAL AGREEMENT
relating to a
Term Loan and Revolving Loan Facility of up to $175,000,000
in respect of the FSRU “NUSANTARA REGAS SATU”
|
|
NORTON ROSE FULBRIGHT
|
1
|
PT GOLAR INDONESIA
(the
Borrower
);
|
2
|
GOLAR LNG PARTNERS LP
and
PT PESONA SENTRA UTAMA
(as
Sponsors
);
|
3
|
GOLAR LNG (SINGAPORE) PTE LTD
and
PT PESONA SENTRA UTAMA
(as
Shareholders
);
|
4
|
GOLAR LNG PARTNERS LP
(as
Final Repayment Guarantor
);
|
5
|
GOLAR LNG LIMITED;
|
6
|
GOLAR MANAGEMENT LIMITED
;
|
7
|
GOLAR MANAGEMENT NORWAY AS (formerly known as Golar Wilhelmsen Management AS)
;
|
8
|
GOLAR LNG ENERGY LIMITED
;
|
9
|
PT BANK SUMITOMO MITSUI INDONESIA
(as
Mandated Lead Arranger, Lender
and
Hedging Bank
); and
|
10
|
SUMITOMO MITSUI BANKING CORPORATION
SINGAPORE BRANCH
(as
Facility Agent
,
Security Agent
and
Account Bank)
.
|
(A)
|
This Supplemental Agreement is supplemental to an agreement (
Principal Agreement
) dated 14 December 2012 and made between (1) the Borrower, (2) PT Bank Sumitomo Mitsui Indonesia, The Bank of Tokyo Mitsubishi UFJ, Ltd., Standard Chartered Bank and Oversea Chinese Banking Corporation Limited as ‘Mandated Lead Arrangers’, ‘Original Lenders’ and ‘Original Hedging Banks’, (3) Sumitomo Mitsui Banking Corporation as Co-ordination and Structuring Bank, (4) the Facility Agent, Security Agent and Account Bank, (5) the Sponsors and (6) Golar LNG Limited and the Final Repayment Guarantor as ‘Guarantors’, whereby the Original Lenders (as defined in the Principal Agreement) agreed to make available to the Borrower a facility of up to US$175,000,000 (consisting of a $155,00,000 term loan facility and a $20,000,000 revolving loan facility) upon the terms and subject to the conditions therein contained.
|
(B)
|
By a final repayment guarantee dated 14 December 2012, the Final Repayment Guarantor guaranteed payment of the Balloon payable by the Borrower under the Principal Agreement.
|
(C)
|
Each of The Bank of Tokyo-Mitsubishi UFJ, Ltd., Standard Chartered Bank and Oversea-Chinese Banking Corporation Limited have transferred their Commitments, together with all of their other rights and obligations, under the Principal Agreement to PT Bank Sumitomo Mitsui Indonesia (as remaining Lender) by way of transfer certificates dated 29 March
2018
(the
Transfer Certificates
).
|
(D)
|
As at the date of this Supplemental Agreement, the outstanding Loans of the Lender (as amortised over time under the Principal Agreement) are as set out in Schedule 1 (
Outstanding Loans
) to this Supplemental Agreement.
|
1
|
Interpretation
|
1.1
|
Definitions in Principal Agreement
|
1.2
|
Interpretation
|
(a)
|
References in the Principal Agreement to “
this Agreement
” shall, with effect from the Effective Date and unless the context otherwise requires, be references to the Principal Agreement as amended by this Supplemental Agreement and words such as “
herein
”, “
hereof
”, “
hereunder
”, “
hereafter
”, “
hereby
” and “
hereto
”, where they appear in the Principal Agreement, shall be construed accordingly.
|
(b)
|
This Supplemental Agreement is a Finance Document.
|
1.3
|
Incorporation of certain references
|
1.4
|
Third party rights
|
2
|
Amendments to the Principal Agreement
|
3
|
Representations and warranties
|
3.1
|
Each of the Golar Parties, where applicable, represents and warrants to each of the Lender, Hedging Bank, Account Bank, Facility Agent and the Security Agent that:
|
(a)
|
Representations and warranties in Principal Agreement
|
(b)
|
Corporate power
|
(c)
|
No conflict with other obligations
|
(d)
|
Consents obtained
|
(e)
|
No filings required
|
4
|
Fees and Expenses
|
4.1
|
Expenses
|
4.2
|
Stamp and other duties
|
5
|
Confirmations
|
5.1
|
Golar Parties’ Confirmations
|
(a)
|
notwithstanding the amendments made to the Principal Agreement by this Supplemental Agreement;
|
(i)
|
each of the Security Documents to which it is a party, and its obligations thereunder remain in full force and effect and continue to secure the Secured Obligations in favour of the Finance Parties;
|
(ii)
|
it shall procure that each of the Security Documents to which any Obligor (other than the Golar Parties) is a party and their respective obligations thereunder remain in full force and effect and continue to secure the Secured Obligations in favour of the Finance Parties; and
|
(b)
|
with effect from the Effective Date, references to “the Agreement” or the “Facility Agreement” in any of the Security Documents to which it is a party shall henceforth be a reference to the Principal Agreement as amended by this Supplemental Agreement and as from time to time hereafter amended.
|
5.2
|
Final Repayment Guarantor Confirmation
|
6
|
Effective Date
|
6.1
|
Conditions precedent documentation
|
(a)
|
in respect of each of the Golar Parties:
|
(i)
|
a copy, certified as a true copy by a director or the secretary of such company, of resolutions of the board of directors, board of commissioners or governors (or of a committee of the board of directors or governors) evidencing approval of the Supplemental Documents to which it is a party and authorising its appropriate officers to execute and deliver the Supplemental Documents to which it is a party and to give all notices and take all other action required under the Supplemental Documents to which it is a party;
|
(ii)
|
specimen signatures of the persons authorised in the resolutions of the board of directors referred to in paragraph (a)(i) if different from those delivered in relation to the Principal Agreement;
|
(iii)
|
a copy, certified as a true copy, and as being in full force and effect and not revoked or withdrawn, by a director or the secretary of such company, of any power of attorney issued by that company pursuant to the said resolutions;
|
(iv)
|
a certificate signed by a director or the secretary of such company, confirming that all Consents required to authorise, or required by such company in connection with the execution, delivery, validity, enforceability and admissibility in evidence of the Supplemental Documents to which it is a party and the performance by such company of its respective obligations under the Supplemental Documents to which it is a party have been obtained and are in full force and effect;
|
(b)
|
opinions from (i) Norton Rose Fulbright (Asia) LLP, special legal advisers to the Lenders in England, (ii) TNB & Partners in association with Norton Rose Fulbright Australia, special legal advisers to the Lenders in Indonesia, and (iii) Norton Rose Fulbright (Asia) LLP, special legal advisers to the Lenders in the Marshall Islands, each in a form approved by the Facility Agent;
|
(c)
|
the duly executed and dated Transfer Certificates;
|
(d)
|
the duly executed Supplemental Fee Letter, together with evidence acceptable to the Facility Agent that all fees and expenses due to the Finance Parties (including the fees of the Facility Agent’s legal counsel) have been or will, on the Effective Date, be paid in full;
|
(e)
|
the duly executed ISDA Amendment Agreement; and
|
(f)
|
such documentation and information as any Finance Party may reasonably request through the Agent to satisfy and “know your customer” or similar identification procedures under all laws and regulations applicable to that Finance Party.
|
6.2
|
Further Conditions Precedent
|
6.3
|
Conditions Subsequent
|
(a)
|
within 90 days from the date of this Supplemental Agreement, an original of the ISDA Amendment Agreement and the Supplemental Hedging Transaction executed in Bahasa;
|
(b)
|
within 30 days from the date of this Supplemental Agreement, evidence of the entry into the Supplemental Hedging Transaction by the Borrower in accordance with clause 30.1(a) (
Hedging
) of the Facility Agreement (as amended by this Supplemental Agreement); and
|
(c)
|
within 5 Business Days from the date of this Supplemental Agreement, opinions from (i) Norton Rose Fulbright (Asia) LLP, special legal advisers to the Lenders in Singapore, (ii) Appleby Global, special legal advisers to the Lenders in Bermuda, and (iii) Advokatfirmaet Wiersholm AS, special legal advisers to the Lenders in Norway, each in a form approved by the Facility Agent.
|
7
|
Miscellaneous
|
7.1
|
Further assurance
|
(a)
|
The Borrower shall take all such action as may be necessary for the purpose of the:
|
(i)
|
to the extent applicable, the reporting of the execution and the filing of this Supplemental Agreement
with the Bank of Indonesia the Ministry of Finance and the Team for the Co‑ordination of the Management of Offshore Commercial Loans; and
|
(ii)
|
the payment of nominal stamp tax in the amount of Rp6,000 on the Supplemental Documents to which the Borrower or PSU is a party.
|
(b)
|
The Supplemental Documents are executed in the English language.
The parties hereto confirm that they fully understand and agree to be bound by the terms and conditions of the
Supplemental
Documents notwithstanding that the
Supplemental
Documents are prepared and executed in English.
|
(c)
|
Each of the Golar Parties further agrees that: (i) the Bahasa Indonesia version of the Supplemental Documents, if executed, will be deemed to be effective from the date the English language version was executed; and (ii) in the event of inconsistency between the Bahasa Indonesia version and the English version, the English version shall prevail and the relevant Bahasa Indonesia text will be deemed to be amended to conform with and to make the relevant Indonesian text consistent with the relevant English text.
|
(d)
|
Each of the Golar Parties further agrees and undertakes not to (or allow or assist any other party to), in any manner or forum, challenge the validity of, or raise or file any objection to, any Supplemental Document or the transactions contemplated by any Supplemental Document on the basis of any failure to comply with Law 24 or its implementing regulations or other similar laws and regulations applicable in Indonesia.
|
7.2
|
Continuation of Principal Agreement
|
7.3
|
Counterparts
|
7.4
|
Partial invalidity
|
7.5
|
Notices
|
8
|
Governing Law and Enforcement
|
8.1
|
Governing law
|
8.2
|
Enforcement
|
(1)
|
PT GOLAR INDONESIA
(the
Borrower
);
|
(2)
|
GOLAR LNG PARTNERS LP
and
PT PESONA SENTRA UTAMA
(as
Sponsors
);
|
(3)
|
GOLAR LNG LIMITED
and
GOLAR LNG PARTNERS LP
(as
Guarantors
);
|
(4)
|
PT BANK SUMITOMO MITSUI INDONESIA
as mandated lead arranger (the
Mandated Lead Arranger
);
|
(5)
|
SUMITOMO MITSUI BANKING CORPORATION SINGAPORE BRANCH
as co-ordination and structuring bank (the
Co-ordination and Structuring Bank
);
|
(6)
|
THE FINANCIAL INSTITUTIONS
listed in Schedule 1 as lenders (the
Original Lenders
);
|
(7)
|
THE FINANCIAL INSTITUTIONS
listed in Schedule 1 as hedging banks (the
Original Hedging Banks
);
|
(8)
|
SUMITOMO MITSUI BANKING CORPORATION SINGAPORE BRANCH
as facility agent for the other Finance Parties (the
Facility Agent
);
|
(9)
|
SUMITOMO MITSUI BANKING CORPORATION SINGAPORE BRANCH
as security agent for the Finance Parties (the
Security Agent
); and
|
(10)
|
SUMITOMO MITSUI BANKING CORPORATION SINGAPORE BRANCH
as account bank (the
Account Bank
).
|
1
|
Definitions and interpretation
|
1.1
|
Definitions
|
(a)
|
the aggregate of:
|
(i)
|
all amounts received by the Borrower under the Charter and any other Project Agreement (including the Total Charter Rate) during each period and which have not been taken into account in a previous calculation of Available Cash Flow;
|
(ii)
|
all interest and other income (including Insurance Proceeds) received by the Borrower during such period in respect of the Project Accounts; and
|
(iii)
|
refunds, credits, rebates or similar accounts of Tax actually received during such period.
|
(b)
|
less the sum of:
|
(i)
|
the O&M Hire and the Borrower Expenses
payable during such period; and
|
(ii)
|
the total amount of Tax actually paid in that period.
|
(a)
|
the aggregate amount of its participations in any outstanding Loans under that Facility; and
|
(b)
|
in relation to any proposed Utilisation, the aggregate amount of its participations in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date,
|
(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 on 16 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”
other than, in each such case, the agreements, rules, guidance and standards set out in “Basel III: Finalising the post-crisis reforms” published by the Basel Committee on Banking Supervision in December 2017, as amended, supplemented or restated
.
|
(a)
|
the Vessel Rights;
|
(b)
|
the Guarantee Rights;
|
(c)
|
the Charter Documents (other than the Charter LOU POAs);
|
(d)
|
the O&M Contract;
|
(e)
|
the Earnings;
|
(f)
|
the Insurances;
|
(g)
|
any Requisition Compensation; and
|
(h)
|
each Hedging Contract.
|
(a)
|
money borrowed or raised and debit balances at banks;
|
(b)
|
any bond, note, loan stock, debenture or similar debt instrument;
|
(c)
|
acceptance or documentary credit facilities;
|
(d)
|
receivables sold or discounted (otherwise than on a non-recourse basis);
|
(e)
|
deferred payments for assets or services acquired (other than assets or services
acquired on normal commercial terms in the ordinary course of business where payment
is deferred by no more than one hundred and eighty (180) days);
|
(f)
|
Capitalised Lease Obligations;
|
(g)
|
any other transaction (including without limitation forward sale or purchase agreements)
having the commercial effect of a borrowing or raising of money;
|
(h)
|
guarantees in respect of indebtedness of any person falling within any of (a) to (g)
above; and
|
(i)
|
preference share capital in any member of the Final Repayment Guarantor Group or the Pre‑Completion Guarantor Group (as applicable) which is or may be redeemable prior to the Final Maturity Date and/or the full
and final discharge of all indebtedness and liabilities of the Borrower under this Agreement.
|
(a)
|
the Borrower Assigned Property;
|
(b)
|
all of the Borrower’s right, title, interest and benefit in and to the Vessel and its Mooring;
|
(c)
|
the Project Accounts; and
|
(d)
|
all proceeds of realisation or enforcement of any Security Interest in or over any of the foregoing or the exercise of all and any rights, powers and remedies in relation to any Security Interest over the foregoing.
|
(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)
|
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 Government of Norway or the United States of America; and
|
(c)
|
any other instrument approved by the Security Agent, with the authorisation of the Majority Lenders.
|
(a)
|
during the period from the earlier of (a) the Utilisation Date of the Final Advance and (b) the Guarantee Release Date to the date falling nine (9) months after the date of this Agreement (
Relevant Date
) a sum equal to or greater than three (3) months’ Debt Service obligations of the Borrower under this Agreement at such time; and
|
(b)
|
following the Relevant Date, a sum equal to six (6) months’ Debt Service obligations of the Borrower under this Agreement at such time.
|
(a)
|
which has failed to make its participation in a Loan available or has notified the Facility 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
); or
|
(b)
|
which has otherwise rescinded or repudiated a Finance Document;
|
(i)
|
its failure to pay is caused by:
|
(A)
|
administrative or technical error; or
|
(B)
|
a Disruption Event; and
|
(ii)
|
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(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:
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
(ii)
|
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
(a)
|
the occurrence of a Default or an Event of Default which is continuing
;
|
(b)
|
in relation to the application of proceeds on the First Repayment Date only, there is in the reasonable opinion of the Facility Agent a material reduction in the Total Charter Rate in the 90 day period immediately prior to such date;
|
(c)
|
Final Acceptance having not occurred;
|
(d)
|
the Debt Service Coverage Ratio for the previous twelve (12) months (or, if the period is less than twelve (12) months from Final Acceptance, for that shorter period) being less than 1.15:1;
|
(e)
|
the Borrower not being in compliance with clause 28.7 (
Debt Service Reserve Account
) at such time;
|
(f)
|
the first Repayment Instalment not being paid in accordance with this Agreement; and
|
(g)
|
there being insufficient funds in the Operating Account to meet the withdrawals requested by the Borrower to meet the Operating Expenses made in accordance with clause 28.6(a) (
Operating Account
).
|
(a)
|
prematurely terminate or close out any Hedging Transaction (other than as provided by clause 32.4) (
Close out of Hedging Contracts
);
|
(b)
|
recover all or any part of any Hedging Debt including by set-off (whether by operation of law or otherwise) or combination of accounts;
|
(c)
|
exercise or enforce any rights under any guarantee, indemnity or other assurance in relation to (or given in support of) all or any part of any Hedging Debt (including under any Security Document);
|
(d)
|
exercise or enforce any rights under any Security Interest whatsoever (including, without limitation, the crystallisation (automatic or otherwise) of a floating charge) which secures or purports to secure any Hedging Debt (including under any Security Document);
|
(e)
|
apply, petition or vote for (or take any other steps which may lead to) any event described in clause 31.7 (
Insolvency
) or clause 31.8 (
Insolvency Proceedings
) in relation to any Obligor; or
|
(f)
|
designate an Early Termination Date (as defined in any Hedging Master Agreement) or terminate and/or close out any transaction under any Hedging Contract prior to its stated maturity or demand payment of any amount which would become payable on or following an Early Termination Date or any such termination and/or close out, in each case other than in accordance with clause 32.4 (
Close out of Hedging Contracts
).
|
(a)
|
the Vessel, the Mooring, the Borrower or the O&M Contractor or any other Approved Operator or any other 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)
|
the Vessel and/or the Mooring may be arrested or attached in connection with any such Environmental Claim.
|
(a)
|
in relation to an Original Lender, the amount set out opposite its name under the heading ‘Facility A Commitment’ in Schedule 1 (
The original parties
) and the amount of any other Facility A Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
(a)
|
in relation to an Original Lender, the amount set opposite its name under the heading “Facility B Commitment” in Schedule 1 (
The Original Lenders
) and the amount of any other Facility B Commitment transferred to it under this Agreement; and
|
(b)
|
in relation to any other Lender, the amount of any Facility B Commitment transferred to it under this Agreement,
|
(a)
|
one hundred and seventy five million dollars ($175,000,000); and
|
(b)
|
such amount as the Facility Agent shall determine in accordance with clauses 2.3 (
Adjustment for breach of Debt Service Coverage Ratio)
,
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations or other official guidance;
|
(b)
|
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of 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)
|
an amount equal to the First Advance made prior to the Utilisation Date for the Final Advance; and
|
(b)
|
the amount of any commitment fee due but unpaid as at the Utilisation Date for the Final Advance.
|
(a)
|
monies borrowed (including any overdraft facility);
|
(b)
|
debit balances at banks or other financial institutions;
|
(c)
|
any amount raised by acceptance under any acceptance credit facility or equivalent;
|
(d)
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
(e)
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with applicable GAAP, be treated as a finance or capital lease;
|
(f)
|
unsubordinated redeemable preference shares (howsoever described);
|
(g)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
(h)
|
any Treasury Transaction (and, when calculating the value of that Treasury Transaction, the marked to market value shall be taken into account);
|
(i)
|
any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of any underlying liability;
|
(j)
|
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 (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;
|
(k)
|
any amount raised under any other transaction (including any forward sale or purchase, sale and sale-back or sale and leaseback agreement) under which interest charges are customarily paid or having the commercial effect of a borrowing or otherwise classified as borrowings under applicable GAAP; and
|
(l)
|
any guarantee for any of the items referred to in paragraphs (a) to (k) above.
|
(a)
|
28 February 2013; and
|
(b)
|
the date falling 3 months after the Utilisation Date of the Final Advance.
|
(a)
|
in relation to the Borrower, generally accepted accounting principles in Indonesia or the United States of America (as the case may be) in effect from time to time, consistently applied;
|
(b)
|
in relation to each Guarantor, the Pre-Completion Guarantor Group and the Final Repayment Guarantor Group, generally accepted accounting principles in the United States of America, in effect from time to time, consistently applied; and
|
(a)
|
any Original Hedging Bank;
|
(b)
|
any bank, financial institution, any trust, fund or other entity which has become a Party in accordance with clause 30.7 (
Assignment of Hedging Contracts by Hedging Banks
),
|
(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 those persons; and
|
(c)
|
any officers, employees or agents of any of the above persons.
|
(a)
|
all policies and contracts of insurance (which expression includes, without limitation, any confiscation, expropriation, nationalisation and deprivation insurance, together with any kidnap and ransom insurance); and
|
(b)
|
all entries in a protection and indemnity or war risks or other mutual insurance association,
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the relevant Interest Period of that Loan; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the relevant Interest Period of that Loan,
|
(a)
|
in relation to Facility A, the earliest to occur of:
|
(i)
|
27 February 2013;
|
(ii)
|
the Termination Date; and
|
(iii)
|
the Utilisation Date for the Final Advance; and
|
(b)
|
in relation to Facility B, the earliest to occur of:
|
(i)
|
the date falling 3 months prior to the Final Maturity Date; and
|
(ii)
|
the Termination Date,
|
(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)
|
in relation to any representations made at the times specified in clause 18.42(a), any other matters which are set out as qualifications or reservations as to matters of law of general application in the Legal Opinions.
|
(a)
|
any Original Lender; and
|
(b)
|
any bank, financial institution, or any trust, fund or other entity which has become a Party in accordance with clause 33 (
Changes to the Lenders
),
|
(a)
|
the applicable Screen Rate as of 11:00 a.m. (London time) on the Quotation Day for a period equal in length to the Interest Period for the Loan or relevant part of it or Unpaid Sum; or
|
(b)
|
as otherwise determined pursuant to clause pursuant to clause 10.1 (
Absence of quotations
),
|
(a)
|
any dollar or euro time deposit, overnight deposit, certificate of deposit or bankers' acceptance, issued by, or time deposit of, any of the Lenders or any other commercial banking institution which has a credit rating of at least AA from Standard & Poors;
|
(b)
|
undrawn amounts available for borrowing under this Agreement;
|
(c)
|
short-term commercial paper issued by any of the Lenders or any other person, having ratings of at least AA from Standard & Poors; and
|
(d)
|
cash balances and deposits (both current and fixed) with banks and other financial institutions available for withdrawal and cheque receivables discounted by a margin of five per cent (5%),
provided that Liquid Assets expressed or denominated in a currency other than dollars shall be
converted into dollars by reference to the rate of exchange used for conversion of such currency
in the consolidation of the relevant consolidated balance sheet of the Final Repayment Guarantor Group or the Pre-Completion Guarantor Group (as applicable)
for the financial year or half year as at which the amount of such Liquid Assets falls to be
determined for the purposes of this Agreement and the definition of "Free Liquid Assets" or, if the
relevant currency was not thereby involved, by reference to the rate of exchange or approximate
rate of exchange ruling on such date and determined on such basis as the Auditors may
determine or approve.
|
(a)
|
if there is any Loan then outstanding, a Lender or Lenders whose participations in the Loan(s) then outstanding aggregate more than 66
2
/
3
% of all such Loan(s); or
|
(b)
|
if there is no Loan then outstanding and the Available Facilities are then greater than zero, a Lender or Lenders whose Available Commitments aggregate more than 66
2
/
3
% of the Available Facilities; or
|
(c)
|
if there is no Loan then outstanding and the Available Facilities are then zero:
|
(i)
|
if the Available Facilities became zero after a Loan ceased to be outstanding, a Lender or Lenders whose Available Commitments aggregated more than 66
2
/
3
% of the Available Facilities immediately before the Available Facilities became zero; or
|
(ii)
|
if a Loan ceased to be outstanding after the Available Facilities became zero, a Lender or Lenders whose participations in the Loan(s) outstanding immediately before any Loan ceased to be outstanding aggregated more than 66
2
/
3
% of all such Loan(s).
|
(a)
|
the business, operations, property, condition (financial or otherwise) of any of the Obligors; or
|
(b)
|
the ability of an Obligor or the Charterer to perform its obligations under the Finance Documents or any of the Project Agreements; 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 Pre-Completion Guarantor Group for its financial year ended 2011;
|
(b)
|
the audited consolidated financial statements of the Final Repayment Guarantor Group for its financial year ended 2011; and
|
(c)
|
the audited financial statements of the Borrower for its financial year ended 2011.
|
(a)
|
the Mortgage;
|
(b)
|
the Security Assignment;
|
(c)
|
the Project Agreements Assignment;
|
(d)
|
the Insurance Assignment;
|
(e)
|
the Shareholders’ Security;
|
(f)
|
the Mooring Security;
|
(g)
|
the Account Security;
|
(h)
|
any Reinsurance Security;
|
(i)
|
the Manager’s Undertaking;
|
(j)
|
the Letter of Quiet Enjoyment;
|
(k)
|
the O&M Contractor Acknowledgement;
|
(l)
|
the Golar Management Norway Acknowledgement;
|
(m)
|
the O&M Contractor Assignment;
|
(n)
|
the Golar Energy Assignment;
|
(o)
|
each Notice of Assignment;
|
(p)
|
any Subordination Deed to be entered into on or around the date of this Agreement;
|
(q)
|
the Pre-Completion Guarantee;
|
(r)
|
the Fiduciary Assignments;
|
(s)
|
the Final Repayment Guarantee;
|
(t)
|
the Hedging Security; and
|
(u)
|
the Powers of Attorney.
|
(a)
|
the date falling twelve (12) calendar months after Final Acceptance; and
|
(b)
|
if the matters set out in clause 23.5 (
Performance Undertaking
) of this Agreement are not fully satisfied on the date specified in paragraph (a) above, such later date on which the Facility Agent (acting on the instruction of the Lenders) is satisfied (acting reasonably) that each of the matters set out in clause 23.5 (
Performance Undertaking
) of this Agreement remain fully satisfied.
|
(a)
|
any amendment to the Project Agreements by way of a change order or written amendment which relates to matters of a purely technical and/or operational nature and which would not, or would not (in the sole opinion of the Facility Agent (in consultation with the Technical Adviser)) be expected to:
|
(i)
|
require the Borrower to effect or otherwise result in a material structural alteration to the Vessel or the Mooring or affect the safety or structural integrity thereof; or
|
(ii)
|
result in any change in the amount (by way of reduction), calculation, method or timing of payment of the Total Charter Rate or the offhire provisions under the Charter; or
|
(iii)
|
result in any change to the Charter Period or the termination provisions of the Charter; or
|
(iv)
|
result in any change to the termination and/or force majeure provisions (if applicable) of a Project Agreement; or
|
(v)
|
result in any change to any counterparty to a Project Agreement; or
|
(vi)
|
in relation to the Shareholders’ Agreement, any amendment which would result in a variation to the provisions therein which relate to the management control of the Borrower or the distribution of dividends;
|
(b)
|
any amendment permitted under clause 24.1(d) (
Project Agreements
); and
|
(c)
|
any extension of the term of the Charter or the O&M Contract.
|
(a)
|
Financial Indebtedness incurred under, or as expressly permitted by, the Finance Documents; and
|
(b)
|
Financial Indebtedness in the form of Subordinated Loans.
|
(a)
|
any certificate of deposit, time deposit or overnight bank deposit made in dollars (on the basis that no foreign exchange risk is incurred) and for a period not to exceed one (1) month with a Lender or any other financial institution acceptable to the Facility Agent and having a credit rating for the long term indebtedness of not less than A- with Standard & Poor’s Rating Agency (or the equivalent rating with another internationally recognised credit rating agency); or
|
(b)
|
such other securities (including, without limitation, money market instruments) as may be approved by the Lenders.
|
(a)
|
unless a Default is continuing, any ship repairer’s or outfitter’s possessory lien in respect of the Vessel for an amount not exceeding the Major Casualty Amount;
|
(b)
|
any lien on the Vessel for master’s, officer’s or crew’s wages outstanding in the ordinary course of its trading which are not overdue;
|
(c)
|
any lien on the Vessel for salvage; and
|
(d)
|
any lien arising in the ordinary course of business or operation of the Vessel created by statute or by operation of law in Indonesia (and constituting a bona fide, non-discriminatory measure of general application) after the date of this Agreement and in respect of obligations which are not more than 30 days 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, in the reasonable opinion of the Facility Agent, involve any likelihood of the sale, forfeiture or loss or, or of any interest in, or loss of use (for a period of seven (7) days or more) of, the Vessel.
|
(a)
|
granted by the Finance Documents; or
|
(b)
|
a Permitted Maritime Lien; or
|
(c)
|
approved by the Lenders.
|
(a)
|
any offer, gift, payment, promise to pay, commission, fee, loan or other consideration which would constitute bribery or an improper gift or payment under, or a breach of, any 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)
|
the Earnings Account;
|
(b)
|
the Operating Account; and
|
(c)
|
the Debt Service Reserve Account.
|
(a)
|
all Sales Proceeds in respect of the Vessel and/or the Mooring;
|
(b)
|
proceeds in respect of any disposal of part of the Vessel and/or the Mooring;
|
(c)
|
Total Loss Proceeds in respect of the Vessel and/or the Mooring;
|
(d)
|
any Termination Fee;
|
(e)
|
the Purchase Option Price;
|
(f)
|
Tax refunds and other taxes applicable to the Project;
|
(g)
|
all Insurance Proceeds in respect of the Vessel and/or the Mooring in an amount greater than the applicable Major Casualty Amount;
|
(h)
|
the proceeds of any confiscation and expropriation insurances in respect of the Vessel and/or the Mooring;
|
(i)
|
the proceeds of any sale of the shares in respect of the Borrower pursuant to the Shareholders’ Security;
|
(j)
|
all amounts which are, at any time following an Event of Default, received or receivable from the Guarantors (or either of them) pursuant to clause 23.5 (
Performance Undertaking
) and/or clause 23.6 (
Shortfall Undertaking
); and
|
(k)
|
all other amounts which are from time to time required, pursuant to the terms of the Finance Documents, to be deposited in the Earnings Account.
|
(b)
|
in any other case, the rate at which the relevant Reference Bank could fund itself in the relevant currency for the relevant period with reference to the unsecured wholesale funding market.
|
(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)
|
the First Repayment Date;
|
(b)
|
each of the dates falling at three (3) monthly intervals thereafter up to but not including the Final Maturity Date; and
|
(c)
|
the Final Maturity Date.
|
(a)
|
listed on, or owned or controlled by a person listed on, or acting on behalf of (other than in an agency role) a person listed on, any Sanctions List;
|
(b)
|
located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or acting on behalf of (other than in an agency role), a person located in or organized under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions (to the extent that the relevant Sanctions Authority attaches legal effect to being located in and/or being incorporated under the laws of such country); or
|
(c)
|
otherwise a target of Sanctions.
|
(a)
|
the United States government (including, without limitation, CISADA);
|
(a)
|
the United Nations Security Council;
|
(b)
|
the United Kingdom;
|
(c)
|
the European Union (including the council of the European Union or the government of any of its member states),
|
(d)
|
Japan;
|
(e)
|
Singapore; and
|
(f)
|
in relation to (a) to (f) above, any government institution, entity or agency of any of the above acting on behalf of them in connection with Sanctions Laws, including, without limitation, the Office of Foreign Assets Control of the US Department of Treasury (OFAC), the United States Department of State, the United States Department of Commerce, any other agency of the United States of America and Her Majesty's Treasury (HMT) of the United Kingdom, the Ministry of Economy, Trade and Industry, the Ministry of Finance and Customs and Tariff Bureau of the Ministry of Finance and any other agency of the government of Japan and the Monetary Authority of Singapore.
|
(a)
|
the Original Security Documents;
|
(b)
|
any Subordination Deed executed after the date of this Agreement;
|
(c)
|
any other document as may after the date of this Agreement be executed to guarantee and/or secure any amounts owing to the Finance Parties under this Agreement or any other Security Document.
|
(a)
|
direct or indirect equity subscriptions by the Shareholders; and/or
|
(b)
|
any Subordinated Loan provided by the Sponsors, the Shareholders and/or Golar Khannur under a Sponsor Loan Agreement which is or will be subordinated in all respects to all amounts owing to the Finance Parties under the Finance Documents by a Subordination Deed.
|
(a)
|
directly or indirectly controlled by such person; or
|
(b)
|
of whose dividends or distributions on ordinary voting share capital such person is entitled to receive more than 50 per cent (50%).
|
(a)
|
the Total Loss Date;
|
(b)
|
the date stipulated by the Facility Agent in any notice issued pursuant to and in accordance with clause 31.33
(Acceleration)
or, where such notice declares the Loan to be repayable on demand, the date of that notice;
|
(c)
|
the date on which the Total Commitments are reduced to zero pursuant to clause 7.4
(Right of cancellation and prepayment in relation to a single Lender)
and for the purpose of collecting the commitment fee in clause 12 (
Fees
), the date on which the Total Commitments are reduced to zero;
|
(d)
|
the date on which the Borrower is required to make prepayment of the Loans pursuant to clause 7
(Illegality, prepayment and cancellation)
.
|
(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 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 or, as the case may be, the Mooring, 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 or, as the case may be, the Mooring, 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 relevant 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 Facility 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 Project 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).
|
1.2
|
Construction
|
(a)
|
Unless a contrary indication appears, any reference in any of the Finance Documents to:
|
(i)
|
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;
|
(ii)
|
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;
|
(iii)
|
words importing the plural shall include the singular and vice versa;
|
(iv)
|
a time of day are to Singapore time unless otherwise specified;
|
(v)
|
any person includes its successors in title, permitted assignees or transferees;
|
(vi)
|
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;
|
(vii)
|
agreed
form
means:
|
(A)
|
where a Finance Document has already been executed by the Facility Agent or the Security Agent, such Finance Document in its executed form;
|
(B)
|
prior to the execution of a Finance Document, the form of such Finance Document separately agreed in writing between the Facility Agent (acting on the instructions of the Lenders) 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;
|
(viii)
|
approved by the Majority Lenders
or
approved by the Lenders
means approved in writing by the Facility 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 Facility Agent (on such conditions as the Facility Agent may impose) and
approval
and
approve
shall be construed accordingly;
|
(ix)
|
assets
includes present and future properties, revenues and rights of every description;
|
(x)
|
an
authorisation
means any authorisation, consent, concession, approval, resolution, licence, exemption, filing, notarisation or registration;
|
(xi)
|
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;
|
(xii)
|
control
of an entity means:
|
(A)
|
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
(1)
|
cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of that entity; or
|
(2)
|
appoint or remove all, or the majority, of the directors or other equivalent officers of that entity; or
|
(3)
|
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
|
(B)
|
the holding beneficially of more than 50% 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);
|
(xiii)
|
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;
|
(xiv)
|
dollar
/
$
means the lawful currency of the United States of America;
|
(xv)
|
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 Facility Agent (with the relevant exchange rate of any such purchase being the Facility Agent’s spot rate of exchange);
|
(xvi)
|
a
government entity
means any government, state or agency of a state;
|
(xvii)
|
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;
|
(xviii)
|
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;
|
(xix)
|
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:
|
(A)
|
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
|
(B)
|
if there is no numerically corresponding day in that month, that period shall end on the last Business Day in that month
|
(xx)
|
an
obligation
means any duty, obligation or liability of any kind;
|
(xxi)
|
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);
|
(xxii)
|
pay, prepay or repay in clause 29 (
Business restrictions
) includes by way of set-off, combination of accounts or otherwise;
|
(xxiii)
|
a
person
includes any individual, firm, company, corporation, government entity or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
(xxiv)
|
a
regulation
includes any regulation, rule, official directive, request or guideline (whether or not having the force of law, but if not having the force of law, which is generally complied with in the ordinary course of business of the party concerned or by those to which it is addressed) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation and, in relation to any Lender, includes (without limitation) any Basel 2 Regulation or Basel 3 Regulation applicable to that Lender;
|
(xxv)
|
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;
|
(xxvi)
|
agent, trustee
,
fiduciary
and
fiduciary duty
has in each case the meaning given to such term under applicable law;
|
(xxvii)
|
(i) the
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;
|
(xxviii)
|
wholly-owned subsidiary
has the meaning given to that term in section 1159 of the Companies Act 2006; and
|
(xxix)
|
a provision of law is a reference to that provision as amended or re-enacted.
|
(b)
|
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.
|
(c)
|
Section, clause and Schedule headings are for ease of reference only.
|
(d)
|
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.
|
(e)
|
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 remedied prior to the making of a declaration by the Facility Agent under clause 31.33 (
Acceleration
)or waived.
|
1.3
|
Third party rights
|
(a)
|
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 to enjoy the benefit of any term of the relevant Finance Document.
|
(b)
|
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).
|
(c)
|
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
|
2
|
The Facilities
|
2.1
|
The Facilities
|
(a)
|
Subject to the terms of this Agreement, the Lenders make available to the Borrower:
|
(i)
|
a dollar term loan facility in two (2) Loans (being comprised of the First Advance, and the Final Advance) and in an aggregate amount of up to the Total Facility A Commitments (as adjusted pursuant to clause 2.3 below or otherwise in accordance with the terms of this Agreement); and
|
(ii)
|
a dollar revolving loan facility in an aggregate amount equal to the Total Facility B Commitments (as adjusted in accordance with the terms of this Agreement).
|
(b)
|
The obligation of each Lender under this Agreement shall be to contribute that proportion of each Loan which, as at the Utilisation Date for each Loan, its Commitment bears to the Total Commitments.
|
2.2
|
Finance Parties’ rights and obligations
|
(a)
|
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.
|
(b)
|
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.
|
(c)
|
A Finance Party may, except as otherwise stated in the Finance Documents (including clauses 37.25 (
All enforcement action through the Security Agent
)) and 38.2 (
Finance Parties acting together
), separately enforce its rights under the Finance Documents.
|
2.3
|
Adjustment for breach of Debt Service Coverage Ratio
|
3
|
Purpose
|
3.1
|
Purpose
|
3.2
|
Use
|
(a)
|
Subject to clause 3.2(b), the Loans shall be made available to the Borrower solely for the purposes of:
|
(i)
|
refinancing part of the Project Cost incurred; and/or
|
(ii)
|
refinancing part of the Sponsors’ equity contribution; and/or
|
(iii)
|
repayment of any Subordinated Loans extended by Golar Singapore or Golar Khannur to the Borrower; and/or
|
(iv)
|
providing the Borrower with working capital for the Project,
|
(b)
|
The Final Advance shall be made available to the Borrower for the purpose of funding the applicable Debt Service Reserve required to be maintained in accordance with clause 28.7 (
Debt Service Reserve Account
).
|
(c)
|
In particular, the proceeds of the Loans shall not be used in breach of Sanctions.
|
3.3
|
Monitoring
|
4
|
Conditions of Utilisation
|
4.1
|
Initial conditions precedent
|
4.2
|
Conditions precedent to Utilisation of the First Advance and/or Facility B
|
4.3
|
Conditions precedent to Utilisation of the Final Advance
|
4.4
|
Conditions subsequent
|
4.5
|
Notice to Lenders
|
4.6
|
Further conditions precedent
|
(a)
|
no Default is continuing or would result from the proposed Utilisation;
|
(b)
|
the Repeating Representations and, in relation to the first Utilisation, all of the other representations set out in clause 18 (
Representations)
, are true; and
|
(c)
|
in relation to the Utilisation for the Final Advance, the Vessel Representations are true.
|
4.7
|
Waiver of conditions precedent
|
4.8
|
Maximum number of Loans
|
(a)
|
3 or more Facility A Loans would be outstanding; or
|
(b)
|
5 or more Facility B Loans would be outstanding.
|
5
|
Utilisation
|
5.1
|
Delivery of a Utilisation Request
|
5.2
|
Completion of a Utilisation Request
|
(a)
|
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i)
|
it identifies the Facility to be utilised;
|
(ii)
|
the proposed Utilisation Date is a Business Day falling not later than the Last Availability Date applicable to that Facility;
|
(iii)
|
in relation to Facility B, the proposed Utilisation Date falls on the Utilisation Date for either the First Advance or the Final Advance or a Repayment Date or an Interest Payment Date;
|
(iv)
|
the currency and amount of the Utilisation comply with clauses 5.3 (
Currency
) and 5.5 (
Loan
);
|
(v)
|
the proposed first Interest Period complies with clause 9 (
Interest Periods
); and
|
(vi)
|
it identifies (i) the purpose for the Utilisation and that purpose complies with clause 3 (
Purpose
) and (ii) the account into which the Utilisation is to be paid.
|
(b)
|
Only one (1) Loan may be requested in each Utilisation Request.
|
5.3
|
Currency
|
5.4
|
Lenders’ participation
|
(a)
|
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
|
(b)
|
The amount of each Lender’s participation in a Loan will be equal to the proportion borne by its Commitment to the Total Commitments immediately prior to making the Loan.
|
(c)
|
The Facility Agent shall promptly notify each Lender of the amount of the Loan and the amount of its participation in the Loan.
|
(d)
|
The Facility 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.
|
5.5
|
Loans
|
(a)
|
In relation to the First Advance, the amount of the Loan specified in the applicable Utilisation Request for such Loan shall not exceed eighty per cent (80%) of the Total Commitments.
|
(b)
|
In relation to the Final Advance, the amount of the Loan specified in the applicable Utilisation Request for such Loan, when aggregated with the amount of the First Advance, shall not exceed the Total Facility A Commitments.
|
(c)
|
In relation to any Facility B Loan, the amount of the proposed Loan must be an amount which is not more than $20,000,000 (or, if less, the applicable Available Facility) and which is a minimum of $5,000,000 or, if less, the applicable Available Facility.
|
6
|
Repayment
|
6.1
|
Repayment
|
6.2
|
Scheduled repayment of Facilities
|
(a)
|
To the extent not previously reduced, the Facility A Loans shall be repaid by instalments on each Repayment Date by the amounts specified in the Repayment Schedule (as revised by clause 6.3).
|
(b)
|
The Borrower shall repay each Facility B Loan on the last day of its Interest Period.
|
(c)
|
Without prejudice to the Borrower’s obligation under paragraph (b) above, if one or more Facility B Loans are to be made available to the Borrower (i) on the same day that a maturing Facility B Loan is due to be repaid by the Borrower and (ii) in whole or in part for the purpose of refinancing the maturing Facility B Loan; and the proportion borne by each Lender's participation in the maturing Facility B Loan to the amount of that maturing Facility B Loan immediately before the new Facility B Loan(s) is made is the same as the proportion borne by that Lender's participation in the new Facility B Loan(s) to the aggregate amount of those new Facility B Loan(s), the aggregate amount of the new Facility B Loan(s) shall, unless the Borrower notifies the Facility Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Facility B Loan so that:
|
(i)
|
if the amount of the maturing Facility B Loan exceeds the aggregate amount of the new Facility B Loan(s):
|
(A)
|
the Borrower will only be required to make a payment under clause 40.1 (
Payments to the Facility Agent
) in an amount equal to that excess; and
|
(B)
|
each Lender's participation in the new Facility B Loan(s) 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 Facility B Loan and that Lender will not be required to make a payment under clause 40.1 (
Payments to the Facility Agent
) in respect of its participation in the new Facility B Loan(s); and
|
(ii)
|
if the amount of the maturing Facility B Loan is equal to or less than the aggregate amount of the new Facility B Loan(s):
|
(A)
|
the Borrower will not be required to make a payment under clause 40.1 (
Payments to the Facility Agent
); and
|
(B)
|
each Lender will be required to make a payment under clause 40.1 (
Payments to the Facility Agent
) in respect of its participation in the new Facility B Loan(s) only to the extent that its participation in the new Facility B Loan(s) exceeds that Lender's participation in the maturing Facility B Loan and the remainder of that Lender's participation in the new Facility B Loan(s) 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 Facility B Loan.
|
(d)
|
On the Final Maturity Date (without prejudice to any other provision of this Agreement), the Loans shall be repaid in full.
|
6.3
|
Adjustment of scheduled repayments
|
(a)
|
the Total Commitments have been partially reduced under this Agreement; and/or
|
(b)
|
the full amount of either Facility has not been drawn down on or before the Last Availability Date applicable to such Facility; and/or
|
(c)
|
any part of a Facility A Loan is prepaid (other than under clause 6.2 (
Scheduled repayment of Facilities
)) before any Repayment Date; and/or
|
(d)
|
any part of a Facility B Loan is prepaid,
|
7
|
Illegality, prepayment and cancellation
|
7.1
|
Illegality
|
(a)
|
it becomes unlawful at any time in any applicable jurisdiction for a Lender, or it becomes unlawful as a result of any Sanctions for any Lender, to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan or part thereof; or
|
(b)
|
any Obligor becomes a Restricted Party,
|
(i)
|
the affected Lender shall promptly notify the Facility Agent upon becoming aware of that event; and
|
(ii)
|
that Lender shall be given the opportunity (at its option) to transfer its rights and obligations to an Affiliate or a New Lender (as defined in clause 33 (
Changes to the
Lenders) pursuant to and in accordance with clause 33 (
Changes to the Lenders
)). If that Lender has not been able to effectively transfer its rights and obligations in such manner, then:
|
(A)
|
upon the Facility Agent acting on the instruction of the affected Lender notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and
|
(B)
|
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 Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
7.2
|
Voluntary prepayment of Facility A Loans
|
7.3
|
Voluntary prepayment of Facility B Loans
|
7.4
|
Right of cancellation and prepayment in relation to a single Lender
|
(a)
|
If:
|
(i)
|
any sum payable to any Lender by an Obligor is required to be increased under clause 13.2 (
Tax gross-up
); or
|
(ii)
|
any Lender claims indemnification from the Borrower under clause 13.3 (
Tax indemnity
) or clause 14.1 (
Increased Costs
),
|
(b)
|
On receipt of a notice referred to in clause (a) above, the Commitment of that Lender shall immediately be reduced to zero.
|
(c)
|
On the last day of each Interest Period which ends after the Borrower has given notice under clause (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender’s participation in the relevant Loan.
|
7.5
|
Right of cancellation in relation to a Defaulting Lender
|
(a)
|
If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent fifteen (15) Business Days' notice of cancellation of each Available Commitment of that Lender.
|
(b)
|
On the notice referred to in clause 7.5(a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.
|
(c)
|
The Facility Agent shall as soon as practicable after receipt of a notice referred to in clause 7.5(a) above, notify all the Lenders.
|
7.6
|
Total Loss
|
(a)
|
the Total Commitments will be reduced to zero; and
|
(b)
|
the Borrower shall prepay the Loans and the Hedging Debt (in accordance with the terms of the Hedging Contracts) in full.
|
7.7
|
Mandatory cancellation and prepayment
|
(a)
|
the Charterer is at any time no longer directly owned in accordance with its shareholdings existing as at the date of this Agreement (being sixty per cent. (60%) of the issued share capital of the Charterer for Pertamina and forty per cent. (40%) of the issued share capital of the Charterer for PGN) unless the relevant Charterer Shareholder(s) has been replaced with a replacement shareholder(s) who has an acceptable Minimum Credit Rating and replacement security to the relevant Charter Undertakings has been provided by such replacement shareholder(s) in form and substance satisfactory to the Lenders; or
|
(b)
|
a Charter Letter of Credit or either Charterer Undertaking ceases to be legally valid, binding and enforceable against the relevant letter of credit issuer or Charterer Shareholder unless such Charter Letter of Credit or Charterer Undertaking is replaced with equivalent support or security on terms satisfactory to the Lenders within thirty (30) days of such Charter Letter of Credit or Charterer Undertaking ceasing to be legally valid, binding and enforceable,
|
7.8
|
Sale of Vessel / Mooring System
|
(a)
|
If at any time the Vessel and/or the Mooring System is sold by or on behalf of the Borrower (which shall include a sale to the Charterer in accordance with clause 43 of the Charter following the exercise by the Charterer of the Charterer’s Purchase Option at a price that is sufficient to repay the Secured Obligations), the Borrower shall forthwith upon the date on which any Sales Proceeds are received by it (or by the Security Agent on its behalf) prepay the Loans in full, whereupon the Total Commitments shall be reduced to zero, and pay the Hedging Debt in full in accordance with the terms of the Hedging Contracts.
|
(b)
|
If the Sales Proceeds received are sufficient to pay, repay, satisfy and discharge the Secured Obligations in full, the Facility Agent shall as soon as reasonably practicable pay any Sales Proceeds remaining after such payment, repayment, satisfaction and discharge to the Borrower or to its order.
|
7.9
|
Charter
|
(a)
|
the Charter is for any reason (other than by default of the Borrower or through expiry by lapse of time or fulfilment of all obligations thereunder) and by any method cancelled, terminated, repudiated or rescinded and/or declared cancelled, terminated, repudiated or rescinded; or
|
(b)
|
the Charter ceases to be in full force and effect or is alleged by a party to it to be ineffective for any reason (other than through expiry by lapse of time or fulfilment of all obligations thereunder); or
|
(c)
|
a payment of the Termination Fee is made or payable in accordance with the Charter other than as a result of the occurrence described in clause 31.24 (
Charter termination and breach
); or
|
(d)
|
a Force Majeure Event occurs in accordance with clause 28.2(b) of the Charter and the Charterer has ceased to make payment of the Total Charter Rate in full (unless an Obligor pays to the Facility Agent any such Total Charter Rate which would remedy the shortfall within 10 Business Days of demand by the Facility Agent but provided further that no Default is continuing) and the Charter has not been terminated,
|
7.10
|
Major Casualty proceeds
|
(a)
|
the Vessel and/or the Mooring suffers damage or is involved in an incident which, in the opinion of the Technical Advisor is likely to result in the Vessel and/or the Mooring subsequently being determined to be a Total Loss and Insurance Proceeds in an amount equal to or greater than the Major Casualty Amount are received by the Borrower or any other Obligor in respect of such incident; or
|
(b)
|
Insurance Proceeds in an amount equal to or exceeding the Major Casualty Amount are received in the circumstances contemplated by clause 28.8(a)(iii) (
Insurance Proceeds
),
|
7.11
|
Unlawfulness and/or invalidity
|
(a)
|
it is or becomes unlawful for an Obligor or the Charterer or either Charterer Shareholder to perform any of their obligations under the Transaction Documents or any Security Interest created or expressed to be created or evidenced by the Security Documents ceases to be effective (other than by reason of the default of the relevant Obligor or the Charterer or either Charterer Shareholder);
|
(b)
|
any obligation or obligations of any Obligor or the Charterer or either Charterer Shareholder under any Transaction Documents are not or cease to be legal, valid, binding or enforceable (other than by reason of the default of the relevant Obligor or the Charterer or either Charterer Shareholder) and the cessation individually or cumulating materially and adversely affects the interests of the Finance Parties under the Finance Documents; or
|
(c)
|
any Finance Document or any Security Interest created 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 (other than by reason of the default of the relevant Obligor or the Charterer or either Charterer Shareholder),
|
7.12
|
Automatic cancellation
|
7.13
|
Restrictions
|
(a)
|
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.
|
(b)
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, if prepayment is made otherwise than on an Interest Payment Date, subject to any Break Costs (and any swap break costs in relation to the Loan (or any part thereof) which are payable in accordance with the terms of the Hedging Contracts), without premium or penalty.
|
(c)
|
The Borrower may not reborrow any part of the Facility A which is prepaid.
|
(d)
|
Unless a contrary judication appears in this Agreement, any part of Facility B which is repaid or prepaid may be reborrowed up to the Last Availability Date in respect of Facility B and otherwise in accordance with the terms of this Agreement.
|
(e)
|
The Borrower shall not repay or prepay all or any part of the Loans or reduce all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(f)
|
No amount of the Total Commitments reduced under this Agreement may be subsequently reinstated.
|
(g)
|
If the Facility 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.
|
(h)
|
If the Total Commitments are partially reduced under this Agreement (other than under clause 7.1 (
Illegality
) and clause 7.4 (
Right of cancellation and prepayment in relation to a single Lender
)), the Commitments of the Lenders shall be reduced rateably.
|
(i)
|
Subject to paragraph (j) below, any prepayment under this Agreement (other than under clause 7.1 (
Illegality
) and clause 7.4 (
Right of cancellation and prepayment in relation to a single Lender
)) shall be applied (i) in reducing each outstanding instalment (including the Balloon) in inverse order of maturity and pro rata against each Facility and (ii) pro rata among the Lenders in proportion to their participation in the relevant Loan(s).
|
(j)
|
Any prepayment under clause 7.2 (
Voluntary prepayment of Facility A Loans
) or 7.3 (
Voluntary prepayment of Facility B Loans
) shall be applied (i) in reducing each outstanding instalment (including the Balloon) of the relevant Loan in inverse order of maturity and (ii) pro rata among the Lenders in proportion to their participation in the relevant Loan(s).
|
(k)
|
Any prepayment under this Agreement shall be made together with payment to the Permitted Hedging Banks (pro rata) of any amount falling due to the Permitted Hedging Banks under the Hedging Contracts as a result of the termination or close out of the Hedging Contracts or any Hedging Transactions under them in accordance with 30.6 (
Unwinding of Hedging Contracts
) in relation to that prepayment.
|
8
|
Interest
|
8.1
|
Calculation of interest
|
(a)
|
Margin;
|
(b)
|
LIBOR; and
|
(c)
|
Mandatory Cost, if any.
|
8.2
|
Payment of interest
|
8.3
|
Default interest
|
(a)
|
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to clause (b) below, is two per cent (2%) higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a Loan for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing in accordance with this clause 8.3 shall be immediately payable by the Obligor on demand by the Facility Agent.
|
(b)
|
If any Unpaid Sum 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:
|
(i)
|
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
(ii)
|
the rate of interest applying to the overdue amount during that first Interest Period shall be two per cent (2%) higher than the rate which would have applied if the Unpaid Sum had not become due.
|
(c)
|
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
(d)
|
For the avoidance of doubt, this clause 8.3 does not apply to any amount payable under a Hedging Contract in respect of any continuing Transaction as to which section 2(e) (
Default Interest; Other Amounts
) of the ISDA Master Agreement of that Hedging Contract shall apply.
|
8.4
|
Notification of rates of interest
|
9
|
Interest Periods
|
9.1
|
Selection of Interest Periods
|
(a)
|
Each Interest Period will, subject to clauses 9.1(d), 9.1(e), 9.1(f), 9.1(g) and 9.2, be 3 months.
|
(b)
|
No Interest Period shall extend beyond the Final Maturity Date.
|
(c)
|
The initial Interest Period in respect of the First Advance shall commence on the Utilisation Date for that Loan.
|
(d)
|
The initial Interest Period in respect of the Final Advance shall commence on the Utilisation Date for that Loan and shall end on the next following Interest Payment Date in respect of the First Advance which falls in a succeeding calendar month and on the last day of the first Interest Period for the Final Advance, the Facility A Loans shall be consolidated and shall thereafter constitute the Facility A Loan.
|
(e)
|
The initial Interest Period in respect of the first Facility B Loan advanced to the Borrower under this Agreement shall commence on the Utilisation Date for that Loan. The initial Interest Period in respect of each subsequent Facility B Loan shall commence on the Utilisation Date for that Loan and shall end on the next following Interest Payment Date in respect of the then current Interest Period for the Facility B Loans and on the last day of the first Interest Period for such Facility B Loan, all outstanding Facility B Loans shall be consolidated and shall thereafter constitute the Facility B Loan.
|
(f)
|
The Interest Period in respect of any Loan which would otherwise end on a date falling after the First Repayment Date shall end on the First Repayment Date (or, to the extent that such date falls in the same calendar month, on the next following Repayment Date which falls in a succeeding calendar month).
|
(g)
|
If an Interest Period for any Loan would overrun any later Repayment Date, such Loan shall be divided into parts corresponding to the amounts by which the Facilities are scheduled to be reduced under clause 6.2 (
Scheduled repayment of Facilities
) on each of the Repayment Dates falling during such Interest Period (each of which shall have a separate Interest Period ending on the relevant Repayment Date) and to the balance of the Loans (which shall have the Interest Period selected by the Borrower).
|
9.2
|
Non-Business Days
|
10
|
Changes to the calculation of interest
|
10.1
|
Absence of quotations
|
(a)
|
Interpolated Screen Rate:
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.
|
(b)
|
Reference Bank Rate
: If no Screen Rate is available for LIBOR for:
|
(i)
|
dollars; or
|
(ii)
|
the relevant Interest Period and it is not possible to calculate the Interpolated Screen Rate,
|
(c)
|
Subject to clause 11.1 (
Market disruption
), if LIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by 11:00 a.m. on the Quotation Day, the applicable LIBOR shall be determined on the basis of the quotations of the remaining Reference Banks.
|
11
|
Market Disruption
|
11.1
|
Market disruption
|
(a)
|
If a Market Disruption Event occurs in relation to a Loan prior to the commencement of any Interest Period, then the rate of interest on each Lender’s share in that Loan for the Interest Period shall be the rate per annum which is the sum of:
|
(i)
|
the Margin; and
|
(ii)
|
the rate notified to the Facility Agent by that Lender (in a Market Disruption Notification, at the time set out in clause (b)(ii)) to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select; and
|
(iii)
|
the Mandatory Cost, if any, applicable to that Lender’s participation in that Loan.
|
(b)
|
In this Agreement:
|
(i)
|
at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available and none of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for the relevant Interest Period; or
|
(ii)
|
before 17:00 (Singapore time) one Business Day after the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from any Lender or Lenders (the
Affected Lenders
) (whose participations in a Loan are equal to or exceed 35% of that Loan) (pursuant to a Market Disruption Notification) that the cost to it of obtaining matching deposits in the Interbank Market would be in excess of LIBOR or that it cannot obtain sufficient funds in the Interbank market to fund its participation in the Loan (and that the Facility Agent shall inform the other Lenders in accordance with paragraph 3 of the Market Disruption Notification as set out in Schedule 8 (
Form of Market Disruption Notification
)).
|
11.2
|
Alternative basis of interest or funding
|
(a)
|
If a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for a period of not more than thirty (30) days (in the case of Interest Periods of three (3) months’ or more duration) or, in the case of Interest Periods of less than three (3) months’ duration, a period ending not less than seven (7) days prior to the end of the current Interest Period, with a view to agreeing a substitute basis for determining the rate of interest for the relevant Affected Lenders.
|
(b)
|
Any alternative basis agreed pursuant to (a) above shall, with the prior consent of the Affected Lenders and the Borrower, be binding on all Parties.
|
(c)
|
Following the end of the period referred to in clause (a) (in the event that no substitute basis is agreed at the end of such period) or, if the Facility Agent and the Borrower do not require any such negotiations as to a substitute basis to be entered into, then following receipt of the notices from the Lenders pursuant to clause 11.1 in respect of any Interest Period, the Facility Agent shall notify the Borrower of the total additional costs of the Affected Lenders for such Interest Period and the Borrower shall pay such additional costs on the last day of the such Interest Period in addition to the accrued interest on the Loan. The Facility Agent shall not be obliged to disclose to the Borrower or the Lenders (and neither the Borrower nor the Lenders shall be entitled to request from the Facility Agent) details of each Lender’s individual funding costs.
|
(d)
|
The Facility Agent’s notice under clause (c) shall, in the absence of manifest error, be binding on all Parties.
|
11.3
|
Notice of prepayment
|
11.4
|
Prepayment; termination of Commitments
|
(a)
|
on the date on which the Facility Agent provides such notice, the Total Commitments or (as the case may be) the relevant participation in the Loans of the Affected Lender, shall be cancelled; and
|
(b)
|
on the prepayment date specified in the notice of prepayment served in accordance with clause 11.3
(Notice of prepayment)
, the Borrower shall prepay (without premium or penalty) the Affected Lender’s participation in the Loans, together with accrued interest thereon at the applicable rate plus the Margin and Mandatory cost, if any.
|
11.5
|
Break Costs
|
(a)
|
The Borrower shall, within four (4) 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 Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum or relevant part of it.
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide to the Facility Agent a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
12
|
Fees
|
12.1
|
Commitment commission
|
(a)
|
The Borrower shall pay to the Facility Agent (for the account of each Lender) a fee in dollars computed at the rate of one point four per cent (1.4%) per annum calculated daily on the Available Facility of each Facility calculated from the date of this Agreement (the
Start Date
) to the date of payment of the accrued commitment commission pursuant to clause (b) below.
|
(b)
|
The Borrower shall pay the accrued commitment commission on the last day of the period of three months commencing on the Start Date, on the last day of each successive period of three months, on the Last Availability Date of each Facility and, if a Lender’s Commitment is cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.
|
12.2
|
Agency fee
|
12.3
|
Structuring and Documentation fee
|
12.4
|
Upfront fees
|
(a)
|
within thirty (30) days of the date of this Agreement, or on the date of the First Advance (whichever is earlier) pay to the Facility Agent (for the account of each Mandated Lead Arranger (and to be distributed between the Mandated Lead Arrangers pro rata)), whether or not any part of the Loan is ever drawn down, an upfront fee in the amount agreed in a Fee Letter; and
|
(b)
|
on or before the Effective Date (as such term is defined in the Supplemental Agreement), pay to the Facility Agent (for the account of the Mandated Lead Arranger) an upfront fee in the amount agreed in a Fee Letter.
|
13
|
Tax gross-up and indemnities
|
13.1
|
Definitions
|
(a)
|
In this Agreement:
|
(b)
|
Unless a contrary indication appears, in this clause 13 a reference to “determines” or determined means a determination made in the absolute discretion of the person making the determination.
|
13.2
|
Tax gross-up
|
(a)
|
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.
|
(b)
|
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 Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
(c)
|
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 to be made.
|
(d)
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and, subject to the proviso in clause 33.2(a) (
Conditions of assignment or transfer
), any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(e)
|
Within thirty (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 Facility 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.
|
13.3
|
Tax indemnity
|
(a)
|
The Borrower shall (within four (4) Business Days of demand by the Facility 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.
|
(b)
|
Clause (a) above shall not apply:
|
(i)
|
with respect to any Tax assessed on a Finance Party:
|
(A)
|
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
|
(B)
|
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,
|
(ii)
|
to the extent a loss, liability or cost is compensated for by an increased payment under clause 13.2 (
Tax gross-up
).
|
(c)
|
A Protected Party making, or intending to make a claim under clause (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrower.
|
(d)
|
A Protected Party shall, on receiving a payment from an Obligor under this clause 13.3, notify the Facility Agent.
|
13.4
|
Indemnities on after Tax basis
|
(a)
|
if and to the extent that any sum payable to any Protected Party by the Borrower under any Finance Document by way of indemnity or reimbursement proves to be insufficient, by reason of any Tax suffered thereon, for that Protected Party to discharge the corresponding liability to a third party, or to reimburse that Protected Party for the cost incurred by it in discharging the corresponding liability to a third party, the Borrower shall pay that Protected Party such additional sum as (after taking into account any Tax suffered by that Protected Party on such additional sum) shall be required to make up the relevant deficit.
|
(b)
|
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.
|
(c)
|
For the purposes of this clause 13.4 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.
|
(d)
|
This clause shall not apply to the extent any loss, liability or cost results from a FATCA Deduction required to be made by a Party.
|
13.5
|
Tax credit
|
(a)
|
a Tax Credit is attributable to that Tax Payment; and
|
(b)
|
that a Finance Party has obtained, utilised and retained that Tax Credit,
|
13.6
|
Stamp taxes
|
13.7
|
Indirect Tax
|
(a)
|
All consideration expressed to be payable under a Finance Document by any Party to a Finance Party shall be deemed to be exclusive of any Indirect Tax. If any Indirect Tax is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the Indirect Tax.
|
(b)
|
Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all Indirect Tax incurred by that Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that it is not entitled to credit or repayment in respect of the Indirect Tax.
|
(c)
|
A Finance Party making, or intending to make a claim under this clause 13.7 shall provide the Facility Agent with reasonable evidence of the Indirect Tax referred to in this clause 13.7 (if available), following which the Facility Agent shall pass on such evidence to the Borrower.
|
13.8
|
Conflict with Hedging Contracts
|
13.9
|
FATCA Deduction
|
(a)
|
Each Obligor may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Obligor 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.
|
(b)
|
Each Obligor 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 also notify the Borrower and the Agent and the Agent shall notify the other Finance Parties.
|
13.10
|
FATCA Information
|
(a)
|
Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party;
|
(ii)
|
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;
|
(iii)
|
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
|
(b)
|
If a Party confirms to another Party pursuant to paragraph (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.
|
(c)
|
Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraphs (a)(ii) and (iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation or listing requirement;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a) above, then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
14
|
Increased Costs
|
14.1
|
Increased Costs
|
(a)
|
Subject to clause 14.3 (
Exceptions
), the Borrower shall, within four (4) Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates which:
|
(i)
|
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 in either case made after the date of this Agreement; and/or
|
(ii)
|
is a Basel 3 Increased Cost (to the extent the same could not be reasonably determined on or before the date of this Agreement).
|
(b)
|
In this Agreement
Increased Costs
means:
|
(i)
|
a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;
|
(ii)
|
an additional or increased cost;
|
(iii)
|
a reduction of any amount due and payable under any Finance Document; or
|
(iv)
|
without limitation, any costs incurred as a result of any reduction in the rate of return on capital required as a result of more capital being required to be allocated by a Finance Party,
|
14.2
|
Increased Cost claims
|
(a)
|
A Finance Party intending to make a claim pursuant to clause 14.1 (
Increased Costs
) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrower.
|
(b)
|
Each Finance Party shall, promptly after a demand by the Facility Agent provide a certificate setting forth the basis of the computation of the amount of its Increased Costs (but not including any matters which such Finance Party or its holding company regards as confidential to the Facility Agent).
|
14.3
|
Exceptions
|
(a)
|
Clause 14.1 (
Increased Costs
) does not apply to the extent any Increased Cost is:
|
(i)
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(ii)
|
compensated for by clause 13.3 (
Tax indemnity
) (or would have been compensated for under clause 13.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in clause 13.3(b) applied);
|
(iii)
|
attributable to the wilful breach or gross negligence by the relevant Finance Party or its Affiliates of any law or regulation;
|
(iv)
|
compensated for by the payment of the Mandatory Cost;
|
(v)
|
attributable to a change in the rate of tax on the overall net income of any Finance Party (or parent company of it);
|
(vi)
|
attributable to the implementation or application of or compliance with any Basel 2 Regulation published as at the date falling six (6) months prior to the date of this Agreement; or
|
(vii)
|
attributable to a FATCA Deduction required to be made by a Party.
|
(b)
|
In this clause 14.3, a reference to a
Tax Deduction
has the same meaning given to the term in clause 13.1 (
Definitions
).
|
15
|
Other indemnities
|
15.1
|
Currency indemnity
|
(a)
|
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:
|
(i)
|
making or filing a claim or proof against that Obligor; and/or
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b)
|
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.
|
15.2
|
Other indemnities
|
(a)
|
the occurrence of any Event of Default;
|
(b)
|
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, all Losses arising as a result of clause 39 (
Sharing among the Finance Parties
);
|
(c)
|
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);
|
(d)
|
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower;
|
(e)
|
any information provided by the Borrower under or pursuant to this Agreement and/or any Finance Document being misleading or deceptive; or
|
(f)
|
any enquiry, investigation, subpoena or similar order or litigation with respect of any Obligor.
|
15.3
|
Indemnity to the Facility Agent and the Security Agent
|
(a)
|
investigating any event which it reasonably believes is a Default;
|
(b)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
|
(c)
|
any action or omission taken by the Facility Agent and/or the Security Agent or any of 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.
|
15.4
|
Indemnity concerning security
|
(a)
|
The Borrower shall (or shall procure that another Obligor will) promptly indemnify each Indemnified Person against all Losses incurred by it in connection with:
|
(i)
|
the taking, holding, protection or enforcement of the Security Documents;
|
(ii)
|
the exercise or purported exercise of any of the rights, powers, discretions and remedies vested in the Security Agent and each Receiver by the Finance Documents or by law unless and to the extent that it was caused by its gross negligence or wilful misconduct;
|
(iii)
|
any action or omission taken or committed by the Facility Agent under or in connection with any Finance Document, or any insurance policy, unless directly caused by its gross negligence or wilful misconduct;
|
(iv)
|
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; or
|
(v)
|
any breach by any Obligor of the Finance Documents.
|
(b)
|
The Security Agent may, in priority to any payment to the other Finance Parties, indemnify itself out of the Trust Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this clause 15.4 and shall have a lien on the Security Documents and the proceeds of the enforcement of those Security Documents for all monies payable to it.
|
15.5
|
General operating indemnity
|
(a)
|
The Borrower hereby agrees at all times to pay promptly or, as the case may be, indemnify each Indemnified Person against all Losses incurred by it:
|
(i)
|
arising directly or indirectly out of or in any way connected with the purchase, refurbishment, conversion, manufacture, construction, installation, transportation, ownership, possession, performance, management, sale, import to or export from any jurisdiction, control, use or operation, registration, navigation, certification, classification, management, manning, provisioning, the provision of bunkers and lubricating oils, testing, design, condition, acceptance, chartering, sub-leasing, insurance, maintenance, repair, service, modification, refurbishment, dry-docking, survey, overhaul, replacement, removal, repossession, return, redelivery, sale or disposal of the Vessel (or any part thereof) or the Mooring (or any part thereof), whether or not such Losses may be attributable to any defect in the Vessel (or any part thereof) or the Mooring (or any part thereof) or to the design, construction or use thereof or from any maintenance, service, repair, overhaul, inspection or to any other reason whatsoever (whether similar to any of the foregoing or not), and regardless of when the same shall arise (whether prior to, during or after termination of this Agreement) and whether or not the Vessel or the Mooring (or any part thereof) is in the possession or control of the Borrower, the O&M Contractor, Golar Management Norway or the Charterer or any other person;
|
(ii)
|
as a consequence of any claim that any design, article or material in the Vessel (or any part thereof) or the Mooring (or any part thereof) or any part thereof or relating thereto or the operation or use thereof constitutes an infringement of patent, copyright, design or other proprietary right;
|
(iii)
|
in preventing or attempting to prevent the arrest, confiscation, seizure, taking in execution, requisition, impounding, forfeiture or detention of the Vessel (or any part thereof) or the Mooring (or any part thereof) or in securing or attempting to secure the release of the Vessel (or any part thereof) or the Mooring (or any part thereof);
|
(iv)
|
as a consequence (direct or indirect) of the breach by any person (other than the Indemnified Persons) of any of their respective obligations under this Agreement or any of the Finance Documents or of any of the warranties and representations on the part of any person (other than the Indemnified Persons) made in this Agreement or in any of the Finance Documents being untrue or inaccurate in any respect whatsoever when made.
|
(b)
|
The Borrower hereby agrees at all times to pay promptly or, as the case may be, indemnify each Indemnified Person against any costs and expenses incurred by the Indemnified Persons in connection with the sale of the Vessel (or any part thereof) and/or the Mooring (or any part thereof) (including, without limitation, broker’s commissions, redelivery costs (if any), marketing expenses, legal costs, storage, insurance, registration fees and any other expenses of the Indemnified Persons incurred pending the sale or disposal of the Vessel (or any part thereof) and/or the Mooring (or any part thereof) or otherwise in connection with the sale or disposal of the Vessel (or any part thereof) and/or the Mooring (or any part thereof)).
|
(c)
|
The indemnities contained in this clause 15.5 (
General operating indemnity
) shall not extend to any claim or liability of a Finance Party to the extent that such claim or liability:
|
(i)
|
arises as a direct consequence of the gross negligence or wilful misconduct of that Finance Party;
|
(ii)
|
is caused by any failure on the part of that Finance Party to comply with any of its express obligations under any of the Finance Documents to which that Finance Party is a party (but excluding any such breach or failure that arises as a result of the failure of a party to such Finance Document (other than that Finance Party) duly and punctually to perform its obligations);
|
(iii)
|
represents any loss of future income or profits (other than to the extent the same comprises, consists or is derived from interest or the margin thereon or any Increased Costs);
|
(iv)
|
in respect of which that Finance Party is expressly and specifically indemnified and has received and is entitled to retain such indemnity under any other provision of the Finance Documents.
|
15.6
|
Environmental indemnity
|
15.7
|
Continuation of indemnities
|
15.8
|
Third Parties Act
|
15.9
|
Interest
|
15.10
|
Exclusion of liability
|
15.11
|
Fax and email indemnity
|
15.12
|
Survival
|
16
|
Mitigation by the Lenders
|
16.1
|
Mitigation
|
(a)
|
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of clause 7.1 (
Illegality
), clause 13 (
Tax gross-up and indemnities
) or clause 14 (
Increased Costs
) or paragraph 3 of Schedule 5 (
Mandatory Cost formulae
) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b)
|
Clause (a) does not in any way limit the obligations of any Obligor under the Finance Documents.
|
16.2
|
Limitation of liability
|
(a)
|
The Borrower shall indemnify each Finance Party for all costs and expenses incurred by that Finance Party as a result of steps taken by it under clause 16.1 (
Mitigation
) which are notified to the Borrower.
|
(b)
|
No Finance Party is obliged to take any steps under clause 16.1 (
Mitigation
) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
17
|
Costs and expenses
|
17.1
|
Transaction expenses
|
(a)
|
The Borrower shall promptly within five (5) Business Days of demand pay the Facility Agent, the Co-ordination and Structuring Bank and the Security Agent the amount of all costs and expenses (including fees, costs and expenses of legal advisers and insurance, technical and other consultants and advisers) reasonably incurred by any of them (and by any Receiver) in connection with the negotiation, preparation, printing, execution, syndication, registration and perfection and any release, discharge or reassignment of:
|
(i)
|
this Agreement and any other documents referred to in this Agreement and the Original Security Documents;
|
(ii)
|
any other Finance Documents executed or proposed to be executed after the date of this Agreement; and/or
|
(iii)
|
any Security Interest expressed or intended to be granted by a Finance Document.
|
(b)
|
The Facility Agent shall be entitled to withhold from the amount of a Loan made available to the Borrower an amount representing the costs and expenses referred to in clause (a) (to the extent that such costs and expenses have been notified to the Facility Agent and the Borrower (and the Borrower has agreed the amount of such costs and expenses (such agreement not to be unreasonably withheld or delayed) prior to the date of the Loan).
|
17.2
|
Amendment costs
|
17.3
|
Enforcement, preservation and other costs
|
18
|
Representations
|
18.1
|
Status
|
(a)
|
Each Obligor is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation as a limited liability company or corporation and has no centre of main interests, permanent establishment outside the jurisdiction in which it is incorporated.
|
(b)
|
Each Obligor has power and authority to carry on its business as it is now being conducted and to own its property and other assets.
|
18.2
|
Binding obligations
|
18.3
|
Power and authority
|
(a)
|
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 Transaction Document and the transactions contemplated by the Transaction Documents to which it is or will be a party.
|
(b)
|
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 Transaction Document to which such Obligor is, or is to be, a party.
|
18.4
|
Non-conflict
|
(a)
|
subject to any applicable Legal Reservation,
any law or regulation applicable to any Obligor;
|
(b)
|
the constitutional documents of any Obligor; or
|
(c)
|
any agreement or other instrument binding upon the Borrower or its assets or constitute a default or termination event (however described) under any such agreement or instrument;
|
(d)
|
any agreement or other instrument binding upon any Obligor (other than the Borrower) or its assets or constitute a default or termination event (however described) under any such agreement or instrument which would have a Material Adverse Effect, or
|
18.5
|
Validity and admissibility in evidence
|
(a)
|
All Consents required or desirable (in connection with the Project and/or the Vessel and/or the Mooring or otherwise):
|
(i)
|
to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations under each Transaction Document to which it is a party;
|
(ii)
|
to make each Transaction Document to which it is a party admissible in evidence in its Relevant Jurisdiction; and
|
(iii)
|
to ensure that each of the Security Interests created under the Security Documents has the priority and ranking contemplated by them,
|
(b)
|
All Consents necessary for the conduct of the business, trade and ordinary activities of each Obligor have been obtained or effected and are in full force and effect.
|
18.6
|
Governing law and enforcement
|
(a)
|
Subject to any applicable Legal Reservation, the choice of English law or any other applicable law as the governing law of any Transaction Document will be recognised and enforced in each Obligor’s Relevant Jurisdiction.
|
(b)
|
Subject to any applicable Legal Reservation, any judgment obtained in England in relation to an Obligor will be recognised and enforced in the relevant Obligor’s Relevant Jurisdictions.
|
18.7
|
Information
|
(a)
|
Any Information is true and accurate in all material respects at the time it was given or made.
|
(b)
|
At the time the Information is given, there are no facts or circumstances or any other information which could make the Information incomplete, untrue, inaccurate or misleading in any material respect.
|
(c)
|
At the time the Information is given, the Information does not omit anything which could make the Information incomplete, untrue, inaccurate or misleading in any material respect.
|
(d)
|
All opinions, projections, forecasts, estimates 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.
|
(e)
|
For the purposes of this clause 18.7,
Information
means: any information provided by any Obligor to any of the Finance Parties in connection with the Transaction Documents or the transactions referred to in them, excluding any Information concerning any third party (which is not a member of the Pre-Completion Guarantor Group) which was received and provided by the Borrower in good faith and to the best of its knowledge and belief.
|
18.8
|
Original Financial Statements
|
(a)
|
The Original Financial Statements were prepared in accordance with applicable GAAP consistently applied.
|
(b)
|
The audited Original Financial Statements give a true and fair view of the financial condition and results of operations of the Borrower and the Pre-Completion Guarantor Group and Final Repayment Guarantor Group (consolidated in the case of the Pre-Completion Guarantor Group and Final Repayment Guarantor Group) during the relevant financial year.
|
(c)
|
There has been no material adverse change in the assets, business or financial condition of the Borrower (or the assets, business or consolidated financial condition of the Pre-Completion Guarantor Group and Final Repayment Guarantor Group) since the date of the Original Financial Statements.
|
18.9
|
Pari passu ranking
|
18.10
|
Ranking and effectiveness of security
|
18.11
|
No insolvency
|
18.12
|
No filing, stamp taxes or announcements
|
18.13
|
Deduction of Tax
|
18.14
|
No Default
|
(a)
|
No Default is continuing or is reasonably likely to result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document.
|
(b)
|
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 the Borrower or to which the Borrower’s assets are subject.
|
(c)
|
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 (other than the Borrower) or to which any Obligor’s (other than the Borrower) assets are subject which would have a Material Adverse Effect.
|
18.15
|
No proceedings pending or threatened
|
18.16
|
No breach of laws
|
(a)
|
No Obligor has breached any law or regulation which would have a Material Adverse Effect.
|
(b)
|
No labour dispute is current or, to the best of any Obligor’s knowledge and belief, threatened against any Obligor which would have a Material Adverse Effect.
|
18.17
|
Compliance with Consents
|
18.18
|
Taxation
|
(a)
|
No Obligor is materially overdue in the filing of any Tax returns or overdue in the payment of any amount in respect of Tax due and payable by it unless, in respect of the Sponsors and only to the extent that:
|
(i)
|
such payment is being contested in good faith;
|
(ii)
|
adequate reserves are being maintained for those Taxes and the costs required to contest them have been disclosed in its latest Financial Statements delivered to the Facility Agent under clause 19.1 (
Financial statements
);
|
(iii)
|
such payment can be lawfully withheld; and
|
(iv)
|
failure to pay those Taxes does not have and is not reasonably likely to have a Material Adverse Effect.
|
(b)
|
No claims or investigations are being, or is reasonably likely to be, made or conducted against any Obligor with respect to Taxes such that a liability of, or claim against, any Obligor is reasonably likely to arise for an amount for which adequate reserves have not been provided in the Original Financial Statements and which would have a Material Adverse Effect.
|
(c)
|
Each Obligor is resident for Tax purposes only in the jurisdiction of its incorporation.
|
18.19
|
Security and Financial Indebtedness
|
(a)
|
No Security Interest exists over all or any of the present or future assets of any Obligor in breach of this Agreement.
|
(b)
|
The Borrower does not have has any Financial Indebtedness outstanding in breach of this Agreement.
|
18.20
|
Legal and beneficial ownership
|
18.21
|
Shares
|
(a)
|
The shares of the Borrower are fully paid and not subject to any Security Interest (other than pursuant to the Security Documents), any option to purchase or similar rights. The Constitutional Documents of the Borrower do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Security Documents. There are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment of, any share or loan capital of the Borrower (including any option or right of pre-emption or conversion).
|
(b)
|
The Sponsors and/or the Pre-Completion Guarantor directly or indirectly, legally and beneficially, own (and will, throughout the Facility Period, continue to directly or indirectly, legally and beneficially, own) one hundred per cent. (100%) of the shares in the Borrower and, throughout the Facility Period, the Sponsors and/or the Pre-Completion Guarantor will maintain the Borrower as a special purpose company for the purposes of the Project.
|
(c)
|
PSU directly legally and beneficially owns 51% of the shares in the Borrower and the Final Repayment Guarantor indirectly legally and beneficially owns 49% of the shares in the Borrower (and each of PSU and the Final Repayment Guarantor will, throughout the Facility Period, continue to directly legally and beneficially own the shares in the Borrower and the Final Repayment Guarantor will retain management control over the Borrower throughout the Facility Period).
|
(d)
|
The Pre-Completion Guarantor will retain management control over the Final Repayment Guarantor throughout the Facility Period.
|
18.22
|
Accounting Reference Date
|
18.23
|
Copies of documents
|
18.24
|
No breach of any Project Agreement
|
18.25
|
Conversion Contract Documents and Mooring Documents
|
18.26
|
No immunity
|
18.27
|
Vessel status
|
18.28
|
Vessel’s employment
|
(a)
|
have been delivered, and accepted for service, under the Charter;
|
(b)
|
be free of any other charter commitment which, if entered into after that date, would require approval under the Finance Documents;
|
(c)
|
be operationally seaworthy and in every way fit for service for the purposes of the Charter;
|
(d)
|
be classed with the relevant Classification free of all overdue conditions and recommendations of the relevant Classification Society which have not expired; and
|
(e)
|
be insured in the manner required by the Finance Documents.
|
18.29
|
Mooring
|
(a)
|
have been delivered, and accepted for service, under the Charter and the Mooring Terms (as defined in the Charter);
|
(b)
|
be free of any other charter commitment which, if entered into after that date, would require approval under the Finance Documents;
|
(c)
|
be in every way fit for service for the purposes of the Charter; and
|
(d)
|
be insured in the manner required by the Finance Documents.
|
18.30
|
Address commission
|
18.31
|
Earnings
|
18.32
|
Environmental matters
|
(a)
|
Each Obligor and the Vessel and the Mooring are in compliance with all relevant Environmental Laws and Environmental Standards applicable to the Vessel, the Mooring and the Project (and no Environmental Law or any of the Environmental Standards applicable to the Vessel and/or the Mooring and/or any Obligor has been breached).
|
(b)
|
All consents, licences and approvals required under such Environmental Laws and Environmental Standards have been obtained and are currently in force.
|
(c)
|
No Environmental Claim has been made or threatened or is pending against the Vessel, the Mooring or any of the Obligors in relation to the Vessel, the Mooring or the Project and the Borrower has no reason to believe that any Obligor has or is likely to have any liability in relation to Environmental Claims in relation to the Vessel, the Mooring or the Project.
|
18.33
|
No Pollutants
|
18.34
|
Details of environmental audits
|
18.35
|
No obligations or assets
|
(a)
|
liabilities to Golar Singapore and Golar Khannur in respect of any Sponsor Loan Agreement which liabilities are or will be (as the case may be) regulated by a Subordination Deed;
|
(b)
|
Charter Liabilities and liabilities under the other Transaction Documents;
|
(c)
|
liabilities in respect of corporate filings, returns, accounting and Taxes due in the ordinary course of its business;
|
(d)
|
liabilities pursuant to the terms of the Hedging Contracts; and
|
(e)
|
liabilities arising under any law or regulation in a Relevant Jurisdiction,
|
18.36
|
Other business
|
18.37
|
Subsidiaries and minority interest
|
18.38
|
No Prohibited Payments
|
18.39
|
No funds of illicit origin
|
18.40
|
Sanctions
|
(a)
|
No Loan will be used by any Obligor or any member of the Pre-Completion Guarantor Group:
|
(i)
|
directly, to finance equipment or sectors under embargo decisions of the United Nations or the World Bank; or
|
(ii)
|
in breach of any Sanctions.
|
(b)
|
Neither the Borrower nor the Sponsors (or either of them) nor the Guarantors (or either of them) is a Restricted Party or has received notice of or is aware of, having undertaken all reasonable enquiries, any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority.
|
18.41
|
No adverse consequences
|
(a)
|
It is not necessary under the laws of the Relevant Jurisdictions of any Obligor:
|
(i)
|
in order to enable any Finance Party to enforce its rights under any Finance Document; or
|
(ii)
|
by reason of the execution of any Finance Document or the performance by any Obligor of its obligations under any Finance Document,
|
18.42
|
Times when representations are made
|
(a)
|
All of the representations and warranties set out in this clause 18 (other than Vessel Representations and clause 18.40 (
Sanctions
)) are deemed to be repeated on the dates of:
|
(i)
|
this Agreement;
|
(ii)
|
the first Utilisation Request; and
|
(iii)
|
the first Utilisation.
|
(b)
|
The Repeating Representations are deemed to be repeated on the dates of each subsequent Utilisation Request and on the first day of each Interest Period.
|
(c)
|
The Vessel Representations are deemed to be made and repeated on the first day of the Mortgage Period and on Final Acceptance.
|
(d)
|
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.
|
19
|
Information undertakings
|
19.1
|
Financial statements
|
(a)
|
The Borrower shall supply to the Facility Agent as soon as the same become available, but in any event within one hundred and eighty (180) days after the end of each of its financial years:
|
(i)
|
the audited consolidated financial statements of the Pre-Completion Guarantor Group and the Final Repayment Guarantor Group for that financial year; and
|
(ii)
|
the audited financial statements of the Borrower for that financial year.
|
(b)
|
The Borrower shall use its reasonable endeavours to supply to the Facility Agent as soon as the same become available the audited financial statements (consolidated if appropriate) of the Charterer for that financial year together with any information concerning the Charterer which the Lenders may reasonably require.
|
(c)
|
The Borrower shall supply to the Facility Agent as soon as the same become available, but in any event within ninety (90) days after the end of each financial half year of each of its financial years the unaudited financial statements of the Borrower and the unaudited consolidated financial statements of each of the Pre-Completion Guarantor Group and the Final Repayment Guarantor Group for that financial half year.
|
19.2
|
Provision and contents of Compliance Certificate
|
(a)
|
The Borrower shall supply a Compliance Certificate to the Facility Agent with each set of the Borrower’s Semi-Annual Financial Statements and each set of the Borrower’s Annual Financial Statements.
|
(b)
|
Each Guarantor shall supply to the Facility Agent:
|
(i)
|
together with each set of that Guarantor’s Semi-Annual Financial Statements, a Compliance Certificate (each a “
Semi-Annual Compliance Certificate
”); and
|
(ii)
|
together with each set of that Guarantor’s Annual Financial Statements, either:
|
(A)
|
a revised Compliance Certificate, if there are material differences between such Annual Financial Statements and the most recent Semi-Annual Financial Statements of such Guarantor which would result in a change to the confirmations relating to the financial covenants in clause 20 (
Financial covenants
) made by such Guarantor in its most recent Semi-Annual Compliance Certificate; or
|
(B)
|
a written confirmation that there are no material differences between such Annual Financial Statements and the most recent Semi-Annual Financial Statements of such Guarantor which would result in a change to the confirmations relating to the financial covenants in clause 20
(Financial covenants
) made by such Guarantor in its most recent Semi-Annual Compliance Certificate.
|
(c)
|
Each Compliance Certificate shall, amongst other things, set out (in reasonable detail) computations as to compliance with clause 20 (
Financial covenants
).
|
(d)
|
Each Compliance Certificate shall be signed by the finance director or chief financial officer of the relevant Obligor or, in his absence, by two (2) directors of the relevant Obligor.
|
19.3
|
Requirements as to financial statements
|
(a)
|
The Borrower shall procure that each set of Annual Financial Statements and Semi-annual Financial Statements includes a profit and loss account, a balance sheet and a cashflow statement and that, in addition:
|
(i)
|
each set of Annual Financial Statements shall be audited by the Auditors; and
|
(ii)
|
each set of Semi-annual Financial Statements includes an income statement and a cashflow forecast in respect of the Borrower and the Pre-Completion Guarantor Group and the Final Repayment Guarantor Group relating to the six (6) month period commencing at the end of the relevant financial half year.
|
(b)
|
Each set of financial statements delivered pursuant to clause 19.1 (
Financial statements
) (other than 19.1(b)) shall:
|
(i)
|
be prepared in accordance with applicable GAAP;
|
(ii)
|
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 Borrower, the Pre-Completion Guarantor Group and the Final Repayment Guarantor Group (as the case may be) as at the date as at which those financial statements were drawn up;
|
(iii)
|
in the case of Annual Financial Statements, not be the subject of any qualification in the Auditors’ opinion;
|
(iv)
|
in the case of Annual Financial Statements (and the Semi-annual Financial Statements of the Borrower, the Pre-Completion Guarantor Group and the Final Repayment Guarantor Group), be in English.
|
(c)
|
The Borrower shall procure that each set of financial statements delivered pursuant to clauses 19.1(a) and 19.1(c) shall be prepared using applicable 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 Facility Agent that there has been a change in applicable GAAP or the accounting practices. In such event, the Facility Agent may request the Borrower to provide clarifications or deliver to the Facility Agent sufficient information to enable the Facility Agent to determine whether clause 20 (
Financial covenants
) has been complied with.
|
(d)
|
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.
|
19.4
|
Year-end
|
19.5
|
Information: miscellaneous
|
(a)
|
at the same time as they are dispatched:
|
(i)
|
copies of all documents dispatched by either of the Guarantors to its shareholders generally (or any class of them) (in relation to extraordinary matters (unless details of such matters have been published on either Guarantors’ respective websites));
|
(ii)
|
copies of all documents dispatched by either of the Guarantors or any Obligor to its creditors generally (or any class of them);
|
(b)
|
promptly upon becoming aware of them, (i) the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any Obligor, and which, if adversely determined, would be reasonably likely to have a Material Adverse Effect and (ii) any other claim, action, suit, proceedings or investigation against any of the Borrower, the Sponsors or the Guarantors with respect to Sanctions;
|
(c)
|
promptly, such information as the Facility Agent may reasonably require about the Charged Property and compliance of the Obligors with the terms of any Security Documents;
|
(d)
|
promptly, if any Obligor becomes a Restricted Party;
|
(e)
|
promptly, on request by the Facility Agent, any available drafts of the Annual Financial Statements and/or the Semi-annual Financial Statements (and if no draft is at that time available the Borrower shall not be obliged to supply the same unless and until a draft is available);
|
(f)
|
promptly on request, such further information regarding the financial condition, assets and operations of any Obligor as any Finance Party, through the Facility Agent, may reasonably request, except to the extent that disclosure of such information would breach any law, regulation or stock exchange requirement or listing rule;
|
(g)
|
together with each set of Semi-annual Financial Statements required to be provided by the Borrower pursuant to clause 19.1(c), semi-annual operating reports detailing operating uptime and down time for scheduled and unscheduled maintenance of the Vessel during that period; and
|
(h)
|
promptly following any changes to the authorised signatories of the Borrower in relation to any of the Project Accounts and/or a Utilisation Request, notice of such changes in the form of a certificate signed by a director or company secretary of the Borrower together with specimen signatures of any new signatory.
|
19.6
|
Change in law
|
19.7
|
Sufficient copies
|
19.8
|
“Know your customer” checks
|
(a)
|
Each Obligor shall promptly upon request by the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender, including any prospective new Lender) in order for the Facility Agent, Lender or prospective new Lender to satisfy any “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
(b)
|
Each Finance Party shall promptly upon the request of the Facility Agent or the Security Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent or the Security Agent (for itself) in order for it to carry out and be satisfied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
19.9
|
Notification of defaults
|
(a)
|
Each Guarantor shall promptly inform the Facility Agent or procure that the Borrower informs the Security Agent of:
|
(i)
|
any material occurrence of which it becomes aware which might reasonably be expected to have a Material Adverse Effect;
|
(ii)
|
any Default under this Agreement and any other default under the other Transaction Documents of which it becomes aware and will from time to time, if so requested by the Security Agent, confirm to the Security Agent in writing that, save as otherwise stated in such confirmation, no Default has occurred and is continuing.
|
(b)
|
The Borrower shall notify the Facility Agent of (a) any Default and/or (b) any material breach of the Charter and/or the O&M Contract and/or the Golar Management Norway Management Agreement by the Borrower, the O&M Contractor, Golar Management Norway or the Charterer (and the steps, if any, being taken to remedy such Default or such breach) promptly upon any Obligor becoming aware that a notification has already been provided by another Obligor).
|
19.10
|
Original Charter
|
(a)
|
written monthly updates on the progress of the negotiations of such extension with the Charterer; and
|
(b)
|
monthly business strategy updates on potential chartering options being considered by the Borrower with other potential charterers in the event that negotiations of such extension with the Charterer are unsuccessful.
|
20
|
Financial covenants
|
20.1
|
Borrower
|
20.2
|
Pre-Completion Guarantor
|
(a)
|
the aggregate value of the Pre-Completion Guarantor Group’s Free Liquid Assets is not less than $25,000,000; and
|
(b)
|
the ratio of Current Assets to Current Liabilities of the Pre-Completion Guarantor Group (on a consolidated basis) shall be not less than 1:1; and
|
(c)
|
the Tangible Net Worth of the Pre-Completion Guarantor Group shall be not less than $250,000,000.
|
20.3
|
Final Repayment Guarantor
|
(a)
|
the aggregate value of the Final Repayment Guarantor Group’s Free Liquid Assets is not less than $30,000,000; and
|
(b)
|
the Guarantor Net Debt for any Relevant Period shall be less than 6.5 times the Final Repayment Guarantor Group’s EBITDA.
|
(c)
|
the Tangible Net Worth of the Final Repayment Guarantor shall be not less than $124,000,000.
|
20.4
|
Financial testing
|
21
|
General undertakings
|
21.1
|
Use of proceeds
|
(a)
|
The proceeds of Utilisations will be used exclusively for the purposes specified in clause 3 (
Purpose
).
|
(b)
|
The Borrower shall not directly or indirectly (by authorising or procuring any person acting on its behalf to do so) use or permit to be used all or any part of the proceeds of the Facilities or lend, contribute or otherwise make available all or any part of the proceeds of the Facilities:
|
(i)
|
to any person, company or entity with the knowledge that such actions would be for the purpose or would have the effect, of financing the activities or business of any Restricted Party;
|
(ii)
|
in any other manner that would reasonably be expected to result in the Borrower or any Lender being in breach of any Sanctions (if and to the extent applicable to any of them) or becoming a Restricted Party.
|
(c)
|
The Borrower will not use the proceeds of the Facility for any purpose which would breach the UK Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other jurisdictions, in each case as applicable to it.
|
21.2
|
Authorisations
|
(a)
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b)
|
supply certified copies to the Facility Agent of any Consent required under any law or regulation of a Relevant Jurisdiction to:
|
(i)
|
enable it to perform its obligations under the Transaction Documents;
|
(ii)
|
ensure the legality, validity, enforceability or admissibility in evidence of any Transaction Document; and
|
(iii)
|
carry on its business where failure to do so would have a Material Adverse Effect.
|
21.3
|
Pari passu
|
21.4
|
Compliance with laws
|
(a)
|
The Borrower, the O&M Contractor and Golar Management Norway will comply in all respects with all laws and regulations (including Environmental Laws and Environmental Standards) to which it may be subject.
|
(b)
|
The Borrower shall ensure that it is not designated as a Restricted Party.
|
(c)
|
The Borrower shall, and shall ensure that each of the O&M Contractor and Golar Management Norway shall, conduct its businesses in compliance with the UK Bribery Act 2010 (to the extent that it is subject thereto) and any other anti-corruption law to which it is subject, if failure so to comply will or is reasonably likely to materially and adversely impair its ability to perform its obligations under the Transaction Documents.
|
21.5
|
Taxation
|
(a)
|
The Borrower shall pay and discharge all Tax imposed upon it or its assets within such time period as may be allowed by law without incurring penalties unless and only to the extent that:
|
(i)
|
such payment is being contested in good faith;
|
(ii)
|
adequate reserves are being maintained for those Tax and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Facility Agent under clause 19.1 (
Financial statements
); and
|
(iii)
|
such payment can be lawfully withheld.
|
(b)
|
The Borrower 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.
|
(c)
|
The Borrower shall, promptly upon becoming aware of the same, notify the Facility Agent of the imposition or the proposed levy of any Tax (by withholding or otherwise) on any payment to be made by the Borrower or any other Obligor under this Agreement or any other Finance Document.
|
21.6
|
Change of business
|
21.7
|
Merger
|
21.8
|
Further assurance
|
(a)
|
Each Obligor shall promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Facility Agent may reasonably specify (and in such form as the Facility Agent may reasonably require in favour of the Security Agent or its nominee(s)):
|
(i)
|
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, fiduciary, pledge, 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 or the Finance Parties provided by or pursuant to the Finance Documents or by law;
|
(ii)
|
to confer on the Security Agent or on the Finance Parties Security Interests over any Charged Property 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; and/or
|
(iii)
|
after an Event of Default that is continuing, to facilitate the realisation of the assets which are, or are intended to be, the subject of the Security Documents.
|
(b)
|
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 or the Finance Parties by or pursuant to the Finance Documents including but not limited to:
|
(i)
|
the registration of the Fiduciary Assignments with the Fiduciary Registration Registry (as evidenced by the issuance of fiducia certificate) and shareholder register of the Borrower as relevant;
|
(ii)
|
the registration of the Mortgage with the relevant vessel mortgage Registration Office as evidenced by issuance of mortgage vessel certificate;
|
(iii)
|
to the extent applicable, the reporting of the execution and the filing of this Agreement
with the Bank of Indonesia the Ministry of Finance and the Team for the Co‑ordination of the Management of Offshore Commercial Loans;
|
(iv)
|
the notices and acknowledgment required under the Fiduciary Assignments have been sent to and obtained from relevant counterparties; and
|
(v)
|
the payment of nominal stamp tax in the amount of Rp6,000 on the Finance Documents to which the Borrower or PSU is a party.
|
(c)
|
The Finance Documents are executed in the English language.
The Parties confirm that they fully understand and agree to be bound by the terms and conditions of the Finance Documents notwithstanding that the Finance Documents are prepared and executed in English.
|
(d)
|
In compliance with Law No. 24 of 2009 regarding National Flag, Language, Emblem and Anthem, the Borrower agrees, at its own cost, to translate and to ensure that the relevant Obligors executes:
|
(i)
|
a Bahasa Indonesia version of the Transaction Documents listed in Part A of Schedule 12
(List of Translated Documents)
to this Agreement (to which an Indonesian entity is a party) in the agreed form within 180 days after the date of the respective Transaction Documents or any other date as agreed between the Borrower and the Facility Agent; and
|
(ii)
|
a Bahasa Indonesia version of the Transaction Documents listed in Part B of Schedule 12
(List of Translated Documents)
to this Agreement (to which an Indonesian entity is a party) in the agreed form as a conditions precedent to Utilisation of the First Advance.
|
(e)
|
Subject to paragraph (d) above, the Borrower undertakes, at its own cost, to translate and arrange for the relevant Obligor to execute each Transaction Document to which an Indonesian entity is a party in Bahasa Indonesia in the agreed form if and as may be required by the implementation of regulation of Law No. 24, dated 9 July 2009, regarding Flag, Language, National Emblem, and National Anthem (when issued ) for such Transaction Document to be valid, legal and binding within the period of 180 days from the date of implementation of such implementing regulation or such other period as required by such implementing regulations (as the case maybe), whichever is the earlier provided that this undertaking shall not apply to Transaction Documents that have been terminated, cancelled or which the Security Agent and the Borrower agree to be no longer relevant to the Project or the financing provided under this Agreement.
|
(f)
|
Each of the Borrower, the Sponsors and the Guarantors further agree that: (i) the Bahasa Indonesia version of the Transaction Documents, if executed, will be deemed to be effective from the date the English language version was executed; and (ii) in the event of inconsistency between the Bahasa Indonesia version and the English version, the English version shall prevail and the relevant Bahasa Indonesia text will be deemed to be amended to conform with and to make the relevant Indonesian text consistent with the relevant English text.
|
(g)
|
Each of the Borrower, the Sponsors and the Guarantors further agree and undertake that not to (or allow or assist any other party to), in any manner or forum, challenge the validity of, or raise or file any objection to, this Agreement or any other Transaction Document or the transactions contemplated by any Transaction Document on the basis of any failure to comply with Law 24 or its implementing regulations or other similar laws and regulations applicable in Indonesia.
|
21.9
|
No prejudicial action
|
21.10
|
Negative pledge in respect of Charged Property
|
21.11
|
Environmental matters
|
(a)
|
The Borrower will notify the Facility Agent as soon as reasonably practicable of:
|
(i)
|
any Spill relating to the Project;
|
(ii)
|
any Environmental Claim being made against any Obligor (or any of their respective officers) in respect of the Vessel and/or the Mooring and/or the Project or against the Vessel and of any Environmental Incident which may give rise to such a claim and will keep the Facility Agent 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; and
|
(iii)
|
the storage, treatment, importation, exportation, transportation, processing, manufacture, usage, collection, sorting or production of any Pollutant which is carried out in circumstances which are likely to result in an Environmental Claim against any Obligor or otherwise in respect of the Vessel and/or the Mooring and/or the Project.
|
(b)
|
Environmental Laws and Environmental Standards (and any consents, licences or approvals obtained under them) applicable to the Vessel and the Mooring will be complied with at all times and will not be breached in any way.
|
(c)
|
The Borrower will duly and punctually perform, comply with and observe each of its obligations under the Environmental Management Plan, and shall, subject to receiving consent from the Charterer if applicable, provide the Facility Agent with all environmental monitoring reports prepared pursuant to the Environmental Management Plan on a semi-annual basis.
|
21.12
|
Environmental audits
|
21.13
|
Action of Borrower
|
21.14
|
Subordinated Loan
|
(a)
|
The Borrower shall ensure (and procure) that any rights which a Sponsor or a Shareholder (or any other member of the Pre-Completion Guarantor Group) has or may have against the Borrower in respect of any Subordinated Loan (or any other inter-company loan made available to the Borrower) shall be fully subject and subordinate to the rights of the Finance Parties under any of the Finance Documents.
|
(b)
|
The Borrower agrees that following the occurrence of a Dividend Restriction Event, the Borrower shall not repay and shall procure that no Sponsor or Shareholder shall demand or accept repayment of any such loans in each case without the prior written consent of the Facility Agent acting on the instructions of the Lenders.
|
(c)
|
No Sponsors or Shareholder shall take any steps against the Borrower to recover any moneys outstanding in respect of any Subordinated Loan (or any other inter-company loan made available to the Borrower).
|
(d)
|
The Borrower agrees that the provisions of this clause 21.14 shall extend to any inter-company loans made available by any Subsidiary of a Sponsor to the Borrower and the Borrower shall procure compliance by any such Subsidiary with the provisions of this clause as if reference to the relevant Sponsor was a reference to that Subsidiary.
|
22
|
Sponsor Undertakings
|
22.1
|
Shares in the Borrower
|
(a)
|
Each of the Sponsors covenants and undertakes that:
|
(i)
|
the Sponsors will, together, or, as the case may be, the Pre-Completion Guarantor will, directly or indirectly, legally and beneficially, own one hundred per cent. (100%) of the shares in the Borrower unless a Replacement Shareholder which is an Approved Shareholder is appointed to replace PSU pursuant to and in accordance with clause 29.17 (
Replacement shareholder
);
|
(ii)
|
the Final Repayment Guarantor will retain management control over the Borrower throughout the Facility Period; and
|
(iii)
|
they will not change or permit any change in the shareholding of the Borrower from that specified in paragraphs (i) and (ii) above other than:
|
(A)
|
in respect of the shares owned by Golar Singapore, to any wholly owned Subsidiary of the Final Repayment Guarantor (provided that such Subsidiary has entered into an accession deed (or such other documentation as may be required) whereby such Subsidiary assumes all of Golar Singapore’s obligations under the Finance Documents and such other amendments are made to the Finance Documents and the other Transaction Documents so as to ensure that such Subsidiary assumes all of Golar Singapore’s obligations under such documents (to the satisfaction of the Lenders, acting reasonably); or
|
(B)
|
in respect of the shares owned by PSU, to a Replacement Shareholder which is an Approved Shareholder and is appointed pursuant to and in accordance with clause 29.17 (
Replacement shareholder
).
|
(C)
|
with the prior written consent of the Facility Agent (acting on the instructions of the Lenders).
|
(b)
|
The Sponsors each covenant and undertake to maintain the Borrower as a special purpose company for the purposes of the Project.
|
22.2
|
Operation of the Vessel and the Mooring
|
(a)
|
Each of the Sponsors shall exercise their voting powers in the Borrower (both as shareholder of the Borrower and, through its representation on the board of directors of the Borrower, as a director of the Borrower) so as to ensure that:
|
(i)
|
(subject to paragraph (b) below) the Borrower remains responsible for all technical and operational management of the Vessel and the Mooring in accordance with the Charter (unless the consent of the Facility Agent has been obtained in accordance with clause 24.4(b) (
Operation and Maintenance
)); and
|
(ii)
|
the O&M Contractor and Golar Management Norway remain the operators of the Vessel and the Mooring in accordance with the O&M Contract, the Golar Management Norway Management Agreement and the Charter (unless the consent of the Facility Agent has been obtained in accordance with clause 24.4(b) (
Operation and Maintenance
) or a replacement operator which is an Approved Operator is appointed pursuant to clause 24.4(c) (
Operation and Maintenance
).
|
(b)
|
Subject to clause 24.4(c) (
Operation and Maintenance
), the Sponsors shall ensure that the Vessel and the Mooring is at all times operated and maintained by the O&M Contractor and Golar Management Norway in accordance with the Charter and in accordance with good industry practice associated with the operation and maintenance of vessels similar to the Vessel or, as the case may be, of equipment similar to the Mooring, in type and function.
|
(c)
|
Each of the Sponsors undertakes to use all reasonable endeavours to ensure that the Borrower directly or indirectly meets all of its obligations (including, but not limited to, any payment obligations) under any Charter Document, the O&M Contract and the Golar Management Norway Management Agreement.
|
22.3
|
Transaction Documents
|
22.4
|
Compliance with Laws
|
(a)
|
Each of the Sponsors will comply in all respects with all laws and regulations (including Environmental Laws and Environmental Standards) which may be material to the due performance by it of its obligations in respect of the Project (to the extent that any failure to comply with such obligation would have a Material Adverse Effect) and under the Transaction Documents to which it is a party.
|
(b)
|
Each of the Sponsors shall ensure that it is not designated as a Restricted Party.
|
(c)
|
Each of the Sponsors shall conduct its businesses in compliance with the UK Bribery Act 2010 (to the extent it is subject thereto) and any other anti-corruption law to which it is subject, if failure so to comply will or is reasonably likely to materially and adversely impair its ability to perform its obligations under the Transaction Documents.
|
22.5
|
Information Undertaking
|
23
|
Guarantor Undertakings
|
23.1
|
Shares in the Borrower
|
(a)
|
Each Guarantor covenants and undertakes that:
|
(i)
|
the Sponsors will together, or, as the case may be, the Pre-Completion Guarantor will, directly or indirectly, legally and beneficially, own one hundred per cent. (100%) of the shares in the Borrower unless a Replacement Shareholder which is an Approved Shareholder is appointed to replace PSU pursuant to and in accordance with clause 29.17 (
Replacement shareholder
);
|
(ii)
|
PSU will directly, legally and beneficially, own not less than fifty-one per cent (51%) of the shares in the Borrower unless a Replacement Shareholder which is an Approved Shareholder is appointed to replace PSU pursuant to and in accordance with clause 29.17 (
Replacement shareholder
);
|
(iii)
|
subject to clause 22.1(a)(iii)(A), Golar Singapore will directly, legally and beneficially, own not less than forty-nine per cent (49%) of the shares in the Borrower;
|
(iv)
|
the Final Repayment Guarantor will retain management control over the Borrower throughout the Facility Period;
|
(v)
|
subject to clause 22.1(a)(iii) it will not change or permit any change in the shareholding of the Borrower from that specified in paragraphs (i), (ii) and (iii) above without the prior written consent of the Facility Agent (acting on the instructions of the Lenders) unless a Replacement Shareholder which is an Approved Shareholder is appointed to replace PSU pursuant to and in accordance with clause 29.17 (
Replacement shareholder
); and
|
(vi)
|
the Pre-Completion Guarantor will retain management control over the Final Repayment Guarantor throughout the Facility Period.
|
(b)
|
Each Guarantor covenants and undertakes to maintain the Borrower as a special purpose company for the purposes of the Project.
|
23.2
|
Operation of the Vessel and the Mooring
|
(a)
|
Each Guarantor shall ensure that:
|
(i)
|
the O&M Contractor and Golar Management Norway (or another Approved Operator, if a replacement operator which is an Approved Operator is appointed pursuant to clause 24.4(c) (
Operation and Maintenance
)) remain the operators of the Vessel and the Mooring in accordance with the O&M Contract and the Golar Management Norway Management Agreement and remain responsible for all technical and operational management of the Vessel and the Mooring in accordance with the O&M Agreement, the Golar Management Norway Management Agreement and the Charter (unless the consent of the Facility Agent has been obtained in accordance with clause 24.4(b) (
Operation and Maintenance
));
|
(ii)
|
that the Vessel and the Mooring is at all times operated and maintained by the O&M Contractor and Golar Management Norway (or another Approved Operator, if a replacement operator which is an Approved Operator is appointed pursuant to clause 24.4(c) (
Operation and Maintenance
)) in accordance with the Charter, the O&M Contract and the Golar Management Norway Management Agreement and in accordance with good industry practice associated with the operation and maintenance of vessels similar to the Vessel or, as the case may be, of equipment similar to the Mooring, in type and function (unless the consent of the Facility Agent has been obtained in accordance with clause 24.4(b) (
Operation and Maintenance
)); and
|
(iii)
|
the Borrower maintains all licenses necessary for ownership and operation of the Vessel and the Mooring in Indonesia.
|
23.3
|
Transaction Documents
|
23.4
|
Compliance with Laws
|
(a)
|
Each Guarantor will comply in all respects with all laws and regulations (including Environmental Laws) which may be material to the due performance by it of its obligations in respect of the Project and under the Transaction Documents to which it is a party (in each case to the extent that any failure to comply with such obligation would have a Material Adverse Effect).
|
(b)
|
Each Guarantor shall ensure that it is not designated as a Restricted Party.
|
(c)
|
Each Guarantor shall conduct its businesses in compliance with the UK Bribery Act 2010 (to the extent it is subject thereto) and any other anti-corruption law to which it is subject, if failure so to comply will or is reasonably likely to materially and adversely impair its ability to perform its obligations under the Transaction Documents.
|
23.5
|
Performance Undertaking
|
(a)
|
In consideration of the Lenders and the Hedging Banks making or continuing loans or advances to, or otherwise giving credit or granting banking and interest hedging facilities to, the Borrower pursuant to the Finance Documents, each Guarantor, jointly and severally, irrevocably and unconditionally, covenants and undertakes that it will procure (a) Final Acceptance in accordance with the terms of the Charter and (b) from the date of Final Acceptance and up to and including the date falling twelve (12) months thereafter (or such later date on which the Facility Agent (acting on the instructions of the Lenders) is satisfied (acting reasonably) that each of the matters set out in this clause 23.5 remain fully satisfied), the performance of the Vessel and the Mooring in accordance with the terms of the Charter and, in particular, without prejudice to the generality of the foregoing, each Guarantor shall (jointly and severally), subject to clause 23.9 (
Release
), ensure that the Vessel and the Mooring is capable of performing in accordance with its Specifications and shall meet the technical, operational and performance requirements of the Charter, such that:
|
(i)
|
there is no material reduction in the daily Total Charter Rate; and
|
(ii)
|
the Borrower is not in material breach of its obligations under the Charter which would be reasonably likely to result in an actual or potential termination of the Charter; and
|
(iii)
|
the Charterer shall not terminate (nor is entitled to terminate) the Charter (or the chartering of the Vessel and the Mooring thereunder),
|
(b)
|
To the extent that any defects adversely affecting the Vessel’s and/or the Mooring’s performance in accordance with the requirements of the Charter are discovered in the Vessel and/or the Mooring during the period from Final Acceptance up to (and including) the date falling (12) months thereafter (or such later date on which the Facility Agent (acting on the instructions of the Lenders) is satisfied (acting reasonably) that each of the matters set out in this clause 23.5 remain fully satisfied), each Guarantor shall (jointly and severally), subject to clause 23.9 (
Release
), ensure that such defects are rectified so that the terms of this clause 23.5 (
Performance Undertaking
) are fully complied with.
|
23.6
|
Shortfall Undertaking
|
(a)
|
In consideration of the Lenders and the Hedging Banks making or continuing loans or advances to, or otherwise giving credit or granting banking and interest hedging facilities to, the Borrower pursuant to the Finance Documents, each Guarantor, jointly and severally, irrevocably and unconditionally undertakes to the Security Agent (as trustee for the Finance Parties) and the other Finance Parties that if at any time either (a) the Vessel FM Termination Fee received by the Borrower is insufficient to discharge all of the Borrower’s obligations under the Finance Documents or (b) the Borrower is unable for any reason to pay the Charterer any liquidated damages payable in accordance with the Charter, it shall promptly on demand pay that amount (or the shortfall in that amount) as if it was the principal obligor.
|
(b)
|
Such liabilities shall, without limitation, include interest at the rate specified in clause 8.3 (
Default Interest
) (as well after as before judgment) from (and including) the date on which the relevant payment obligations specified in clause 23.6(a) become due and payable up to (but excluding) the date of actual payment of the relevant amount by the Guarantors, together with all legal and other costs, charges and expenses on a full and unqualified indemnity basis which may be incurred by the Finance Parties or any of them in relation to any such obligations.
|
(c)
|
Each Guarantor agrees, on a joint and several basis, that if any purported payment obligation of the Borrower which would have been the subject of this clause 23.6 had it been valid and enforceable is not or ceases to be valid or enforceable against the Borrower on any ground whatsoever whether or not known to the Borrower, the Security Agent or any Finance Party (including, without limitation, any irregular exercise or absence of any corporate power or lack of authority of, or breach of duty by, any person purporting to act on behalf of the Borrower or any legal or other limitation, whether under the Limitation Acts or otherwise or any disability or Incapacity or any change in the constitution of the Borrower) the Guarantors shall nevertheless be liable to the Security Agent and each of the other Finance Parties in respect of that purported payment obligation as set out under (a) above only, as if the same were fully valid and enforceable and the Guarantor and the Final Repayment Guarantor were the principal debtors in respect thereof. Each Guarantor hereby agrees, on a joint and several basis to keep the Security Agent and each of the other Finance Parties indemnified on demand and on a full indemnity basis for and against all costs, Losses and liabilities arising from any failure of the Borrower to perform or discharge any such purported payment obligation as set out under (a) above only.
|
23.7
|
Enforcement
|
23.8
|
Golar Energy
|
(a)
|
remedy any Insolvency Event (as defined in the Charter) in respect of Golar Energy within the grace period specified in clause 29.1(a) of the Charter; and
|
(b)
|
provide adequate replacement security for the Indonesian Owner Guarantee (as defined in the Charter) if the Indonesian Owner Guarantee becomes unenforceable within the grace period specified in clause 29.1(b) of the Charter.
|
23.9
|
Release
|
(a)
|
On the Guarantee Release Date, the obligations of the Pre-Completion Guarantor under this clause 23 (other than clause 23.5 (
Performance Undertaking
), clause 23.6 (
Shortfall Undertaking
), clause 23.7
(Enforcement)
, clause 23.8 (
Golar Energy
)) and clause 23.1(a)(vi) shall cease, but without prejudice to any accrued and undischarged obligations of the Pre-Completion Guarantor under this Agreement.
|
(b)
|
On the final date of the Performance Period, the obligations of the Guarantors under clause 23.5 (
Performance Undertaking
) shall cease, but without prejudice to any accrued and undischarged obligations of the Guarantors under clause 23.5 (
Performance Undertaking
) (or otherwise under this Agreement).
|
23.10
|
Continuing Undertaking
|
23.11
|
Reinstatement
|
(a)
|
the liability of the Guarantors under clause 23.6 (
Shortfall Undertaking
) shall continue as if the payment, discharge, avoidance or reduction had not occurred; and
|
(b)
|
the Security Agent (as trustee for the Finance Parties) shall be entitled to recover the value or amount of that security or payment from the Guarantors (or either of them), as if the payment, discharge, avoidance or reduction had not occurred.
|
23.12
|
Waiver of defences
|
(a)
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b)
|
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;
|
(c)
|
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 Interest;
|
(d)
|
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;
|
(e)
|
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 Interest;
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g)
|
any insolvency or similar proceedings.
|
23.13
|
Immediate recourse
|
23.14
|
Appropriations
|
(a)
|
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 the Guarantors shall not be entitled to the benefit of the same; and
|
(b)
|
hold in an interest-bearing suspense account any moneys received from either of the Guarantors or on account of their liability under this clause 23.
|
23.15
|
Deferral of 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; and/or
|
(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.
|
23.16
|
Additional security
|
23.17
|
Information undertaking
|
23.18
|
Joint and several liability
|
(a)
|
Each Guarantor’s obligations under clause 23.5 (
Performance Undertaking
) and clause 23.6 (
Shortfall Undertaking
) are joint and several. Each Guarantor irrevocably and unconditionally, jointly and severally with the other Guarantor:
|
(i)
|
acknowledges and agrees that, up to (and including) throughout the Facility Period, it is a principal and original debtor in respect of all amounts due from the Guarantors under or in connection with such clauses; and
|
(ii)
|
agrees with each Finance Party immediately on demand to indemnify each Finance Party against any cost, loss or liability suffered by that Finance Party if any obligation of another Guarantor under those clauses (or either of them) is or becomes unenforceable, invalid or illegal for any reason. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover.
|
24
|
Project undertakings
|
24.1
|
Project Agreements
|
(a)
|
The Borrower shall, and shall procure that the O&M Contractor and Golar Management Norway shall, duly and punctually perform, comply with and observe each of its respective obligations under each Project Agreement to which it is party and use its reasonable endeavours to ensure that each other party to them performs their obligations under the Project Agreements.
|
(b)
|
The Borrower shall, and shall procure that the O&M Contractor and Golar Management Norway shall, maintain and enforce its respective rights under the Project Agreements and ensure that each other party maintains and enforces its material rights under the Project Agreement to which they are a party.
|
(c)
|
If the Borrower and/or the O&M Contractor and/or Golar Management Norway has the right to terminate a Project Agreement, the Borrower shall, and shall procure that the O&M Contractor and Golar Management Norway shall, (a) not exercise that right without the written consent of the Facility Agent (acting on the instructions of the Lenders) and (b) exercise that right if so directed by the Facility Agent (acting on the instructions of the Lenders).
|
(d)
|
The Borrower shall not (and shall procure that no other Obligor shall), without the prior written consent of the Facility Agent (acting on the instructions of the Lenders), permit or agree or consent to:
|
(i)
|
any withdrawal of the Vessel from service under the Charter or the O&M Contract or the Golar Management Norway Management Agreement or any similar action;
|
(ii)
|
save for Permitted Amendments, any amendment, variation or waiver to, or of any terms of, or any release of any party under, any of the Charter Documents or any other Project Agreement (including the Vessel Specifications and the Mooring Specifications) or any other agreement relating to the Project;
|
(iii)
|
save for Permitted Amendments, any variation or series of variations to the Works or any changes to the design or construction of the Project which (either alone or together with all other variations and changes) would or is reasonably likely to materially alter the nature of the Project, the manner in which it operates or the risk profile of the Project;
|
(iv)
|
suspend or reject all or any part of the Works;
|
(v)
|
the determination, rescission, suspension, waiver, repudiation, revocation, annulment or cancellation of the whole of, or any material provision of, a Project Agreement, an Environmental Licence, a Project Authorisation or any other agreement relating to the Project;
|
(vi)
|
except as expressly required under the Finance Documents, the assignment or transfer of a Project Agreement, Environmental Licence or Project Authorisation;
|
(vii)
|
any other party to a Project Agreement assigning or transferring that party's rights or obligations under that Project Agreement; or
|
(viii)
|
the termination of a Project Agreement (unless directed to do so in accordance with clause (c) above).
|
(e)
|
The Borrower shall ensure that throughout the Facility Period:
|
(i)
|
the obligations of the O&M Contractor under the O&M Contract and Golar Management Norway under the Golar Management Norway Management Agreement shall be in all material respects the same as the Borrower’s operation and maintenance obligations pursuant to the Charter or the Borrower will otherwise procure that such obligations are met;
|
(ii)
|
the Operating Expenses payable for any period under the O&M Contract and the Golar Management Norway Management Agreement shall not exceed the corresponding Operating Cost Element payable under the Charter for the same period; and
|
(iii)
|
the O&M Contract and the Golar Management Norway Management Agreement contains the agreement of each of the O&M Contractor and Golar Management Norway that it consents to the payment of the O&M Hire in the manner set out in 24.4(b).
|
24.2
|
Project Authorisations
|
(a)
|
to enable it to lawfully enter into, exercise its rights and comply with its respective obligations under the Transaction Documents to which it is a party; and
|
(b)
|
to carry out the Project in accordance with the Project Agreements,
|
(c)
|
and shall at all times comply with the requirements such Project Authorisations.
|
24.3
|
Environmental Matters
|
(a)
|
The Borrower shall, and shall procure that the O&M Contractor and Golar Management Norway shall, ensure that it has each Environmental Licence necessary to carry out the Project in accordance with the Project Agreements and that it maintains, and complies with the terms of, such Environmental Licences.
|
(b)
|
The Borrower shall, and shall procure that the O&M Contractor and Golar Management Norway shall, comply with, and carry out the Project in accordance with, all applicable Environmental Laws, the Environmental Standards and the Environmental Management Plan.
|
(c)
|
The Borrower shall provide full details to the Facility Agent and the Technical Adviser of all environmental tests and studies carried out in relation to the Project and the Site.
|
(d)
|
The Borrower shall, and shall procure that the O&M Contractor and Golar Management Norway shall, take all action necessary to prevent the Vessel and/or the Mooring from disposing of any Pollutant at the Site.
|
24.4
|
Operation and Maintenance
|
(a)
|
The Borrower shall, and shall ensure that the O&M Contractor and Golar Management Norway (or another Approved Operator, if a replacement operator which is an Approved Operator is appointed pursuant to clause 24.4(c) (
Operation and Maintenance
)) shall, ensure that throughout the Facility Period the Project is at all times operated and maintained in accordance with the Project Agreements and appropriate industry standards.
|
(b)
|
The Borrower shall further ensure that throughout the Facility Period:
|
(i)
|
subject to paragraph (c) below, the O&M Contractor and Golar Management Norway will be contracted to carry out all technical and operational management of the Vessel and the Mooring in accordance with the O&M Contract and the Golar Management Norway Management Agreement and will not otherwise sub-contract, assign or delegate any of its operation and maintenance obligations under the Charter to any other party (other than an Approved Operator) without the written consent of the Facility Agent (acting on the instructions of the Lenders);
|
(ii)
|
the O&M Hire payable for any given period under the O&M Contract and/or the Golar Management Norway Management Agreement shall not exceed the corresponding Projected Operating Expenses set out in the latest Project Budget Statement for the same period.
|
(c)
|
The Borrower further undertakes that there shall be no change in the operator of the Vessel and/or the Mooring (from the O&M Contractor and/or Golar Management Norway) without the consent of the Facility Agent (acting on the instructions of the Lenders) unless:
|
(i)
|
the O&M Contractor is designated as a Restricted Party and the Lenders have requested that it is replaced as operator;
|
(ii)
|
the O&M Contractor is in breach of its obligations under the O&M Contract and the Sponsors wish to replace it as operator of the Vessel and/or the Mooring;
|
(iii)
|
Golar Management Norway is in breach of its obligations under the Golar Management Norway Management Agreement and the Sponsors wish to replace it as operator of the Vessel and/or the Mooring;
|
(iv)
|
the O&M Contractor or Golar Management Norway becomes a Restricted Party and the Facility Agent requests that it is replaced as operator of the Vessel and/or the Mooring;
|
(v)
|
the Charterer has approved, in accordance with the terms of the Charter or, following an Event of Default, the Letter of Quiet Enjoyment, the appointment of a replacement operator (the
Replacement Operator
) to carry out the operation and maintenance services under the Charter or the O&M Contract or the Golar Management Norway Management Agreement (as the case may be);
|
(vi)
|
the Replacement Operator is an Approved Operator;
|
(vii)
|
the replacement contract (the
Replacement Contract
) to be entered into between the Replacement Operator and the Borrower is on similar terms to the O&M Contract or, as the case may be, the Golar Management Norway Management Agreement or other terms acceptable to the Lenders and the Charterer;
|
(viii)
|
the Lenders can satisfy their Know Your Customer (“KYC”) requirements in respect of the Replacement Operator;
|
(ix)
|
the Replacement Operator has entered into an accession deed (or such other documentation as may be required) whereby the Replacement Operator assumes all the O&M Contractor’s and (if applicable) Golar Management Norway’s obligations under the Finance Documents and such other amendments are made to the Finance Documents and the other Transaction Documents so as to ensure that the Replacement Operator assumes all the O&M Contractor’s and (if applicable) Golar Management Norway’s obligations under such documents (to the satisfaction of the Lenders, acting reasonably); and
|
(x)
|
the Facility Agent has obtained satisfactory legal opinions in respect of the Replacement Operator’s entry into the Replacement Contract and the other documents referred to in paragraph (ix) above.
|
24.5
|
Agreement of Projected Operating Expenses and Delivery of Project Budget Statement
|
(a)
|
The Borrower and the Charterer shall agree the Projected Operating Expenses for each year of operation annually during the last calendar quarter of each year for the purpose of the Project Budget Statement and such Projected Operating Expenses shall be notified by the Borrower to the Facility Agent.
|
(b)
|
The Borrower shall deliver to the Facility Agent, for distribution to the Lenders, Project Budget Statements in respect of the Project, in form and substance satisfactory to the Facility Agent, on each Utilisation Date and then on each Accounting Reference Date (of the Borrower) annually thereafter throughout the Facility Period.
|
(c)
|
In the event that the Project Budget Statements cannot be agreed between the Borrower and the Facility Agent (acting on the instructions of the Majority Lenders) thirty (30) days prior to the date such agreement is required, the Facility Agent shall be entitled to instruct the Technical Advisor to determine the relevant Project Budget Statement and the Technical Advisor’s determination shall be binding on the parties.
|
24.6
|
Information concerning the Project
|
(a)
|
information relating to (i) any material amendments to or proposed amendments to the Vessel Specifications and/or the Mooring Specifications and (ii) details of any material changes to the design, construction or operation of the Vessel and/or the Mooring prior to carrying out or agreeing such changes;
|
(b)
|
(i) details of any fines levied and charges made by the Charterer pursuant to the Charter (including the amount of each such fine and the basis on which the fine was levied) and (ii) details of any other Total Charter Rate reduction event incurred which results in a reduction in Total Charter Rate and (iii) details of any period of off hire incurred which results in a suspension of the obligation to pay any Total Charter Rate or the amount by which the anticipated Total Charter Rate for that period has been reduced, which information shall be provided as soon as practicable;
|
(c)
|
any material information in relation to any claim (including any Environmental Claim) or material dispute arising under or in connection with the Project and/or the Project Agreements;
|
(d)
|
notice of any party having begun any arbitration proceedings under any Project Agreement, together with the identity of the arbitrators, the conclusion of the arbitration and the terms of any arbitration award;
|
(e)
|
information in relation to any proposed suspension of the Vessel or any proposed dry docking of the Vessel including the proposed date of any such suspension or dry docking and the period for which it is expected that the Vessel will be suspended or in dry dock;
|
(f)
|
details of any proposed or actual Permitted Amendments;
|
(g)
|
copies of any material notices received by or on behalf of the Borrower or issued by or on behalf of the Borrower under any of the Project Agreements;
|
(h)
|
such information concerning the Project or any Project Agreements that deviates from the requirements stipulated in the Charter and/or the O&M Contract and/or the Golar Management Norway Management Agreement and which might reasonably be expected to have a Material Adverse Effect and any remedial action proposed by the Borrower to eliminate or reduce the extent of any such deviation;
|
(i)
|
all operating and maintenance receipts, budgets and cash flow projections agreed by the Borrower in accordance with the Charter and/or the O&M Contract and/or the Golar Management Norway Management Agreement;
|
(j)
|
such other information relating to the Charterer, the Borrower, the O&M Contractor, Golar Management Norway the Sponsor Funding, the Permitted Financial Indebtedness and the Project (or otherwise) as may be reasonably requested by the Facility Agent (acting on the instructions of any Lender) or which is otherwise material in the context of the transactions contemplated by the Finance Documents and the Project Agreements; and
|
(k)
|
a copy of any notice of default received or sent under any of the Project Agreements (within four (4) Business Days after receipt).
|
24.7
|
Information in relation to the Charterer
|
(a)
|
use its best efforts to provide any information in respect of the Charterer as the Lenders may reasonably require; and
|
(b)
|
shall notify Lenders immediately upon becoming aware of any proposed disposal of shares in the Charterer by either Charterer Shareholder.
|
24.8
|
Provision of further information
|
24.9
|
Invoices
|
24.10
|
Enforcement of rights
|
24.11
|
Communications under the Charter and the O&M Contract and the Golar Management Norway Management Agreement
|
24.12
|
Meetings under the Charter
|
24.13
|
Tests
|
(a)
|
give the Facility Agent and the Technical Adviser reasonable notice of all completion and acceptance tests to be carried out in respect of the Vessel and/or the Mooring (if it so requires);
|
(b)
|
permit representatives of the Facility Agent (if it so requires) and the Technical Adviser to attend while tests are carried out and inspect the results of the tests (if so required) in accordance with the Agreed Scope of Work or tests carried out in relation to any breach or potential breach of any of the Project Agreements; and
|
(c)
|
use all reasonable endeavours to obtain all necessary permits from the Charterer to enable the Technical Adviser to attend all tests in accordance with the Agreed Scope of Work and/or following any breach or potential breach of any of the Project Agreements.
|
24.14
|
Access
|
(a)
|
entitled to inspect and take copies of the Borrower's and the O&M Contractor’s and Golar Management Norway’s records (including all drawings and specifications) in relation to the Vessel, the Mooring and the Project on reasonable prior notice to the Borrower or, as the case may be, the O&M Contractor and/or Golar Management Norway; and
|
(b)
|
granted access to any meetings between the Charterer (or the O&M Contractor and/or Golar Management Norway) and the Borrower in relation to any breach of any of the Project Agreements.
|
24.15
|
Technical Adviser
|
(a)
|
The Borrower shall, and shall procure that the O&M Contractor and Golar Management Norway shall:
|
(i)
|
provide all necessary co-operation, access and assistance or, as the case may be, procure that the same is provided to enable the Technical Adviser to complete its scope of work and produce the reports in accordance with the Agreed Scope of Work; and
|
(ii)
|
following the occurrence of a Default and on request by the Facility Agent, prepare any report or investigate any concerns of the Facility Agent in each case in respect of such matters as the Facility Agent shall reasonably advise.
|
(b)
|
The Borrower shall promptly address each material concern referred to in any of the reports specified in the Agreed Scope of Work, at the request of the Facility Agent.
|
24.16
|
Advisers
|
24.17
|
Notice of assignment
|
24.18
|
Payment of Charter Earnings
|
24.19
|
Negative covenants
|
(a)
|
agree to any Change in Location (such consent not to be unreasonably withheld or delayed), other than within the Site for the normal operational duties or in case of emergencies or where required for the safety of the Vessel and/or its crew and personnel; or
|
(b)
|
abandon the Vessel, the Mooring, the Vessel’s equipment or the Project;
|
24.20
|
Charterer’s obligations
|
(a)
|
subject to the Letter of Quiet Enjoyment, the Charterer shall allow the Security Agent to enforce the rights of the Borrower under the Charter as assignee of those rights under the Charter Assignment; and
|
(b)
|
except with approval of the Facility Agent (acting on the instructions of the Lenders), the Charterer shall not assign or otherwise dispose of its rights under the Charter.
|
24.21
|
Currency and location of Charter payments
|
25
|
Dealings with the Vessel / Mooring
|
25.1
|
Vessel’s name and registration
|
(a)
|
The Vessel’s name shall only be changed after prior notice to the Facility 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 Vessel shall remain permanently registered with the relevant Registry under the laws of the Flag State. Except with approval, the Vessel shall not be registered under any other flag or at any other port or fly any other flag (other than that of the Flag State). If that registration is for a limited period, it shall be renewed at least 45 days before the date it is due to expire and the Facility 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 Vessel being required to be registered under the laws of another state of registry.
|
25.2
|
Sale or other disposal of the Vessel / Mooring
|
(a)
|
with approval of the Lenders; or
|
(b)
|
for any sale that complies with clause 7.8 (
Sale of the Vessel / Mooring System
) and where the Secured Obligations have been prepaid in full,
|
25.3
|
Manager
|
25.4
|
Copy of Mortgage on board
|
25.5
|
Notice of Mortgages
|
25.6
|
Conveyance on default
|
25.7
|
Chartering
|
25.8
|
Sharing of Earnings
|
25.9
|
Payment of Earnings
|
25.10
|
Movement of parts
|
26
|
Condition and operation of Vessel / Mooring
|
26.1
|
Repair
|
26.2
|
Modification
|
26.3
|
Removal of parts
|
26.4
|
Third party owned equipment
|
26.5
|
Maintenance of class; compliance with laws
|
26.6
|
Surveys
|
26.7
|
Inspection and notice of drydockings
|
(a)
|
The Facility Agent and/or surveyors or other persons appointed by it for such purpose shall be allowed to board the Vessel and/or the Mooring at all reasonable times to inspect it and given all proper facilities needed for that purpose provided there is no interference with the usual daily operations of the Vessel.
|
(b)
|
The Borrower shall ensure that the Vessel is not put into drydock without:
|
(i)
|
confirmation from the Charterer that such drydocking is necessary in accordance with the terms of the Charter (and the Borrower has met its obligations set out therein);
|
(ii)
|
the Total Charter Rate (or an amount equivalent to it) continuing to be paid in full (or at a rate which ensures (i) no breach of the Borrower’s payment obligations under this Agreement and (ii) no breach of clause 20.1 (
Financial covenants
)); and
|
(iii)
|
the consent of the Facility Agent (acting on the instructions of the Majority Lenders, in consultation with the Technical Advisor if required), such consent not to be unreasonably withheld or delayed.
|
(c)
|
In the event that the Vessel is drydocked in accordance with clause (b), the Facility Agent shall be given reasonable advance notice of any intended drydocking of the Vessel (whatever the purpose of that drydocking) and of the intended yard in which such drydocking is to be carried out. No drydocking may be carried out in a yard which is not approved by the Facility Agent (acting on the instructions of the Majority Lenders), such approval not to be unreasonably withheld or delayed.
|
26.8
|
Prevention of arrest
|
26.9
|
Release from arrest
|
26.10
|
Information about the Vessel
|
26.11
|
Notification of certain events
|
(a)
|
any damage to the Vessel or the Mooring where the cost of the resulting repairs is reasonably likely to exceed the Major Casualty Amount;
|
(b)
|
any occurrence which is reasonably likely to result in the Vessel or the Mooring becoming a Total Loss;
|
(c)
|
any requisition of the Vessel for hire;
|
(d)
|
any Environmental Incident involving the Vessel and/or the Mooring and any Environmental Claim being made in relation to such an incident;
|
(e)
|
any requirement or recommendation made in relation to the Vessel or the Mooring by any insurer or the Classification Society or by any competent authority which is not, or cannot be, complied with in the manner or time required or recommended; and
|
(f)
|
any arrest or detention of the Vessel or the Mooring or any exercise or purported exercise of a lien or other claim on the Vessel, the Mooring or the Earnings or Insurances.
|
26.12
|
Payment of outgoings
|
26.13
|
Evidence of payments
|
(a)
|
the wages and allotments and the insurance and pension contributions of the Vessel’s crew are being promptly and regularly paid;
|
(b)
|
all deductions from its crew’s wages in respect of any applicable Tax liability are being properly accounted for; and
|
(c)
|
the Vessel’s master has no claim for disbursements other than those incurred by him in the ordinary course of operating the Vessel.
|
26.14
|
Repairers’ liens
|
26.15
|
Codes
|
(a)
|
any threatened or actual withdrawal of any certificate issued in accordance with any such code which is or may be applicable to each of the Vessel and the Mooring and its operation; and
|
(b)
|
the issue of any such certificate or the receipt of notification that any application for such a certificate has been refused.
|
26.16
|
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 storing 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 carrying contraband goods; or
|
(e)
|
in any manner contrary to any applicable EU, UN, UK and/or US sanctions,
|
26.17
|
War zones
|
(a)
|
Except with the approval of the Facility Agent (acting on the instructions of the Lenders), the Vessel and the Mooring shall not enter or remain in any zone which has been declared a war zone by any government entity or the Vessel’s war risk insurers.
|
(b)
|
If approval is granted for the Vessel and the Mooring to enter or remain in any such war zone, any requirements of the Facility Agent and/or the Vessel’s and the Mooring’s insurers necessary to ensure that the Vessel and the Mooring remains properly and fully insured in accordance with the Finance Documents (including any requirement for the payment of extra insurance premiums) shall be complied with.
|
26.18
|
Valuations
|
(a)
|
The Facility Agent shall be entitled to require the fair market value of the Vessel to be determined following the occurrence of any Event of Default, in each case at the cost of the Borrower.
|
(b)
|
The Facility Agent shall appoint and instruct an independent valuer on behalf of the Lenders.
|
(c)
|
Valuations shall be provided by the independent valuer in dollars.
|
(d)
|
Each valuation will be made (unless otherwise required by the Facility Agent):
|
(i)
|
without physical inspection (unless required by the Facility Agent);
|
(ii)
|
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
|
(iii)
|
without taking into account the benefit (but taking into account the burden) of any charter commitment.
|
(e)
|
The Borrower shall promptly provide to the Facility Agent and any such independent valuer any information which they reasonably require for the purposes of providing such a valuation.
|
27
|
Insurance
|
27.1
|
Insurance terms
|
27.2
|
Coverage required
|
(a)
|
The Vessel shall at all times be insured:
|
(i)
|
against fire and usual marine risks (including excess risks) and war risks (including war protection and indemnity risks and terrorism risks) on an agreed value basis, for at least its minimum hull cover and no less than its replacement value;
|
(ii)
|
against P&I risks for the highest amount then available in the International Group of protection and indemnity associations for vessels of similar age, size and type as the Vessel (but, in relation to liability for oil pollution, for an amount of not less than $500,000,000);
|
(iii)
|
against loss of hire of the Vessel for a daily amount as agreed by the Facility Agent (in consultation with the Borrower and the Insurance Advisor) of not less than 240 days each accident or occurrence and in all.
|
(iv)
|
against such other risks and matters which would be reasonable and expected in the international insurance market (such as Workmen’s Compensation and/or Employer’s Liability, Third Party Legal Liability Insurance, or as otherwise notified by the Facility Agent (in consultation with the Borrower and the Insurance Advisor)) for a prudent FSRU operator to insure against at the time of that notice; and
|
(v)
|
on terms which comply with the other provisions of this clause 27.
|
(b)
|
The Mooring shall at all times be insured against all risks of physical loss or damage including removal of wreckage and/or debris for at least US$30,000,000 and no less than its replacement value plus allowance for removal of wreckage and/or debris costs;
|
(i)
|
against third party liability for an amount of not less than $50,000,000 or such limit as may be agreed by the Facility Agent (in consultation with the Borrower and the Insurance Advisor);
|
(ii)
|
against terrorism property damage for at least US$30,000,000 and no less than its replacement value; and
|
(iii)
|
against loss of hire of the Vessel as a result of damage to the Mooring for a daily amount as agreed by the Facility Agent (in consultation with the Borrower and the Insurance Advisor) of not less than 240 days each accident or occurrence and in all.
|
27.3
|
Placing of cover
|
(a)
|
The insurance coverage required by clause 27.2 (
Coverage required
) shall be:
|
(i)
|
in the name of the Borrower and the Security Agent on behalf of the Finance Parties (except in the case of protection & indemnity where the Security Agent’s interest should be noted). If any other person is named the Facility Agent may require a duly executed and delivered a first priority assignment and/or subordination of its interest in the Insurances to the Security Agent in an approved form and provided such supporting documents and opinions in relation to that assignment as the Facility Agent requires);
|
(ii)
|
where the Security Agent is named as an insured, to the extent reasonably practicable in the insurance market, it shall be without liability on the part of the Security Agent for premiums or calls);
|
(iii)
|
in dollars or another approved currency;
|
(iv)
|
arranged through approved international recognised brokers or direct with approved insurers and/or reinsurers, as the case may be, or protection and indemnity or war risks associations; and
|
(v)
|
on approved terms and with approved insurers or associations, in each case with an Approved Credit Rating (or, if placed with insurers or associations with a credit rating lower than the Approved Credit Rating, reinsured not less than 99% with approved reinsurers or associations with an Approved Credit Rating and subject to the execution of the Reinsurance Security).
|
(b)
|
Without limiting clause 27.3(a), the Borrower shall use reasonable endeavours to arrange the Insurances and Reinsurances in respect of the Vessel and the Mooring Security with insurers or associations or, as the case may be, reinsurers that have an Approved Credit Rating with Standard & Poor’s Rating Agency, Moody’s Rating Agency and/or Fitch Rating Agency and the Borrower shall not in any circumstances arrange more than 10% in aggregate of such Insurances and Reinsurances or of any individual insurance policy with any insurer or association or, as the case may be, reinsurers which has an Approved Credit Rating with A.M. Best Agency only.
|
27.4
|
Deductibles
|
27.5
|
Mortgagee’s insurance
|
27.6
|
Fleet liens, set off and cancellations
|
(a)
|
set off against any claims in respect of the Vessel or Mooring any premiums due in respect of any of such other vessels insured; or
|
(b)
|
cancel that cover because of non-payment of premiums in respect of such other vessels or property,
|
27.7
|
Payment of premiums
|
27.8
|
Details of proposed renewal of Insurances
|
(a)
|
At least twenty one (21) days before any of the Insurances are due to expire, the Facility Agent shall be told the names of the brokers, insurers and associations proposed to be used for the renewal of such Insurances and the amounts, risks and terms in, against and on which the Insurances are proposed to be renewed.
|
(b)
|
The Borrower will procure that approved brokers and/or approved insurers and approved P&I Club will provide the Facility Agent with pro forma copies of all policies relating to the Insurances that are to be effected or renewed and letters of undertaking in the agreed form.
|
27.9
|
Instructions for renewal
|
27.10
|
Confirmation of renewal
|
27.11
|
P&I guarantees
|
27.12
|
Insurance documents
|
(a)
|
The Facility Agent shall be provided with cover notes of all insurance and reinsurance policies, slips, cover notes, certificates of entry or other instruments of insurance from time to time issued by brokers, insurers, reinsurers and associations in connection with the Insurances and the Reinsurances as soon as they are available after they have been placed or renewed but in any case no later than thirty (30) days following such placement or renewal and all insurance and reinsurance policies and other documents relating to the Insurances and Reinsurances shall be deposited with any approved brokers or (if not deposited with approved brokers) the Facility Agent or some other approved person.
|
(b)
|
Any cover notes (or, to the extent not contained in the cover notes, any other relevant documentation issued by brokers, insurers, reinsurers and/or associations in connection with the Insurances and the Reinsurances) provided under clause 27.12(a) shall contain, inter alia, the following information:
|
(i)
|
full details of the assured clause;
|
(ii)
|
the period of the policy;
|
(iii)
|
the interests (subject matter) insured and the insured values/amounts/limits;
|
(iv)
|
sums insured (order/share) under each policy;
|
(v)
|
copies of any non-standard or bespoke clauses;
|
(vi)
|
full details of the insurers and/or reinsurers and their individual participation including details of any intermediary brokers or agents;
|
(vii)
|
details of the applicable law and jurisdiction; and
|
(viii)
|
copies of the P&I Certificate of Entry and Extended Contractual Liability Endorsement.
|
27.13
|
Letters of undertaking
|
27.14
|
Insurance Notices and Loss Payable Clauses
|
27.15
|
Insurance correspondence
|
27.16
|
Qualifications and exclusions
|
27.17
|
Independent report
|
27.18
|
Collection of claims
|
27.19
|
Employment of Vessel
|
27.20
|
Declarations and returns
|
27.21
|
Application of recoveries
|
27.22
|
Settlement of claims
|
27.23
|
Change in insurance requirements
|
27.24
|
Further undertaking
|
(a)
|
complying with all of the requirements expressly imposed on it under the Insurances;
|
(b)
|
taking all reasonable action within its power to procure that at all times all parties to the Insurances (other than, if applicable, the Security Agent) comply with all of the requirements under the Insurances; and
|
(c)
|
complying with the express terms of all Insurances and taking all action necessary to maintain the Insurances as valid and up-to-date insurances.
|
28
|
Project Accounts, Receivables and Insurance Proceeds
|
28.1
|
The Borrower undertakes with each of the Finance Parties that, from the date of this Agreement and thereafter, for so long as any Commitment or amount is outstanding under the Finance Documents, it will:
|
(a)
|
open each of the Project Accounts with the Account Bank (and such other accounts as may from time to time be approved by the Facility Agent) and, in connection therewith, will from time to time complete all “know your customer” and other returns necessary for such process if any;
|
(b)
|
not withdraw any moneys, certificates of deposit or other securities from any Project Account otherwise than in accordance with the provisions of this Agreement and the Account Security; and
|
(c)
|
not request a withdrawal of any moneys from any Project Account without the prior written consent of the Facility Agent if:
|
(i)
|
a Default has occurred and is continuing or would occur as a result (wholly or partly) of such withdrawal and (in either case) the Facility Agent has notified the Borrower and the Account Bank that no such withdrawal will be permitted; or
|
(ii)
|
such Project Account is overdrawn or would become overdrawn as a result of such withdrawal; or
|
(iii)
|
such withdrawal is in contradiction to Clauses 28.5(a), 28.6(b) and/or 28.7(b).
|
28.2
|
The Borrower may, from time to time, require the Account Bank to apply moneys standing to the credit of the Earnings Account, the Debt Service Reserve Account and the Operating Account towards making Permitted Investments (which Permitted Investments shall be held by the Account Bank (on behalf of the Borrower) on the relevant Project Account and be subject to the Account Security). Unless already provided in this Agreement or in the Security Documents prior to, or simultaneously with, the purchase of any Permitted Investments, the Borrower shall execute such agreements which shall be Security Documents and do all such other acts or things as the Facility Agent reasonably considers to be necessary or desirable in order to provide to the Security Agent a security interest in and to such Permitted Investments, which is, as to priority and effect, reasonably satisfactory to the Facility Agent and, as to form and perfection, customary in relation to such Permitted Investments at the time at which such purchase is made.
|
28.3
|
With effect from the date hereof, the Borrower shall:
|
(a)
|
maintain each of its Project Accounts with the Account Bank;
|
(b)
|
immediately disclose to the Facility Agent the particulars of any bank accounts of the Borrower other than the Project Accounts and notify the Facility Agent immediately upon opening any bank accounts other than the Project Accounts and the Free Cash Account;
|
(c)
|
pay all Total Charter Rate and other Earnings payable to the Borrower in respect of the Vessel and the Mooring into the Earnings Account in dollars;
|
(d)
|
direct that the Charterer and any other relevant person shall pay all Total Charter Rate and other Earnings payable to the Borrower in respect of the Vessel and the Mooring into the Earnings Account in dollars;
|
(e)
|
pay or procure the payment of all compensation from time to time during the Facility Period received in respect of any requisition of the Vessel for hire into the Earnings Account for application in accordance with the Security Assignment;
|
(f)
|
pay or procure the payment of any moneys received or receivable from the Hedging Banks under or pursuant to the Hedging Contracts into the Earnings Account;
|
(g)
|
pay or procure the payment of all amounts which are, at any time prior to an Event of Default, received or receivable from the Guarantors (or either of them) pursuant to the terms of either Guarantee into the Earnings Account;
|
(h)
|
permit the Security Agent and the Facility Agent to apply all Earnings in respect of the Vessel and the Mooring in accordance with the Security Assignment and in repayment or prepayment (as applicable) of the Loans, in accordance with this clause 28;
|
(i)
|
pay all Receivables or procure that such proceeds are paid into the Earnings Account, for application in accordance with 28.5(b);
|
(j)
|
pay all Insurance Proceeds and Liability Insurance Proceeds in respect of the Vessel and/or the Mooring, whether greater or less than the Major Casualty Amount, or procure that such proceeds are paid, in the manner contemplated by clause 28.8; and
|
(k)
|
pay the proceeds of any Permitted Financial Indebtedness into an Account as the circumstances may require to be notified by the Borrower to the Facility Agent.
|
28.4
|
If any moneys credited to the Project Accounts is denominated in a currency other than (a) dollars, or (b) currencies that are not freely convertible as determined by the relevant authorities and/or the Account Bank from time to time, then the Borrower irrevocably authorises the Account Bank to convert the amount received into dollars at the rate of exchange then prevailing in the market in accordance with the Account Bank’s normal operating practices and any incidental costs of making such conversion in accordance with this clause shall be borne by the Borrower.
|
28.5
|
Earnings Account
|
(a)
|
Payment Cascade
|
(i)
|
first, on each Monthly Date (subject to the Borrower having submitted the request for payment to the Facility Agent at least five (5) Business Days prior to such Monthly Date), in or towards payment in dollars to the Operating Account of the amount equal to the aggregate of (x) the Tax Element received under the Charter for the calendar month ended prior to that Monthly Date and (y) the lesser of (A) the agreed amount set out in the Project Budget Statement for such Monthly Date, (B) an amount in respect of the Operating Expenses in respect of the Vessel payable for the calendar month ended prior to that Monthly Date (as notified by the Borrower to the Facility Agent in respect of the payment referred above, together with evidence of the same) and (C) the amount of Operating Cost Element received under the Charter for the calendar month ended prior to that Monthly Date (including any other Taxes payable on or calculated by reference to such Operating Expenses (as notified by the Borrower to the Facility Agent in respect for payment referred above, together with evidence of the same));
|
(ii)
|
secondly, on each Repayment Date and/or at any other time when such fees are due, in payment in dollars of all fees (including commitment fee), expenses and charges due to the Co-ordination and Structuring Bank, the Mandated Lead Arranger, the Lenders, the Facility Agent and the Security Agent pursuant to the Finance Documents;
|
(iii)
|
thirdly, on each Repayment Date, in payment in dollars, on a
pari passu
basis, to:
|
(A)
|
the Lenders
pro rata
of all amounts in respect of interest (including any default interest) then due (or overdue) on that Repayment Date and payable under the Finance Documents; and
|
(B)
|
the Hedging Banks
pro rata
of all amounts (other than any swap termination sums / close-out payments under the Hedging Contracts) (if any) then due and payable to the Hedging Banks under the Hedging Contracts in respect of the period ending on that Repayment Date;
|
(iv)
|
fourthly, on each Repayment Date, in payment in dollars, on a
pari passu
basis, to:
|
(A)
|
the Lenders
pro rata
of all amounts in respect of principal then due (or overdue) on that Repayment Date and payable under clause 6 (or otherwise pursuant to the Finance Documents); and
|
(B)
|
the Hedging Banks
pro rata
of any swap termination sums / close-out payments owing to them under the Hedging Contracts,
|
(v)
|
fifthly, on each Monthly Date, in transfer to the Debt Service Reserve Account of any amount (up to the balance remaining on the Earnings Account) needed to fully fund the applicable Debt Service Reserve at such time (or to fund any shortfall in the applicable Debt Service Reserve standing to the credit of the Debt Service Reserve Account at such time);
|
(vi)
|
sixthly, on each Repayment Date falling after the 22nd Repayment Date, any moneys remaining on the Earnings Account after the applications under the preceding paragraphs of this clause 28.5(a) (
Payment Cascade
) have been made in full shall be paid to the Facility Agent in prepayment of the Loans (pro rata against the Facilities and in inverse order of maturity against the Balloon and the remaining Repayment Instalments) and otherwise in accordance with clause 7.13 (
Restrictions
); and
|
(vii)
|
seventhly, on each Repayment Date and subject to the proviso below and no Dividend Restriction Event having occurred and being continuing, any moneys remaining on the Earnings Account after the applications under the preceding paragraphs of this clause 28.5(a) (
Payment Cascade
) have been made in full for the applicable Repayment Date shall be transferred to any Free Cash Account for use by the Borrower provided always that no transfers to the Free Cash Accounts (or any of them) shall be made from the date when the Cash Sweep Mechanism commences until all amounts under the Facilities have been repaid in full.
|
(b)
|
All Receivables from time to time received by the Borrower, the Facility Agent, the Security Agent or the Account Bank shall be paid to and held in the Earnings Account and shall be applied in accordance with this clause 28.5(b). Upon the occurrence of a Proceeds Application Event and at all times thereafter, all Receivables from time to time received by the Facility Agent, the Security Agent, the Account Bank or the Borrower, together with all interest accrued thereon whilst held in the Earnings Account and all other amounts from time to time standing to the credit of the Earnings Account, shall (after providing for any Losses ranking by law in priority to the Secured Obligations) be applied as soon as reasonably practicable in paying the following amounts in the following order:
|
(i)
|
first, in or towards reimbursing all and any expenses and charges properly suffered, incurred or paid by the Co-ordination and Structuring Bank, the Lenders, the Facility Agent, the Security Agent or any Receiver pursuant to the Finance Documents and all and any remuneration payable to any Receiver pursuant to the Finance Documents;
|
(ii)
|
secondly, in or towards payment of prepayment of the Loans and accrued interest and all other amounts accrued or outstanding under the Finance Documents and the Hedging Debt pursuant to clauses 7.6 (in the case of Total Loss), 7.8 (in the case of a sale of the Vessel and/or the Mooring), 7.9 (in the case of termination of the Charter), 7.10 (in the case of a Major Casualty) (in each case for further application in accordance with clause 40.5), or, as the case may be, 37.22 (
Order of Application
) (in all other cases); and
|
(iii)
|
thirdly, an amount equal to the balance (if any) shall be paid to the Borrower.
|
(c)
|
Withdrawals
|
(i)
|
During the Facility Period and prior to the occurrence of a Proceeds Application Event, the Borrower shall not withdraw or request a withdrawal of moneys from the Earnings Account except (A) as provided for in clause 28.5(a) or (B) in accordance with the terms of the Account Security or (C) to reimburse any Obligor in accordance with clause 28.8(c),
provided that, if such withdrawal is made on a Monthly Date or a Repayment Date, there is adequate moneys standing to the credit of the Earnings Account to make the payments referred to in paragraphs (i) to (v) of clause 28.5(a) which are payable on that date in full
.
|
(ii)
|
Following the occurrence of a Proceeds Application Event, and at all times thereafter during the Facility Period, the Borrower shall not withdraw or request a withdrawal of moneys from the Earnings Account.
|
(d)
|
Information
|
28.6
|
Operating Account
|
(a)
|
Payments
|
(b)
|
Withdrawals
|
(c)
|
Information
|
28.7
|
Debt Service Reserve Account
|
(a)
|
Subject to clause 28.7(b) below, the Borrower shall maintain a credit balance of not less than the applicable Debt Service Reserve in the Debt Service Reserve Account at all times from the Utilisation Date of the Final Advance and for the remainder of the Facility Period.
|
(b)
|
The Borrower shall not withdraw or request a withdrawal of moneys from the Debt Service Reserve Account except as provided in clauses 28.5(a)
(Payment Cascade)
. Following any such withdrawal, the Borrower shall, no later then the next Monthly Date, make up any shortfall between the applicable Debt Service Reserve and the balance standing to the credit of the Debt Service Reserve Account.
|
28.8
|
Insurance Proceeds
|
(a)
|
Prior to the occurrence of a Default, all Insurance Proceeds from time to time received by the Borrower, the Security Agent or the Account Bank during the Facility Period shall (after providing for any Losses ranking by law in priority to the Secured Obligations) be applied as follows:
|
(i)
|
if those Insurance Proceeds are in an amount less than the Major Casualty Amount, an amount equal to any balance of those Insurance Proceeds shall (subject to paragraph (c) below) be paid to the Earnings Account after such Insurance Proceeds have first been applied in repairing any damage to the Vessel or the Mooring and/or in discharging the liability in respect of which they have been paid except to the extent that the repairs have already been paid for and/or the liability already discharged;
|
(ii)
|
if those Insurance Proceeds are in an amount equal to or exceeding the Major Casualty Amount and subject to either (A) both a determination by the Technical Adviser, following consultation with the Borrower, that it is technically feasible to repair and make good the relevant damage or loss and a joint determination by the Technical Adviser and the Facility Agent, following consultation between them and the Borrower, that it is economically feasible to repair and make good the relevant damage or loss and that the Borrower’s ability to meet its payment obligations under this Agreement will not be impaired or (B) the prior written approval of the Lenders, an amount equal to those Insurance Proceeds shall be paid:
|
(A)
|
to the Borrower (to such account as is advised by the Borrower), following receipt by the Facility Agent from the Borrower of evidence reasonably satisfactory to the Facility Agent that the relevant damage or loss has been properly made good and repaired and that all repair accounts and other liabilities whatsoever in connection with that damage or loss have been fully paid and discharged by the Borrower; or
|
(B)
|
to the persons or person effecting the repairs to the Vessel or the Mooring on account of those repairs in the course of those repairs being effected (if staged payments for such repairs are required) or after those repairs have been effected (in all other circumstances);
|
(iii)
|
if those Insurance Proceeds are in an amount equal to or exceeding the Major Casualty Amount and are not applied as contemplated by paragraph (ii), an amount equal to those Insurance Proceeds shall be paid into the Earnings Account for application in accordance with clause 28.10 (
Application after Termination Date
).
|
(b)
|
All amounts of Liability Insurance Proceeds from time to time received by the Borrower, the Security Agent or the Account Bank during the Facility Period shall be paid to the person who incurred the liability or who suffered the damage to which those Liability Insurance Proceeds relate or, where that liability has been satisfied, to the person who has satisfied that liability, in reimbursement to that person of the monies expended by it in satisfaction of that liability, in each case, following the receipt by the Security Agent from the Borrower of evidence satisfactory to the Security Agent that the relevant liability or damage was incurred or suffered or, as the case may be, that the relevant liability has been satisfied.
|
(c)
|
All amounts of Loss of Hire Insurance Proceeds from time to time received by the Borrower, the Security Agent or the Account Bank during the Facility Period shall first be applied to reimburse any Obligor (other than the Borrower) in an amount equal to the amount paid by that Obligor to remedy any shortfall pursuant to and in accordance with clause 7.9(d) of this Agreement and thereafter any excess shall be paid into the Earnings Account.
|
(d)
|
Following the occurrence of an Event of Default which is continuing, all amounts of Insurance Proceeds and/or Liability Insurance Proceeds from time to time received or held by the Security Agent or the Account Bank shall be applied in accordance with clause 28.10 (
Application after Termination Date
).
|
28.9
|
Application on Final Maturity Date
|
28.10
|
Application after Termination Date
|
(a)
|
first, in or towards payment to the Security Agent of any unpaid costs and expenses incurred in connection with the enforcement or attempted enforcement of any of the rights under any of the Finance Documents; and
|
(b)
|
secondly, for further application in accordance with clause 37.22 (
Order of application
).
|
28.11
|
Payment Administration
|
(a)
|
Whenever a payment is due to be made from any of the Project Accounts in accordance with the terms of this clause 28 (
Project Accounts, Receivables and Insurance Proceeds
), the Facility Agent will determine the amounts so payable and to whom they are payable in consultation with the Borrower (where appropriate) on the relevant date and the Facility Agent shall instruct the Account Bank (and the Borrower hereby authorises the Account Bank to make such payments) to pay such amounts from the relevant Project Account to the applicable payee.
|
(b)
|
The Borrower undertakes that this clause will be complied with throughout the Facility Period.
|
28.12
|
Other provisions
|
(a)
|
An Account may only be designated for the purposes described in this clause 28 (
Project Accounts, Receivables and Insurance Proceeds
) if:
|
(i)
|
such designation is made in writing by the Facility 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;
|
(ii)
|
an Account Security has been duly executed and delivered by the Borrower in favour of the Security Agent;
|
(iii)
|
any notice required by the Account Security to be given to an Account Bank has been given to, and acknowledged by, the Account Bank in the form required by the relevant Account Security; and
|
(iv)
|
the Facility 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 (
Conditions precedent
) in relation to the Account and the relevant Account Security.
|
(b)
|
The rates of payment of interest and other terms regulating any Account will be a matter of separate agreement between the Borrower and the Account Bank. If an Account is a fixed term deposit account, the Borrower may select the terms of deposits until the relevant Account Security has become enforceable and the Security Agent directs otherwise.
|
(c)
|
The Borrower 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 28 (
Project Accounts, Receivables and Insurance Proceeds
) or waive any of its rights in relation to an Account except with approval.
|
(d)
|
The Borrower 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 Facility Agent with any other information it may request concerning any Account.
|
(e)
|
Each of the Facility Agent and the Security Agent agrees that if it is an Account Bank in respect of an Account then there will be no restrictions on charging 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.
|
29
|
Business restrictions
|
29.1
|
General negative pledge
|
(a)
|
those granted or expressed to be granted by any of the Security Documents;
|
(b)
|
Permitted Maritime Liens; and
|
(c)
|
(except in relation to Charged Property) any lien arising by operation of law in the ordinary course of trading and not as a result of any default or omission by any Obligor.
|
29.2
|
Transactions similar to security
|
(a)
|
sell, transfer or otherwise dispose of any of its assets on terms whereby that asset is or may be leased to, or re-acquired by, any other member of the Pre-Completion Guarantor Group other than pursuant to disposals permitted under clause 29.8 (
Disposals
);
|
(b)
|
sell, transfer, factor or otherwise dispose of any of its receivables on recourse terms (except for the discounting of bills or notes in the ordinary course of business);
|
(c)
|
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts other than the Free Cash Account; or
|
(d)
|
enter into any other preferential arrangement having a similar effect,
|
29.3
|
Financial Indebtedness
|
(a)
|
Financial Indebtedness incurred under the Finance Documents;
|
(b)
|
Permitted Financial Indebtedness; and
|
(c)
|
Financial Indebtedness permitted under clause 29.5
(
Loans and credit
).
|
29.4
|
Guarantees
|
29.5
|
Loans and credit
|
29.6
|
Bank accounts and other financial transactions
|
(a)
|
maintain any current or deposit account (other than the Project Accounts and the Free Cash Accounts) with a bank or financial institution except for the deposit of money, operation of current accounts and the conduct of electronic banking operations with the Account Bank;
|
(b)
|
hold cash in any account (other than with the Account Bank or (in the case of any Free Cash Account) PT Bank Sumitomo Mitsui Indonesia) over or in respect of which any set-off, combination of accounts, netting or Security Interest exists;
|
(c)
|
be party to any banking or financial transaction, whether on or off balance sheet, that is not expressly permitted under this clause 29 (
Business restrictions
).
|
29.7
|
Other obligations and/or business
|
(a)
|
The Borrower shall not:
|
(i)
|
enter into any contract or agreement with any person and will not otherwise create or incur any liability to any person other than in its ordinary course of business or as provided for in, or as permitted by, the Transaction Documents and arrangements entered into as a result thereof and each other document required to be executed and delivered by it in accordance with the provisions hereof or thereof;
|
(ii)
|
undertake, incur or assume any obligation or liability whatsoever other than its obligations and liabilities pursuant to this Agreement and the other Transaction Documents to which it is party (and under any Permitted Financial Indebtedness); or
|
(iii)
|
undertake or become involved in any business whatsoever other than as contemplated by the Transaction Documents without the prior written consent of the Facility Agent acting with the consent of all the Lenders.
|
(b)
|
Each of the Sponsors shall maintain and procure that the Borrower is maintained as a single purpose company.
|
29.8
|
Disposals
|
(a)
|
disposals of assets made in (and on terms reflecting) the ordinary course of trading of the disposing entity;
|
(b)
|
subject always to clause 26.3 (
Removal of parts
), disposals of obsolete assets or damaged assets or assets which are no longer required for the purpose of the business of the relevant Obligor in each case for cash on normal commercial terms and on an arm’s length basis;
|
(c)
|
dealings with trade creditors with respect to book debts in the ordinary course of trading; and
|
(d)
|
the application of cash or cash equivalents in the acquisition of assets or services in the ordinary course of its business.
|
29.9
|
Contracts and arrangements with Affiliates
|
29.10
|
Subsidiaries
|
29.11
|
Acquisitions and investments
|
(a)
|
the Vessel, the Mooring and the Borrower Assigned Property;
|
(b)
|
acquisitions of assets in the ordinary course of business (not being new businesses or vessels); or
|
(c)
|
pursuant to or contemplated under any Transaction Document to which it is party.
|
29.12
|
No winding up
|
29.13
|
Reduction of capital
|
29.14
|
Increase in capital
|
29.15
|
Distributions and other payments
|
(a)
|
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
|
(b)
|
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 Subordinated Loan, any other shareholder loan or intercompany loan, loan stock or similar instrument,
|
29.16
|
Change in ownership
|
29.17
|
Replacement shareholder
|
(i)
|
PSU is in breach of its obligations under any of the Transaction Documents and the Borrower and the Final Repayment Guarantor wish to replace it as a shareholder of the Borrower;
|
(ii)
|
the appointment of a Replacement Shareholder would not breach the terms of the Charter, the Shareholders’ Agreement or any law or regulation applicable to the Borrower, any Shareholder, the Vessel or the Project;
|
(iii)
|
the Replacement Shareholder is an Approved Shareholder;
|
(iv)
|
the Replacement Shareholder and Golar Singapore enter into a shareholders agreement which is substantially in the same form and on the same terms as the Shareholders’ agreement or on such other terms as many be acceptable to the Lenders (the
Replacement Shareholders’ Agreement
);
|
(v)
|
the Lenders have obtained all internal approvals for the proposed appointment of the Replacement Shareholder and can satisfy their Know Your Customer (“KYC”) requirements in respect of the Replacement Shareholder;
|
(vi)
|
the Replacement Shareholder has entered into an accession deed (or such other documentation as may be required) whereby the Replacement Shareholder assumes all PSU’s obligations under the Transaction Documents and such other amendments are made to the Finance Documents and the other relevant Transaction Documents so as to ensure that the Replacement Shareholder assumes all PSU’s obligations under such documents (to the satisfaction of the Lenders (acting reasonably)); and
|
(vii)
|
if required by the Facility Agent (acting reasonably), the Facility Agent has obtained satisfactory legal opinions in respect of the Replacement Shareholder’s entry into the Replacement Shareholders’ Agreement, the other documents referred to in paragraph (vi) above and any other documents which the Facility Agent (acting reasonably) may consider necessary or desirable in relation to appointment of the Replacement Shareholder to ensure that rights equivalent to those provided to the Finance Parties under the Finance Documents are preserved.
|
30
|
Hedging
|
30.1
|
Hedging
|
(a)
|
Subject to clauses (j) and (k) below, the Borrower shall enter into and maintain at all times during the Facility Period on and from the earlier of (i) 30 April 2018 and (ii) the date falling thirty (30) days from the date of the Supplemental Agreement, Hedging Transactions which provide for protection against adverse movements in interest rates for an aggregate notional principal amount that is not less than seventy per cent (70%) of the outstanding amount of Facility A at such time but not greater than one hundred and five per cent (105%) of the outstanding amount of Facility A as then scheduled to be repaid pursuant to clause 6 (
Repayment
).
|
(b)
|
The Borrower shall, on or before the date of the Supplemental Agreement, invite each Lender to propose the notional amount of the interest rate swap (
IRS
) it (or any of its Affiliates) is willing to take up and the credit spread, in basis points (bps), over the offer side of the dollar swap rate, as calculated in line with the Repayment Instalments, based on the prevailing dollar swap yield curve, that each Lender (or any of its Affiliates) would require to be paid to provide such notional amount of the IRS. The Lenders undertake to offer (or procure that their relevant Affiliate offers) market terms as to the credit spread offered (for this type of transaction, tenor and notional amount). Each Lender (or its respective Affiliate) will be given the right (to be exercised at its option) to match the average credit spread received by the Borrower from the other Lenders for a notional amount up to its pro rata share in the Loans. The Borrower undertakes to grant the IRS to the Lender or Lenders (or their respective Affiliates) based on the set of notional amounts and credit spreads indicated by the Lender(s) (or their respective Affiliates) which allows it to reach the required full notional amount of the IRS at the lowest possible cost to the Borrower, and for the avoidance of doubt, this need not be on a pro rata basis if any Lender or Lenders choose not to match the relevant credit spread. If the Hedging Providers choose not to enter into the proposed Hedging Transaction with the Borrower or the pricing offered by the Hedging Providers for such Hedging Transaction is not competitive with the pricing available to the Borrower from a Non Lender Hedging Bank, the Borrower may enter into the proposed Hedging Transaction with a Non Lender Hedging Bank on terms better than those offered by the Hedging Providers. Any Non Lender Hedging Bank will not be a party to this Agreement or any of the Finance Documents and will not share in any of the rights or interests of the Finance Parties pursuant to the Finance Documents.
|
(c)
|
All Original Hedging Banks shall be Original Lenders (or Affiliates thereof which is/are regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets and entering into ISDA derivative documentation and interest rate swaps).
|
(d)
|
The Borrower shall:
|
(i)
|
no later than the Effective Date (as defined in the Supplemental Agreement), execute and deliver to the Facility Agent a copy of the Hedging Master Agreements certified as true by an authorised signatory of the Borrower;
|
(ii)
|
within thirty (30) days from the date of the Supplemental Agreement, deliver evidence of the entry into the Hedging Transactions as required by clause 30.1(a) to the Facility Agent.
|
(e)
|
Each Hedging Contract contemplated by this clause 30.1 (
Hedging
) shall:
|
(i)
|
provide that the Termination Currency (as defined in each Hedging Contract) of each Hedging Contract is dollars;
|
(ii)
|
provide for two-way payments in the event of a termination of a Hedging Transaction, whether upon a Termination Event or an Event of Default (each as defined in the relevant Hedging Contract) as the applicable payment measure; and
|
(iii)
|
provide that the governing law is English law.
|
(f)
|
The Hedging Transactions contemplated by this clause 30.1 (
Hedging
) shall:
|
(i)
|
individually provide for the Borrower to pay a fixed rate of interest in respect of the relevant notional principal amount; and
|
(ii)
|
collectively match the repayment profile of the Loans in a manner consistent with clause (a), including pursuant to any adjustment necessitated by clause 6.3.
|
(g)
|
The Borrower shall ensure that:
|
(i)
|
each Floating Rate Payer Payment Date (as defined in each Hedging Contract) in respect of each Hedging Transaction shall coincide with each Repayment Date;
|
(ii)
|
each Reset Date (as defined in each Hedging Contract) in respect of each Hedging Transaction is consistent with each Quotation Day; and
|
(iii)
|
the Floating Rate Option (as defined in each Hedging Contract) in respect of each Hedging Transaction is consistent with the definition of LIBOR, including with respect to the first Interest Period and any fallback determination provisions.
|
(h)
|
The Borrower shall, promptly upon entry into any Hedging Transaction, deliver to the Facility Agent an original or certified copy of the relevant Confirmation.
|
(i)
|
Other than Hedging Transactions which meet the requirements of this clause 30 (
Hedging
), the Borrower shall not enter into derivative transactions.
|
(j)
|
In the circumstances referred to in clause 32.4(f) and from the date designated as the Early Termination Date by the terminating Hedging Bank as a result of its failure to transfer the affected Hedging Transaction to an Affiliate or office, the Borrower shall have a period of twenty (20) days or, as the case may be, seven (7) Business Days (as referred to in clause 32.4(f)(iii)) to execute replacement Hedging Transactions in accordance with the provisions of clause 32.4(f).
|
(k)
|
If the Borrower becomes entitled to terminate any Hedging Transactions and/or Hedging Master Agreements in accordance with the terms thereof, and starting from the date designated by the Borrower as the Early Termination Date, the Borrower shall have a period of 20 days in which to execute replacement Hedging Transactions (by following the procedures set out in clause 30.1(b) (but subject to the provisos set out in clause 32.4(f)(i)(A) and 32.4(f)(i)(B)) and clause 32.4(f)(ii). Unless otherwise agreed, should the Borrower fail to execute replacement Hedging Transactions sufficient to comply with clause (a) within such 20 day period, this shall be considered a breach of clause (a).
|
(l)
|
The Borrower shall not, without the prior consent of the Lenders, enter into any Hedging Transaction if the forecasted Debt Service Coverage Ratio (as calculated by reference to the Financial Model and taking into account such Hedging Transaction(s)) for each Relevant Period during the remaining tenor of the Facility Period is less than 1.40:1.
|
30.2
|
Variations
|
30.3
|
Releases and waivers
|
30.4
|
Assignment by Borrower
|
30.5
|
Termination of Hedging Contracts by Borrower
|
30.6
|
Unwinding of Hedging Contracts
|
(a)
|
Subject to clause (b) below, if, at any time, and whether as a result of any prepayment (in whole or in part) of the Loans or any cancellation (in whole or in part) of the Commitment or otherwise, the aggregate notional principal amount under all Hedging Transactions in respect of a Loan entered into by the Borrower exceeds or will exceed the aggregate amount of Loans outstanding at that time after such prepayment or cancellation, then (unless otherwise approved by the Facility Agent) each of the Permitted Hedging Banks shall on the date of such prepayment or cancellation close out and terminate a sufficient portion of each Hedging Transaction (on a pro rata basis) as is necessary to ensure that the aggregate notional principal amount under the remaining continuing Hedging Transactions equals, and will in the future be equal to, not less than seventy per cent (70%) and not greater than one hundred and five per cent (105%) of the outstanding amount of Facility A at such time and as scheduled to be repaid from time to time thereafter pursuant to clause 6 (
Repayment
).
|
(b)
|
Where the prepayment of a Loan (or any part thereof) arises as a result of the circumstances described in clauses 7.1 (
Illegality
), 7.5 (
Right of cancellation in relation to a Defaulting Lender
) and /or 11.4 (
Prepayment; termination of Commitments
) in relation to a single Lender (and such circumstances also affect such person (or its respective Affiliate) acting in its capacity as Hedging Bank, as a result of which such Hedging Bank is entitled to designate an Early Termination Date (as defined in the relevant Hedging Master Agreement) with respect to the whole of the relevant Hedging Transaction), then such Hedging Bank shall (on the instruction of the Facility Agent) immediately close out and terminate such Hedging Transaction. Provided that, following such termination, the aggregate notional principal amount under the remaining continuing Hedging Transactions equals, and will in the future be equal to, the same percentage of the aggregate amount of the Loans outstanding after such prepayment or cancellation as the notional amount had borne to the aggregate amount of the Loan outstanding prior to such prepayment or cancellation.
|
30.7
|
Assignment of Hedging Contracts by Hedging Banks
|
(a)
|
A Hedging Bank shall assign its rights or transfer by novation its rights and obligations under this Agreement (in its capacity as a Hedging Bank and not, if applicable, as a Lender) to another bank or financial institution (or, following an Event of Default that is continuing, to a trust, fund or other entity) which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets and entering into ISDA derivative documentation and interest rate swaps (including an Affiliate of such Hedging Bank) (the
New Hedging Bank
) to the extent that such Hedging Bank has assigned or transferred its rights to such New Hedging Bank under, and in accordance with the terms of, the relevant Hedging Contract.
|
(b)
|
Except in the case of a transfer to an Affiliate of such Hedging Bank (that meets the criteria specified in clause (a) above), no Hedging Bank is entitled to transfer its Hedging Contract other than to an Alternative Financial Institution (as defined in clause 32.4(f)).
|
(c)
|
Unless an Event of Default is continuing, neither the Borrower nor the other Obligors shall be liable for any costs (including break costs) arising from the termination of any Hedging Contracts and/or entering into new hedging arrangements on less favourable rates than the existing Hedging Contracts which are incurred as a result of voluntary transfers by Lenders or Hedging Banks. Upon any involuntary or mandatory transfers (whether due to increased costs, a change of law or otherwise (but not following an Event of Default)), the Lenders and the Hedging Banks will, to the extent possible, take all reasonable steps to mitigate any such costs from arising.
|
(d)
|
If such assignment or transfer would at the date of such assignment or transfer subject the Borrower to any greater with-holding tax liability hereunder to the New Lender than it would have had to the Existing Lender on such date then, unless an Event of Default is continuing or such assignment or transfer was made at the request or with the consent of the Borrower in order to mitigate or avoid the requirement for payment of additional amounts or increased costs or to mitigate or avoid an illegality, the Borrower shall not be obliged to pay any such additional with-holding tax under this Agreement in excess of those it would have been obliged to pay had no such assignment or transfer then taken place (but without prejudice to any obligation on the part of the Borrower to make any payment of additional amounts or increased amounts arising by virtue of a change of applicable law or in the application or interpretation thereof occurring after the date of such assignment or transfer).
|
30.8
|
Performance of Hedging Contracts by Borrower
|
30.9
|
Information concerning Hedging Contracts
|
31
|
Events of Default
|
31.1
|
Non-payment
|
31.2
|
Financial covenants
|
31.3
|
Insurance
|
(a)
|
The Insurances and, if applicable, the Reinsurances of the Vessel and/or the Mooring are not placed and kept in force in the manner required by clause 27 (
Insurance
) and the Charter.
|
(b)
|
Any insurer or reinsurer either:
|
(i)
|
cancels any such Insurances or Reinsurances; or
|
(ii)
|
fails to renew any such Insurances or Reinsurances when the same are due for renewal; or
|
(iii)
|
disclaims liability under them by reason of any mis-statement or failure or default by any person.
|
(c)
|
The credit rating of any insurer (unless such Insurances are reinsured and the Reinsurance Security has been duly executed, in which case the credit rating of any reinsurer) in respect of the Insurances or, if applicable, the Reinsurances falls below the Approved Credit Rating and the insurances or, as applicable, Reinsurances are not replaced with a replacement insurer or reinsurer with an Approved Credit Rating and otherwise in compliance with clause 27 (
Insurance
) within thirty (30) days.
|
(d)
|
Any Insurer is or becomes insolvent, unless (a) the Insurances placed with such Insurer are re-placed with a replacement, solvent insurer within thirty (30) days and (b) the Reinsurance Security granted by such Insurer is promptly (and in any event within thirty (30) days following the insolvency of the Insurer) replaced by a substitute Reinsurance Security issued by the replacement insurer on substantially the same terms.
|
(e)
|
Any Insurer fails to perform or observe any material covenant or obligation to be performed or observed by it under the Reinsurance Security unless either:
|
(i)
|
the Facility Agent considers that the failure to perform or observe any such material covenant or obligation is capable of remedy and the failure is remedied within thirty (30) days of the Facility Agent giving notice to the Borrower and/or the Insurer; or
|
(ii)
|
within such thirty (30) day period, the Insurances placed with such Insurer are re-placed with a replacement insurer and the Reinsurance Security granted by such Insurer is replaced by a substitute Reinsurance Security issued by the replacement insurer on substantially the same terms.
|
(f)
|
Any representation made by an Insurer in any Reinsurance Security is or proves to have been incorrect or misleading in any material respect when made unless either:
|
(i)
|
the Facility Agent considers that the incorrectness or misleading nature of the relevant representation is capable of remedy and such action as the Facility Agent may (and, if so instructed by the Majority Lenders, shall) require is taken to remedy such breach within thirty (30) days of the Facility Agent giving notice to the Borrower and/or the Insurer; or
|
(ii)
|
within such thirty (30) days period, the Insurances placed with such Insurer are re-placed with a replacement insurer and the Reinsurance Security granted by such Insurer is replaced by a substitute Reinsurance Security issued by the replacement insurer on substantially the same terms.
|
(g)
|
Either:
|
(i)
|
it is or becomes unlawful for an Insurer to perform any of its obligations under any Reinsurance Security and/or any Security Interest created or expressed to be created or evidenced by any Reinsurance Security ceases to be effective and such event would have a Material Adverse Effect; or
|
(ii)
|
any obligation of an Insurer under any Reinsurance Security is not (subject to the Legal Reservations) or ceases to be legal, valid, binding or enforceable and the cessation would have a Material Adverse Effect,
|
31.4
|
Other obligations
|
(a)
|
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in clauses 31.1 (
Non-payment
), 31.2 (
Financial covenants
) and 31.3 (
Insurance
)).
|
(b)
|
No Event of Default under clause (a) above will occur if the Facility Agent considers that the failure to comply is capable of remedy and the failure is remedied within thirty (30) Business Days of the Facility Agent giving notice to the Borrower.
|
31.5
|
Misrepresentation
|
(a)
|
Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.
|
(b)
|
No Event of Default under clause 31.5(a) above will occur if the Facility Agent considers that the consequence of the consequences of the misrepresentation or mis-statement are capable of remedy and such action as the Facility Agent may require is taken to remedy such breach and/or the effects thereof within ten (10) Business Days of the Facility Agent giving notice to the Borrower of such misrepresentation or mis-statement.
|
31.6
|
Cross default
|
(a)
|
Any Financial Indebtedness of the Borrower, any Sponsor, any Shareholder, any Guarantor (each a
Relevant Person
) 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).
|
(b)
|
Any commitment for any Financial Indebtedness of any Relevant Person is cancelled or suspended by a creditor of that Relevant Party as a result of an event of default (however described).
|
(c)
|
The counterparty to a Treasury Transaction entered into by any Relevant Person including, without limitation, under the Hedging Contracts) becomes entitled to terminate that Treasury Transaction early by reason of an event of default (however described).
|
(d)
|
Any creditor of any Relevant Person becomes entitled to declare any Financial Indebtedness (other than any Subordinated Loan) of that Relevant Person due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e)
|
No Event of Default will occur under this clause 31.6 (
Cross Default
) if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within clauses (a) to (d) above is in the case of the Borrower, less than $1,000,000 (or its equivalent in any other currency or currencies).
|
(f)
|
No Event of Default will occur under this clause 31.6 (
Cross Default
) if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within clauses (a) to (d) above in the case of either Guarantor is less than $10,000,000 (or its equivalent in any other currency or currencies)
|
(g)
|
No Event of Default will occur under this clause 31.6 (
Cross Default
) in the case PSU if the Lenders (acting reasonably) agree that a Replacement Shareholder may be appointed pursuant to and in accordance with clause 29.17 (
Replacement shareholder
) and such Replacement Shareholder is appointed on terms satisfactory to the Facility Agent within forty five (45) days or such longer period as may be approved by the Facility Agent (acting on the instructions of the Lenders) of any event described within clauses (a) to (d) above having taken place (provided that none of the events described within clauses (a) to (d) above has occurred in respect of such Replacement Shareholder).
|
31.7
|
Insolvency
|
(a)
|
Any Obligor or the Charterer or either Charterer Shareholder is unable or admits inability to pay its debts as they fall due, 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 with a view to rescheduling any of its indebtedness.
|
(b)
|
The value of the assets of any Obligor or the Charterer or either Charterer Shareholder is less than its liabilities (taking into account contingent and prospective liabilities).
|
(c)
|
A moratorium is declared in respect of any indebtedness of any Obligor or the Charterer or either Charterer Shareholder. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.
|
(d)
|
No Event of Default will occur under this clause 31.7 (
Insolvency
) in relation to the O&M Contractor or Golar Management Norway if a replacement operator which is an Approved Operator is appointed pursuant to and in accordance with clause 24.4(c) (
Operation and Maintenance
) within thirty (30) days of any event described in this clause 31.7 (
Insolvency
) having taken place (provided that none of the events described in this clause 31.7 (
Insolvency
) has occurred in respect of such replacement operator).
|
(e)
|
No Event of Default will occur under this clause 31.7 (
Insolvency
) in relation to PSU if the Lenders (acting reasonably) agree that a Replacement Shareholder may be appointed pursuant to and in accordance with clause 29.17 (
Replacement shareholder
) and such Replacement Shareholder is appointed on terms satisfactory to the Facility Agent within forty five (45) days or such longer period as may be approved by the Facility Agent (acting on the instructions of the Lenders) of any event described in this clause 31.7 (
Insolvency
) having taken place (provided that none of the events described in this clause 31.7 (
Insolvency
) has occurred in respect of such Replacement Shareholder).
|
31.8
|
Insolvency proceedings
|
(a)
|
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
(i)
|
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 Obligor or the Charterer or either Charterer Shareholder;
|
(ii)
|
a composition, compromise, assignment or arrangement with any creditor of any Obligor or the Charterer or either Charterer Shareholder;
|
(b)
|
a liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer is appointed in respect of any Obligor or the Charterer or either Charterer Shareholder or any of its assets (including the directors of any person requesting a person to appoint any such officer in relation to it or any of its assets); or
|
(c)
|
any Security Interest over any assets of the Borrower or all or substantially all of the assets of any Obligor (other than the Borrower) or the Charterer or either Charterer Shareholder is enforced,
|
(d)
|
No Event of Default will occur under this clause 31.8 (
Insolvency proceedings
):
|
(i)
|
in respect of any winding-up petition (or analogous procedure or step) which is frivolous or vexatious and is discharged, stayed or dismissed within fourteen (14) days of commencement or, if earlier, the date on which it is advertised; or
|
(ii)
|
in respect of any enforcement of a Permitted Maritime Lien which is discharged and/or dismissed within fourteen (14) days of such enforcement;
|
(iii)
|
to any event described above in relation to the O&M Contractor or Golar Management Norway where a replacement operator which is an Approved Operator is appointed pursuant to and in accordance with clause 24.4(c) (
Operation and Maintenance
) within thirty (30) days of any event described within clauses (a) to (c) above having taken place (provided that none of the events described within clauses (a) to (c) above has occurred in respect of such replacement operator); or
|
(iv)
|
to any event described above in relation to PSU if the Lenders (acting reasonably) agree that a Replacement Shareholder may be appointed pursuant to and in accordance with clause 29.17 (
Replacement shareholder
) and such Replacement Shareholder is appointed on terms satisfactory to the Facility Agent within forty five (45) days or such longer period as may be approved by the Facility Agent (acting on the instructions of the Lenders) of any event described within clauses (a) to (c) above having taken place (provided that none of the events described within clauses (a) to (c) above has occurred in respect of such Replacement Shareholder).
|
31.9
|
Creditors’ process
|
(a)
|
Any expropriation, attachment, sequestration, distress, execution or analogous process affects any asset or assets of the Borrower, any Sponsor, and Shareholder, any Guarantor, the O&M Contractor or Golar Management Norway and is not discharged within fourteen (14) days.
|
(b)
|
Any judgment or order is made against any such Obligor and is not stayed or complied with within seven (7) days.
|
(c)
|
No Event of Default will occur under clauses (a) and (b) above in relation to either Guarantor if the aggregate amount of the claim relating to any event described in clauses (a) and/or (b) above is less than US$10,000,000.
|
(d)
|
No Event of Default will occur under clauses (a) and (b) above in relation to the O&M Contractor or Golar Management Norway if a replacement operator which is an Approved Operator is appointed pursuant to and in accordance with clause 24.4(c) within thirty (30) days of any event described in clauses (a) and/or (b) above having taken place (provided that none of the events described within (a) and/or (b) has occurred in respect of such replacement operator).
|
(e)
|
No Event of Default will occur under clauses (a) and (b) above in relation to PSU if the Lenders (acting reasonably) agree that a Replacement Shareholder may be appointed pursuant to and in accordance with clause 29.17 (
Replacement shareholder
) and such Replacement Shareholder is appointed on terms satisfactory to the Facility Agent within forty five (45) days or such longer period as may be approved by the Facility Agent (acting on the instructions of the Lenders) of any event described within clauses (a) to (b) above having taken place (provided that none of the events described within clauses (a) to (b) above has occurred in respect of such Replacement Shareholder).
|
31.10
|
Validity and ranking of Security
|
31.11
|
Cessation of business
|
(a)
|
Any Obligor suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business and for this avoidance of doubt this does not include a disposal of an asset which is unrelated to the Project by Golar Energy or the Pre-Completion Guarantor to another member of the Pre-Completion Guarantor Group and which would not have a material adverse effect on the ability of Golar Energy or the Pre-Completion Guarantor to perform its obligations under any Finance Document to which it is a party.
|
(b)
|
No Event of Default will occur under clause 31.11(a) in relation to the O&M Contractor if a replacement operator which is an Approved Operator is appointed pursuant to and in accordance with clause 24.4(c) (
Operation and Maintenance
) within thirty (30) days of any event described in clause 31.11(a) having taken place (provided that none of the events described in clause 31.11(a) has occurred in respect of such replacement operator).
|
31.12
|
Ownership of the Obligors
|
(a)
|
The Sponsors, together, cease or, as the case may be, the Pre-Completion Guarantor ceases to, directly or indirectly, legally and beneficially, own one hundred per cent (100%) of the shares in the Borrower without the prior written consent of the Facility Agent (acting on the instructions of all of the Lenders) or the Final Repayment Guarantor ceases to retain management control over the Borrower or the Pre-Completion Guarantor ceases to retain management control over the Final Repayment Guarantor.
|
(b)
|
The Sponsors transfer any shareholding in the Borrower to a transferee which fails to meet the Lenders’ ‘Know Your Customer’ checks and/or is otherwise not acceptable to the Lenders.
|
31.13
|
Expropriation
|
31.14
|
Repudiation and rescission of Finance Documents
|
31.15
|
Litigation
|
(a)
|
Any material litigation, alternative dispute resolution, arbitration or administrative proceeding related to the Project is taking place, or threatened or a claim in respect of any such proceedings is brought against the Borrower, any Sponsor, any Shareholder, any Guarantor, the O&M Contractor or Golar Management Norway or any of their respective assets, rights or revenues.
|
(b)
|
No Event of Default will occur under clause 31.15(a) above in relation to either Guarantor if the aggregate amount of the claim relating to any event described in clause 31.15(a) above is less than US$10,000,000.
|
(c)
|
No Event of Default will occur under clause 31.15(a) above in relation to the O&M Contractor or Golar Management Norway if a replacement operator which is an Approved Operator is appointed pursuant to and in accordance with clause 24.4(c) within thirty (30) days of any event described in clauses (a) and/or (b) above having taken place (provided that none of the events described within (a) and/or (b) has occurred in respect of such replacement operator).
|
31.16
|
Material Adverse Effect
|
31.17
|
Arrest of Vessel / Mooring
|
31.18
|
Vessel registration
|
31.19
|
Hedging Contracts
|
(a)
|
an Event of Default (as defined in any Hedging Contract or such other equivalent definition(s) in any Hedging Contract) has occurred and is continuing under any Hedging Contract; or
|
(b)
|
an Early Termination Date (as defined in any Hedging Contract or such other equivalent definition in any Hedging Contract) has occurred (except with the approval of the Facility Agent or pursuant to the occurrence of a Termination Event (as defined in any Hedging Contract or such other equivalent definition(s) in any Hedging Contract) or been or become capable of being effectively designated under any Hedging Contract; or
|
(c)
|
subject to the proviso in clause 31.19(b) above, any Hedging Contract is terminated, cancelled, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect for any reason in the case of a prepayment of all or part of the Loans); or
|
(d)
|
the Borrower fails to enter into a Hedging Transaction pursuant to and in accordance with clause 30.1(a) before 30 April 2018.
|
31.20
|
Breach of obligations in relation to the Project Accounts
|
31.21
|
Breach of Letter of Quiet Enjoyment
|
31.22
|
Manager covenants
|
(a)
|
Subject to (b) below, failure of the O&M Contractor and/or Golar Management Norway to perform or observe any covenant or obligation to be performed or observed by it under the O&M Contract and/or the Golar Management Norway Management Agreement where such failure to perform or observe any such covenant or obligation by it is not remedied in accordance with the requirements of the O&M Contract or, as the case may be, the Golar Management Norway Management Agreement.
|
(b)
|
No Event of Default will occur under this clause 31.22 (
Manager covenants
) if a replacement operator which is an Approved Operator is appointed pursuant to and in accordance with clause 22.4.3 within thirty (30) days of the deadline for remedy of the relevant event specified in the O&M Contract (or, if no such deadline is specified, within thirty (30) days of the event described in this clause 31.22 (
Manager covenants
) having taken place) (provided that none of the events described in this clause 31.22 (
Manager covenants
) has occurred in respect of such replacement operator).
|
31.23
|
Qualification of accounts
|
31.24
|
Charter termination and breach
|
(a)
|
an Event of Owner’s Default (as defined in clause 29.1 of the Charter) occurs;
|
(b)
|
(except as a result of the Vessel becoming a Total Loss or in the circumstances contemplated in clause 7.9) the Charter and/or the Charterer Undertaking and/or the Charter Letters of Credit and/or a Charter LoU POA is terminated, cancelled, rescinded, repudiated or frustrated or is declared terminated, cancelled, rescinded, repudiated or frustrated for any reason or varied or amended in breach of this Agreement; or
|
(c)
|
(except in the circumstances contemplated in clause 7.9) the Vessel is withdrawn from service under the Charter before the time the Charter was scheduled to expire; or
|
(d)
|
an Event of Charterer’s Default (as defined in clause 29.2 of the Charter) occurs under clause 29.2(e) of the Charter and the non-payment is not rectified and any shortfall not paid (i) by the Borrower from amounts available on the Free Cash Accounts or (ii) by either Sponsor or either Guarantor (at their absolute discretion) or (iii) by the Charterer within the 15 days of the Facility Agent giving notice to the Borrower or, if earlier within the 15 days of the Borrower giving notice to the Charterer; or
|
(e)
|
the Borrower agrees replacement or supplemental security in connection with any disposal by either Charterer Shareholder of its shares in the Charterer as may be required to be provided or procured by the Charterer pursuant to clauses 17.6 and 17.7 of the Charter without prior consent of the Lenders (acting reasonably); or
|
(f)
|
the Borrower fails to provide notice to the Lenders immediately upon becoming aware of any proposed disposal of shares in the Charterer by either Charterer Shareholder; or
|
(g)
|
either Charterer Shareholder intends to dispose of any or all of its shares in the Charterer and the Charterer fails to provide or procure replacement or supplemental security to the relevant Charter Undertakings within 14 calendar days of the date that the written notice referred to in clause 17.5 of the Charter should have been provided under clause 17.5 of the Charter, such security to be in form and substance satisfactory to the Lenders (acting reasonably); or
|
(h)
|
the Charterer is otherwise in breach of its obligations under the Charter or any Charterer Shareholders are in breach of its obligations under its Charterer Undertaking in any case which would have a Material Adverse Effect.
|
31.25
|
Project Agreements
|
31.26
|
Environmental Incidents
|
31.27
|
Abandonment of the Project or the Vessel / Mooring
|
31.28
|
Dry-docking
|
31.29
|
Operation of the Vessel / Mooring
|
(a)
|
The Borrower ceases to be the owner of the Vessel or the Mooring, unless the Vessel or, as the case may be, the Mooring has been sold in accordance with clauses 7.8 (
Sale of Vessel / Mooring System
) and/or 25.2 (
Sale or other disposal of the Vessel / Mooring
).
|
(b)
|
The O&M Contractor and/or Golar Management Norway cease to be the operator of the Vessel and the Mooring under the O&M Contract or, as the case may be, the Golar Management Norway Management Agreement, unless a replacement operator which is an Approved Operator is appointed pursuant to and in accordance with clause 24.4(c) (
Operation and Maintenance
) within thirty (30) days of such party ceasing to be the operator.
|
31.30
|
Redeployment of the Vessel
|
31.31
|
Sanctions
|
(a)
|
The Borrower or the Sponsors (or either of them) are designated as a Restricted Party, or becomes owned or controlled by a Restricted Party, or the Borrower acts directly or indirectly on behalf of a Restricted Party, or becomes the owner or controller of a Restricted Party
|
(b)
|
The Borrower or the Sponsors (or either of them) fails to comply with any Sanctions.
|
31.32
|
Final Acceptance
|
31.33
|
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 it shall immediately become payable on demand by the Facility Agent on the instructions of the Majority Creditors; and/or
|
(d)
|
declare that all outstanding Hedging Transactions entered into under the Hedging Contracts shall be terminated or closed out by the Hedging Banks;
|
(e)
|
declare that no withdrawals be made from any Project Account; and/or
|
(f)
|
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents including but not limited to making a demand under either Guarantee and/or enforcing any Security Interest created by the Security Documents.
|
32
|
Position of Hedging Banks
|
32.1
|
Rights of Hedging Bank
|
32.2
|
No voting rights
|
32.3
|
Acceleration and enforcement of security
|
32.4
|
Close out of Hedging Contracts
|
(a)
|
The parties to this Agreement agree that at any time on and after any Event of Default the Facility Agent (acting on the instructions of the Majority Lenders) shall be entitled, by notice in writing to a Hedging Bank, to instruct such Hedging Bank to terminate and close out any Hedging Transactions (or parts thereof) with the Borrower (on the basis that the Hedging Transactions shall be closed out pro rata and pari passu). The relevant Hedging Bank will terminate and close out the relevant Hedging Transactions (or parts thereof) and/or the relevant Hedging Contracts in accordance with such notice immediately upon receipt of such notice.
|
(b)
|
No Hedging Bank shall be entitled to terminate or close out any Hedging Contract or any Hedging Transaction under it prior to its stated maturity except:
|
(i)
|
in accordance with a notice served by the Facility Agent under clause (a); or
|
(ii)
|
in accordance with clause 30.6 (
Unwinding of Hedging Contracts
); or
|
(iii)
|
if the Borrower has not paid amounts due under the relevant Hedging Contract and such amounts remain unpaid for a period of five (5) days after the due date for payment; or
|
(iv)
|
if the Facility Agent takes any action under clause 31.33; or
|
(v)
|
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; or
|
(vi)
|
if, following the occurrence of any Bankruptcy, Illegality, Tax Event, Tax Event Upon Merger, Force Majeure Event or Additional Termination Event (as each such expression is defined in the Hedging Master Agreements), the relevant Hedging Bank is entitled to terminate or close out the relevant Hedging Transaction pursuant to the relevant Hedging Contract.
|
(c)
|
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 Bank shall forthwith pay that net amount (together with interest earned on such amount) to the Security Agent for application in accordance with clause 37.22 (
Order of application
).
|
(d)
|
No Hedging Bank 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.
|
(e)
|
If, as a result of any termination or close-out of any Hedging Transaction pursuant to any Illegality, Tax Event or Force Majeure Event as referred to in clause 32.4(b)(vi), the Borrower would fail to comply with the requirements set out in clause 30.1(a), the relevant Hedging Bank shall, as a condition of its right to designate an Early Termination Date, use all reasonable efforts (which will not require such Hedging Bank to incur a loss, other than immaterial, incidental expenses (as determined by such Hedging Bank in its reasonable discretion)) to transfer within twenty (20) days (in the case of Tax Event or Force Majeure Event) or seven (7) Business Days (in the case of Illegality) after it gives notice of its intention to terminate or close out the relevant Hedging Transaction(s) all its rights and obligations under the relevant Hedging Contract to another of its Offices (as defined in the Hedging Master Agreements) or Affiliates so that the relevant Termination Event (as defined in the Hedging Master Agreements) ceases to exist. The Borrower hereby consents to any such transfer. Such time period shall run concurrently with any time period relating to any transfer requirement or Waiting Period (as defined in the Hedging Master Agreements) under the relevant Hedging Contract.
|
(i)
|
If the relevant Hedging Bank is unable to effect the transfer referred to in clause 32.4(e) within the relevant time period it will give notice to the Borrower (copied to the Facility Agent) to that effect within such twenty (20) day (or, as the case may be, seven (7) Business Day) period, whereupon the Hedging Bank may then designate an Early Termination Date with respect to the relevant Hedging Transaction(s) or if a Hedging Bank designates an Early Termination Date as a result of a Tax Event Upon Merger, or if the Borrower (as a Non-defaulting Party or Non-affected Party (as those terms are defined in the Hedging Master Agreements) terminates any Hedging Transaction in accordance with the terms of the relevant Hedging Contract, then the Borrower shall follow the process set out in clause 30.1(b) in order to prevent any breach of clause 30.1(a) from arising as a result of the relevant termination or close-out referred to in clause (b)(vi) or otherwise, as applicable, upon the expiry of the period referred to in clause 30.1(j), provided that:
|
(A)
|
references in clause 30.1(b) to the notional amount of the IRS shall be treated as references to the additional notional amount necessary in order to comply with clause 30.1(a) (
Additional Notional Amount
); and
|
(B)
|
references to the Utilisation Date shall be treated as references to the date falling four (4) Business Days after the Early Termination Date designated by the relevant party with respect to the relevant terminated Hedging Transaction(s).
|
(ii)
|
In the event that no Lender is willing to take up the Additional Notional Amount in accordance with clause 30.1(b), the Borrower may enter into one or more Hedging Contracts with other banks which are regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets and entering into ISDA derivative documentation and interest rate swaps (on terms substantially the same as the Hedging Master Agreements entered into by the Original Hedging Banks on or about the date of this Agreement), the aggregate Notional Amount (as defined in such Hedging Contract(s)) of the Hedging Transactions concluded thereunder being no greater than Additional Notional Amount, with one or more Alternative Financial Institutions.
|
(iii)
|
Unless otherwise agreed, the Borrower shall complete the process referred to in this clause 32.4(f) and execute sufficient replacement Hedging Transactions to avoid a breach of clause 30.1(a) within twenty (20) days (in the case of Tax Event or Force Majeure Event) or seven (7) Business Days (in the case of Illegality) of receipt of the notice from the relevant Hedging Bank of its intention to terminate as referred to above or the date of designation of the Early Termination Date, provided that this is after the date of such notice being received.
|
32.5
|
No Enforcement Action
|
33
|
Changes to the Lenders
|
33.1
|
Assignments and transfers by the Lenders
|
(a)
|
Subject to this clause 33, a Lender (the
Existing Lender
) may:
|
(i)
|
assign any of its rights; or
|
(ii)
|
transfer by novation any of its rights and obligations,
|
(b)
|
In addition to the other rights provided to Lenders under this clause 33, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign by way of security or otherwise create a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
|
(i)
|
any charge, assignment by way of security or other Security Interest to secure obligations to a federal reserve or central bank; and
|
(ii)
|
in the case of any Lender which is a fund, any charge, assignment by way of security 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,
|
(A)
|
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
|
(B)
|
require any payments to be made by an Obligor 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.
|
33.2
|
Conditions of assignment or transfer
|
(a)
|
The consent of the Borrower is not required for an assignment or transfer by a Lender which complies with clause 33.1 and shall be at no cost to the Borrower (unless such assignment or transfer has been requested by an Obligor), but prior notice shall be given to the Borrower of any such assignment or transfer (unless an Event of Default is continuing, in which case no such notice shall be required).
|
(b)
|
The Facility Agent will promptly advise the Borrower of the assignment or transfer.
|
(c)
|
An assignment or transfer will only be effective:
|
(i)
|
in the case of an assignment, on receipt by the Facility Agent of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Finance Parties and the other Finance Parties as it would have been under if it was an Original Lender or, in the case of a transfer, if the procedure set out in clause 33.5 (
Procedure for transfer
) is complied with;
|
(ii)
|
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;
|
(iii)
|
on the Facility Agent (or, if appropriate, the Existing Lender) obtaining all “know your customer” or other checks relating to any person that it is required to carry out in relation to such assignment or transfer to a New Lender, the completion of which the Facility Agent (or, if appropriate, the Existing Lender) shall promptly notify to the Existing Lender (or, as appropriate, the Facility Agent) and the New Lender;
|
(iv)
|
if that Existing Lender assigns or transfers equal fractions of its Commitment and participation in the Utilisations (if any) under the Facility;
|
(v)
|
other than where a Finance Party has granted security pursuant to clause 33.1(b), if the New Lender enters into a non-disclosure agreement with the Existing Lender on similar terms to that which the Borrower previously entered into with the Existing Lender; and
|
(vi)
|
if at the time when an assignment or transfer takes effect more than one Utilisation is outstanding, the assignment of an Existing Lender’s participation in the Utilisations (if any) under the Facilities shall take effect in respect of the same fraction of each such Utilisation.
|
33.3
|
Fee
|
33.4
|
Limitation of responsibility of Existing Lenders
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i)
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
(ii)
|
the financial condition of any Obligor;
|
(iii)
|
the performance and observance by any Obligor or any other person of its obligations under the Finance Documents or any other documents;
|
(iv)
|
the application of any Basel 2 Regulation or Basel 3 Regulation to the transactions contemplated by the Finance Documents; or
|
(v)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b)
|
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Finance Parties that it:
|
(i)
|
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 2 Regulation or Basel 3 Regulation to the transactions contemplated by the Finance Documents; and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Finance Document; and
|
(ii)
|
will continue to make its own independent appraisal of the application of any Basel 2 Regulation or Basel 3 Regulation to the transactions contemplated by the Finance Documents; and
|
(iii)
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and their related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
(c)
|
Nothing in any Finance Document obliges an Existing Lender to:
|
(i)
|
accept a re-assignment or re-transfer from a New Lender of any of the rights assigned and obligations transferred under this clause 33 (
Changes to the Lenders
); or
|
(ii)
|
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 2 Regulation to the transactions contemplated by the Finance Documents or otherwise.
|
33.5
|
Procedure for transfer
|
(a)
|
Subject to the conditions set out in clause 33.2 (
Conditions of assignment or transfer
) an assignment or transfer is effected in accordance with clause 33.5(b) below when (a) the Facility Agent executes an otherwise duly completed Transfer Certificate and (b) the Facility Agent executes any document required under clause 33.2(c) 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 Facility Agent shall, 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. The Obligors and the other Finance Parties irrevocably authorise the Facility Agent to execute any Transfer Certificate on their behalf without any consultations with them.
|
(b)
|
On the Transfer Date:
|
(i)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to be released from its obligations under any Finance Document, the Existing Lender shall be released from further obligations towards the Obligors and the other Finance Parties under such Finance Documents and rights of the Obligors and the other Finance Parties against the Existing Lender under such Finance Documents shall be cancelled (being the
Discharged Rights Obligations
) (but the obligations owed by the Obligors under the Finance Documents shall not be released);
|
(ii)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under this Agreement each of the Obligors and the Existing Lender shall be released from further obligations towards one another under this Agreement and their respective rights against one another under this Agreement shall be cancelled (being the
Discharged Rights and Obligations
);
|
(iii)
|
in the case of an assignment pursuant to clause 33.5(a) above, the New Lender shall assume obligations towards each of the Obligors who are a Party and/or the Obligors and the other Finance Parties shall acquire rights against the New Lender which differ from the Discharged Rights and Obligations only insofar as the New Lender has assumed and/or the Obligors and the other Finance Parties acquired the same in place of the Existing Lender;
|
(iv)
|
in the case of a transfer pursuant to clause 33.5(b) above, each of the Obligors who are a Party and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(v)
|
the other Finance Parties and the New Lender shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Security Agent, Existing Lender and the other Finance Parties shall each be released from further obligations to each other under the Finance Documents; and
|
(vi)
|
the New Lender shall become a Party to the Finance Documents as a “Lender” for the purposes of all the Finance Documents.
|
33.6
|
Copy of Transfer Certificate to Borrower
|
33.7
|
Disclosure of information
|
(a)
|
any person to (or through) whom a Finance Party assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under the Finance Documents;
|
(b)
|
any person with (or through) whom a Finance Party 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;
|
(c)
|
any authority in any jurisdiction, including any central bank or other fiscal or monetary authority;
|
(d)
|
any person that has provided security or credit support for the Borrower’s obligations to the Finance Parties;
|
(e)
|
any person to whom a Finance Party has granted security pursuant to clause 33.1(b);
|
(f)
|
a rating agency or the contractors or service providers (including but not limited to any host server or storage provider) it uses for its normal operational and/or administrative functions or its professional advisers who are subject to professional obligations to maintain the confidentiality of such information;
|
(g)
|
any receiver appointed by any Finance Party;
|
(h)
|
any person:
|
(i)
|
who is a person or who belongs to a class of persons specified in the second column of the Third Schedule to the Banking Act;
|
(ii)
|
to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation (including, but not limited to, any applicable stock exchange rules and the Banking Acts) or by order of court or tribunal; or
|
(iii)
|
to whom such Finance Party is under a duty of disclosure.
|
(i)
|
to any insurance broker or insurer of the Finance Parties or the Obligors or provider of credit protection in relation to the Finance Parties’ rights and/or obligations hereunder provided that (i) such information is required by such person to carry out their normal insurance or ,as the case may be, rating activities in relation to the Finance Documents and/or the Obligors and (ii) such persons have been informed in writing of the confidential nature of such information;
|
(j)
|
to any person where reasonably necessary for the purpose of giving effect to the instructions of the Obligors (including, without limitation, such information as is requested or required by any person for the purpose of effecting payment or transfer of funds) or, with the consent of the Borrower, any other person;
|
(k)
|
to any person in connection with any legal action taken or contemplated:
|
(i)
|
against any Obligor;
|
(ii)
|
against any of the persons referred to in paragraph (d) above; or
|
(iii)
|
in relation to any products, services or facilities made available by such Finance Party to an Obligor;
|
33.8
|
Other Requirement
|
(a)
|
To the extent required by law or by any security registration office, the Existing Lender and the New Lender shall execute an assignment agreement (
cessie
) or novation agreement under Indonesian law. The Borrower hereby agrees to, and expressly authorises, any assignment and/or transfer by the Existing Lender under this clause 33. The Parties hereto agree that to the extent applicable, all requirements under Indonesian law relating to a transfer of indebtedness will have been satisfied by a transfer under this clause 33. If in relation to any transfer referred to in this clause 33, it is required under the laws of Indonesia that the Borrower or any Obligor (other than PSU) to acknowledge, consent or agree to such transfer:
|
(i)
|
The Borrower hereby authorizes and will procure that the relevant Obligor will authorise the Facility Agent and/or the Security Agent to effect such acknowledgement, consent or agreement on behalf of the Borrower and/or such Obligor;
|
(ii)
|
The Borrower agrees, if requested by the Facility Agent and/or the Security Agent, to promptly confirm and will procure that the relevant Obligor (other than PSU) will provide such acknowledgement, consent or agreement, in such form and substance satisfactory to the Facility Agent and/or the Security Agent (each acting reasonably);
|
(iii)
|
PSU hereby authorizes the Facility Agent and/or the Security Agent to effect such acknowledgement, consent or agreement on its behalf; and
|
(iv)
|
PSU agrees, if requested by the Facility Agent and/or the Security Agent, to promptly provide such acknowledgment, consent or agreement, in such form and substance satisfactory to the Facility Agent and/or the Security Agent (each acting reasonably).
|
(b)
|
The Borrower hereby confirms that, and, as necessary, it will procure that the relevant Obligor (other than PSU) will confirm and PSU hereby confirms that upon the completion of the assignment and/or transfer referred to in this clause 33, the security interests contemplated by the relevant Security Documents shall (subject to any applicable Legal Reservations) be also be for the benefit of the New Lender.
|
34
|
Changes to the Account Bank
|
35
|
Changes to the Obligors and the O&M Contractor
|
36
|
Benefit and burden
|
37
|
Roles of Facility Agent, Security Agent, Account Bank and Co-ordination and Structuring Bank
|
37.1
|
Appointment of the Facility Agent
|
(a)
|
Each other Finance Party (other than the Security Agent) appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each such other Finance Party authorises the Facility Agent:
|
(i)
|
to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions; and
|
(ii)
|
to execute each of the Security Documents and all other documents that may be approved by the Majority Lenders for execution by it.
|
37.2
|
Duties of the Facility Agent
|
(a)
|
The Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.
|
(b)
|
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(c)
|
If the Facility 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.
|
(d)
|
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent or the Co-ordination and Structuring Bank or the Security Agent for their own account) under this Agreement it shall promptly notify the other Finance Parties.
|
(e)
|
The Facility Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
37.3
|
Role of the Co-ordination and Structuring Bank
|
37.4
|
No fiduciary duties
|
(a)
|
Nothing in this Agreement or any other Finance Document constitutes the Facility Agent or the Co-ordination and Structuring Bank as a trustee or fiduciary of any other person.
|
(b)
|
None of the Facility Agent, the Security Agent or the Co-ordination and Structuring Bank shall be bound to account to any Lender or any Hedging Bank 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.
|
37.5
|
Business with the Pre-Completion Guarantor Group
|
37.6
|
Rights and discretions of the Facility Agent
|
(a)
|
The Facility Agent may rely on:
|
(i)
|
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
(ii)
|
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his or her knowledge or within his or her power to verify.
|
(b)
|
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as facility agent for the other Finance Parties) that:
|
(i)
|
no Default has occurred (unless it has actual knowledge of a Default arising under clause 31.1 (
Non-payment
));
|
(ii)
|
any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and
|
(iii)
|
any notice or request made by the Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c)
|
The Facility Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts in the conduct of its obligations and responsibilities under the Finance Documents, subject to clause 17 (
Costs and Expenses
).
|
(d)
|
The Facility Agent may act in relation to the Finance Documents through its personnel and agents.
|
(e)
|
The Facility Agent may disclose to any other Party any information it reasonably believes it has received as facility agent under this Agreement.
|
(f)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Co-ordination and Structuring Bank 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 Facility Agent and the Co-ordination and Structuring Bank may do anything which in its opinion, is necessary or desirable to comply with any law or regulation of any jurisdiction.
|
37.7
|
Majority Lenders’ instructions
|
(a)
|
Unless a contrary indication appears in a Finance Document (including, but not limited to, clause 46.2(c) (
Exceptions
)), the Facility Agent shall:
|
(i)
|
exercise any right, power, authority or discretion vested in it as Facility Agent (including giving instructions to the Security Agent) in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Facility Agent); and
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.
|
(b)
|
Unless a contrary indication appears in a Finance Document (including, but not limited to, clause 46.2(c)), any instructions given by the Majority Lenders to the Facility Agent (in relation to any right, power, authority or discretion vested in it as Facility Agent) shall be binding on all the Finance Parties (other than the Security Agent).
|
(c)
|
The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated Indirect Tax) which it may incur in complying with the instructions.
|
(d)
|
In the absence of, or while awaiting, instructions from the Majority Lenders (or, if appropriate, the Lenders), the Facility Agent may act (or refrain from taking action) as it considers to be in the best interest of the Finance Parties.
|
(e)
|
The Facility Agent is not authorised to act on behalf of a Lender or any Hedging Bank (without first obtaining that Lender’s or that Hedging Bank’s consent) in any legal or arbitration proceedings relating to any Finance Document. This clause 37.7(e) 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.
|
(f)
|
Neither the Facility Agent nor the Co-ordination and Structuring Bank 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 Bank, in which case the Facility Agent shall promptly make the appropriate request of the Borrower if such request would be in accordance with the terms of this Agreement.
|
37.8
|
Responsibility for documentation and other matters
|
(a)
|
is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Facility Agent, the Co-ordination and Structuring Bank, an Obligor or any other person given in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or of any representations in any Finance Document or of any copy of any document delivered under any Finance Document;
|
(b)
|
is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any Project Agreement or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document or any Project Agreement;
|
(c)
|
is responsible for the application of any Basel 2 Regulation or Basel 3 Regulation to the transactions contemplated by the Finance Documents;
|
(d)
|
is responsible for 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)
|
is obliged to account to any person for any sum or the profit element of any sum received by it for its own account;
|
(f)
|
is responsible for the failure of any Obligor or any other party to perform its obligations under any Finance Document, Project Agreement or the financial condition of any such person;
|
(g)
|
is responsible to ascertain 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)
|
is responsible to investigate or make any enquiry into the title of any Obligor or any other party to any of the Charged Property or any of its other property or assets;
|
(i)
|
is responsible for the failure to register any of the Security Documents with the Registrar of Companies or any other public office;
|
(j)
|
is responsible for the failure to register any of the Security Documents in accordance with the provisions of the documents of title of any Obligor or any other party to any of the Charged Property;
|
(k)
|
is responsible for the failure to take or require any Obligor or any other party 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; or
|
(l)
|
is (unless it is the same entity as the Security Agent) responsible on account of the failure of the Security Agent to perform or discharge any of its duties or obligations under the Security Documents.
|
37.9
|
Exclusion of liability
|
(a)
|
Without limiting clause 37.9(b) (and without prejudice to the provisions of clause 40.9 (
Disruption to Payment Systems etc
.)), the Facility Agent will not be liable for any action or omission taken or committed by it under or in connection with any Finance Document or any insurance policy, unless directly caused by its gross negligence or wilful misconduct.
|
(b)
|
No Party (other than the Facility Agent) may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any insurance policy and any officer, employee or agent of the Facility Agent may rely on this clause subject to clause 1.3 (
Third party rights
) and the provisions of the Third Parties Act.
|
(c)
|
The Facility 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 Facility Agent if the Facility 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 Facility Agent for that purpose.
|
(d)
|
Nothing in this Agreement shall oblige the Facility Agent or the Co-ordination and Structuring Bank to carry out any “Know Your Customer” or other checks in relation to any person on behalf of any Lender or any Hedging Bank and each Lender and each Hedging Bank confirms to the Facility Agent and the Co-ordination and Structuring Bank that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility Agent or the Co-ordination and Structuring Bank.
|
37.10
|
Lenders’ indemnity to the Facility Agent
|
(a)
|
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):
|
(i)
|
indemnify the Facility Agent, within four (4) Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence, in relation to any FATCA-related liability or any other category of liability whatsoever) incurred by the Facility Agent (otherwise than by reason of the Facility Agent’s gross negligence or wilful misconduct) including the costs of any person engaged in accordance with clause 37.6(c) (
Rights and discretions of the Facility Agent
) and any Receiver in acting as its agent under the Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document or out of the Trust Property); and
|
(ii)
|
reimburse the Facility Agent for any out of pocket expenses (including reasonable legal fees and expenses) incurred by it in connection with the preparation, execution, administration or enforcement of, or legal advice in respect of rights or responsibilities under, the Finance Documents, to the extent that the Facility Agent is not reimbursed for such expenses by the Borrower pursuant to and in accordance with clause 17.1(a) (
Costs and expenses
).
|
(b)
|
The provisions of this clause 37.10 shall survive the termination or expiry of this Agreement.
|
37.11
|
Resignation of the Facility Agent
|
(a)
|
The Facility Agent may resign and appoint one of its Affiliates as successor by giving thirty (30) days prior written notice to the Lenders, the Hedging Banks, the Security Agent and the Borrower.
|
(b)
|
Alternatively the Facility Agent may resign by giving notice to the other Finance Parties and the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint a successor Facility Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Facility Agent in accordance with clause 37.11(b) above within thirty (30) days after notice of resignation was given, the Facility Agent (after consultation with the Borrower) may appoint a successor Facility Agent.
|
(d)
|
The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.
|
(e)
|
The Facility Agent’s resignation notice shall only take effect upon the appointment of a successor.
|
(f)
|
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this clause 37. Its 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.
|
(g)
|
After consultation with the Borrower, the Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with clause 37.11(b). In this event, the Facility Agent shall resign in accordance with clause 37.11(b).
|
(h)
|
The Agent shall resign in accordance with clause 37.11(b) (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant clause 37.11(c) above) if on or after the date which is three (3) months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
(i)
|
the Agent fails to respond to a request under clause 13.10 (
FATCA Information
) and the Borrower or 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;
|
(ii)
|
the information supplied by the Agent pursuant to clause 13.10 (
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
|
(iii)
|
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,
|
37.12
|
Confidentiality
|
(a)
|
In acting as facility agent for the Finance Parties, the Facility 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.
|
(b)
|
If information is received by another division or department of the Facility Agent, it may be treated as confidential to that division or department and the Facility Agent shall not be deemed to have notice of it.
|
(c)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent, nor the Co-ordination and Structuring Bank 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 a breach of a fiduciary duty.
|
37.13
|
Relationship with the Lenders and the Hedging Banks
|
(a)
|
The Facility Agent may treat each Lender and each Hedging Bank as a Lender or (as the case may be) a Hedging Bank, entitled to payments under this Agreement and acting through its Facility Office unless it has received not less than five (5) Business Days prior notice from that Lender or that Hedging Bank to the contrary in accordance with the terms of this Agreement.
|
(b)
|
Each Lender and each Hedging Bank shall supply the Facility Agent with any information that the Facility Agent may reasonably specify as being necessary or desirable to enable the Facility Agent or the Security Agent to perform its functions as Facility Agent or Security Agent. Each Lender and each Hedging Bank shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent.
|
(c)
|
Each Lender shall supply the Facility Agent with any information required by the Facility Agent in order to calculate the Mandatory Cost in accordance with Schedule 5 (
Mandatory Cost Formulae
).
|
37.14
|
Credit appraisal by the Lenders and the Hedging Banks
|
(a)
|
the financial condition, status and nature of each Obligor and the Pre-Completion Guarantor Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, Project Agreement and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or Project Agreement;
|
(c)
|
the application of any Basel 2 Regulation or Basel 3 Regulation to the transactions contemplated by the Finance Documents;
|
(d)
|
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;
|
(e)
|
the adequacy, accuracy and/or completeness of any information provided by the Facility Agent, any Party or by any other person under or in connection with any Finance Document or Project Agreement, 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 Project Agreement; and
|
(f)
|
the right of title of any person 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.
|
37.15
|
Reference Banks
|
37.16
|
Change in scope of work of the Facility Agent and/or Security Agent
|
37.17
|
Deduction from amounts payable by the Facility Agent
|
37.18
|
Common parties
|
37.19
|
Security Agent
|
(a)
|
Each other Finance Party appoints the Security Agent to act as its trustee under and in connection with the Security Documents.
|
(b)
|
Each other Finance Party authorises the Security Agent:
|
(i)
|
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
|
(ii)
|
to execute each of the Security Documents and all other documents that may be approved by the Facility Agent and/or the Majority Lenders for execution by it.
|
(c)
|
The Security Agent accepts its appointment under clause 37.19 (
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 37.19 - 37.27 (inclusive) and the Security Documents to which it is a party.
|
37.20
|
Application of certain clauses to Security Agent
|
(a)
|
Clauses 37.6 (
Rights and discretions of the Facility Agent
), 37.8 (
Responsibility for documentation and other matters
), 37.9 (
Exclusion of liability
), 37.10 (
Lenders’ indemnity to the Facility Agent
), 37.11 (
Resignation of the Facility Agent
), 37.12 (
Confidentiality
), 37.13 (
Relationship with the Lenders and the Hedging Banks
), 37.14 (
Credit appraisal by the Lenders and the Hedging Banks
) and 37.17 (
Deduction from amounts payable by the Facility 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 “Facility Agent” in these clauses shall extend to include in addition a reference to the “Security Agent” in its capacity as such.
|
(b)
|
In addition, clause 37.11 (
Resignation of the Facility Agent
) shall, for the purposes of its application to the Security Agent pursuant to clause 37.20(a), have the following additional sub-clause:
|
37.21
|
Instructions to Security Agent
|
(a)
|
Unless a contrary indication appears in a Finance Document, the Security Agent shall:
|
(i)
|
exercise any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Facility Agent (or, if so instructed by the Facility Agent, refrain from exercising any right, power, authority or discretion vested in it as Security Agent); and
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with such an instruction of the Facility Agent (the Facility Agent in each case acting on the instructions of the Majority Lenders or, if appropriate pursuant to clause 46.2 (
Exceptions
), the Lenders).
|
(b)
|
Unless a contrary indication appears in a Finance Document, any instructions given by the Facility Agent to the Security Agent in accordance with clause 37.21(a) will be binding on the Finance Parties.
|
(c)
|
The Security Agent may refrain from acting in accordance with the instructions of the Facility Agent until it has received such security as it may require for any cost, loss or liability (together with any associated Indirect Tax) which it may incur in complying with the instructions.
|
(d)
|
In the absence of, or while awaiting, instructions from the Facility Agent, (including in exceptional circumstances where time does not permit the Facility Agent obtaining instructions from the Lenders and urgent action is required) the Security Agent may act (or refrain from taking action) as it considers to be in the best interest of the Finance Parties.
|
(e)
|
The Security Agent is not authorised to act on behalf of another Finance Party (without first obtaining that Finance Party’s consent) in any legal or arbitration proceedings relating to any Finance Document but this is without prejudice to clauses 37.21(a) and 37.21(d), including the right to enforce the Security Documents in accordance with these clauses.
|
37.22
|
Order of application
|
(a)
|
The Security Agent agrees to apply the Trust Property in accordance with the following respective claims:
|
(i)
|
first
, as to a sum equivalent to the amounts payable to the Facility Agent and/or the Security Agent under the Finance Documents (excluding any amounts received by the Facility Agent and/or the Security Agent pursuant to clause 37.10 (
Lenders’ indemnity to the Facility Agent
) as extended to the Security Agent pursuant to clause 37.20 (
Application of certain clauses to Security Agent
)), for the Facility Agent and/or the Security Agent absolutely;
|
(ii)
|
secondly
, as to a sum equivalent to any other unpaid fees, costs (including, without limitation, Break Costs) and expenses of the Facility Agent, the Security Agent, the Co-ordination and Structuring Bank, the Account Bank, the Mandated Lead Arranger and any Receiver under the Finance Documents;
|
(iii)
|
thirdly
, in or towards payment, on a
pari passu
basis, to (i) the Lenders
pro rata
of any accrued interest, fee or commission due but unpaid under the Finance Documents and (ii) the Hedging Banks
pro rata
of any sums (other than swap termination / close-out payments sums under the Hedging Contracts) owing to them under any of the Finance Documents;
|
(iv)
|
fourthly
, in or towards payment, on a
pari passu
basis, to:
|
(v)
|
the Lenders
pro rata
of any principal which is due (or overdue) but unpaid under the Finance Documents; and
|
(vi)
|
the Hedging Banks
pro rata
of any termination sums / close-out payments owing to them under the Hedging Contracts;
|
(vii)
|
fifthly
, until such time as the Security Agent is satisfied that all obligations owed to the Finance Parties 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 under the Finance Documents and further application in accordance with this clause 37.22(a) as and when any such amounts later fall due, to the extent there remains a risk of an insolvency (as described in clause 31.7) and/or insolvency proceedings (as described in clause 31.8) affecting the Borrower;
|
(viii)
|
sixthly
, to such other persons (if any) as are legally entitled thereto in priority to the Obligors; and
|
(ix)
|
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.
|
(b)
|
The Security Agent 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 Facility Agent) 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 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.
|
(c)
|
The Security Agent 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 37.22 by paying such amounts to the Facility Agent for distribution in accordance with clause 40 (
Payment mechanics
).
|
37.23
|
Perpetuities
|
37.24
|
Powers and duties of the Security Agent as trustee of the security
|
(a)
|
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;
|
(b)
|
shall (subject to clause 37.22 (
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;
|
(c)
|
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
|
(d)
|
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).
|
37.25
|
All enforcement action through the Security Agent
|
37.26
|
Co-operation to achieve agreed priorities of application
|
37.27
|
Indemnity from Trust Property
|
(a)
|
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 an
Indemnified 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 Indemnified Person:
|
(i)
|
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;
|
(ii)
|
as a result of any breach by an Obligor or any other party (except a Finance Party) of any of its obligations under any Finance Document;
|
(iii)
|
in respect of any Environmental Claim made or asserted against an Indemnified Person which would not have arisen if the Finance Documents had not been executed; and
|
(iv)
|
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.
|
(b)
|
The rights conferred by this clause 37.27 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 37.27 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.
|
37.28
|
Finance Parties to provide information
|
37.29
|
Release to facilitate enforcement and realisation
|
37.30
|
Undertaking to pay
|
37.31
|
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,
|
37.32
|
Non-recognition of trust
|
(a)
|
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 37, 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
|
(b)
|
the provisions of this clause 37 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.
|
37.33
|
Role of Account Bank
|
(a)
|
Each Party agrees that the Account Bank shall, for so long as it is the Account Bank, have all of the rights and obligations expressed to be granted to, and assumed by, the Account Bank under the Finance Documents.
|
(b)
|
The Account Bank shall not be obliged to check whether any proposed withdrawal from a Project Account is permitted or prohibited by this Agreement.
|
(c)
|
The Account Bank acknowledges that:
|
(i)
|
each Project Account is the subject of Security granted by the Borrower concerned in favour of the Security Agent as security for the Secured Obligations; and
|
(ii)
|
it is not entitled to, and undertakes not to claim or exercise, any lien, right of set-off, right to combine or consolidate accounts or any other Security over, against or with respect to any Project Account or moneys standing to the credit of any Project Account or in the course of being credited to any Project Account.
|
(d)
|
The Account Bank shall, in relation to each Project Account:
|
(i)
|
comply with all instructions given to it and provide such information as may be required from it in relation to the Project Accounts pursuant to the provisions of Clause 28 (
Project Accounts, Receivables and Insurance Proceeds
);
|
(ii)
|
not permit any Project Account to be closed without the prior consent of the Facility Agent;
|
(iii)
|
act upon any instruction given by the Agent or the Security Agent in accordance with the Finance Documents to which it is a party; and
|
(iv)
|
in the event of any conflict between the terms of this Agreement and any mandate or other agreements with the Borrower treat this Agreement as taking precedence.
|
(e)
|
Nothing in this Agreement constitutes the Account Bank as a trustee or fiduciary of any other person.
|
(f)
|
The Account Bank shall not be bound to account to any other Finance Party for any sum or the profit element of any sum received by it for its own account.
|
(g)
|
The Account Bank may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any Obligor and any of its respective Affiliate.
|
38
|
Conduct of business by the Finance Parties
|
38.1
|
Finance Parties tax affairs
|
(a)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b)
|
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
|
(c)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
38.2
|
Finance Parties acting together
|
38.3
|
Majority Lenders
|
(a)
|
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 Facility Agent whether or not this is the case.
|
(b)
|
If, within the decision period set by the Facility Agent (which shall not, unless otherwise required under any other provision of the Finance Documents, be less than fifteen (15) Business Days of the Facility 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 Facility 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 Facility Agent shall treat any Lender which has not so responded as having indicated a desire to be bound by the wishes of 66
2
/
3
per cent. of those Lenders (measured in terms of the total Commitments of those Lenders) which have so responded.
|
(c)
|
For the purposes of clause 38.3(b), any Lender which notifies the Facility Agent of a wish or intention to abstain on any particular issue shall be treated as if it had not responded.
|
(d)
|
Clauses 38.3(b) and 38.3(c) shall not apply in relation to those matters referred to in, or the subject of, clause 46.2 (
Exceptions
).
|
38.4
|
Conflicts
|
(a)
|
The Borrower acknowledges that the Co-ordination and Structuring Bank and its parent undertaking, subsidiary undertakings and fellow subsidiary undertakings (together a
Co-ordination and Structuring Bank 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.
|
(b)
|
No member of a Co-ordination and Structuring Bank 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 a Co-ordination and Structuring Bank Group has as Facility Agent in respect of the Finance Documents. The Borrower also acknowledges that no member of a Co-ordination and Structuring Bank Group has any obligation to use or furnish to any Obligor information obtained from other persons for their benefit.
|
(c)
|
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.
|
39
|
Sharing among the Finance Parties
|
39.1
|
Payments to Finance Parties
|
(a)
|
the Recovering Finance Party shall, within four (4) Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b)
|
the Facility 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 Facility Agent and distributed in accordance with clause 40 (
Payment mechanics
), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Finance Party shall, within four (4) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the
Sharing Payment
) equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with clause 40.5 (
Partial payments
).
|
39.2
|
Redistribution of payments
|
39.3
|
Recovering Finance Party’s rights
|
(a)
|
On a distribution by the Facility Agent under clause 39.2 (
Redistribution of payments
), the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in the redistribution.
|
(b)
|
If and to the extent that the Recovering Finance Party is not able to rely on its rights under clause 39.3(a) above, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.
|
39.4
|
Reversal of redistribution
|
(a)
|
each Finance Party which has received a share of the relevant Sharing Payment pursuant to clause 39.2 (
Redistribution of payments
) shall, upon request of the Facility Agent, pay to the Facility Agent for 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); and
|
(b)
|
that Recovering Finance Party’s rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Lender for the amount so reimbursed.
|
39.5
|
Exceptions
|
(a)
|
This clause 39 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.
|
(b)
|
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 in accordance with the terms of this Agreement, if:
|
(i)
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii)
|
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.
|
40
|
Payment mechanics
|
40.1
|
Payments to the Facility Agent
|
(a)
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Facility 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 Facility Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b)
|
Payment shall be made to such account in the principal financial centre of the country of that currency with such bank as the Facility Agent specifies.
|
40.2
|
Distributions by the Facility Agent
|
40.3
|
Distributions to an Obligor
|
40.4
|
Clawback
|
(a)
|
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility 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.
|
(b)
|
If the Facility Agent pays an amount to another Party and it proves to be the case that the Facility 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 Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
40.5
|
Partial payments
|
(a)
|
If the Facility Agent receives a payment for application against amounts due under the Finance Documents that is insufficient to discharge all the amounts then due and payable by an Obligor under those Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under those Finance Documents in the following order:
|
(i)
|
first
, in or towards payment pro rata of any unpaid fees, costs (including Break Costs) and expenses (ignoring any fees payable under clause 12 (
Fees
)) of the Facility Agent, the Security Agent, the Co-ordination and Structuring Bank or the Mandated Lead Arranger under those Finance Documents;
|
(ii)
|
secondly
, in or towards payment to the Lenders
pro rata
of any amount owing to the Lenders under clause 37.10 (
Lenders’ indemnity to the Facility Agent
)
including any amount resulting from the indemnity to the Security Agent under clause 37.20(a) (
Application of certain clauses to Security Agent
);
|
(iii)
|
thirdly
, in or towards payment, on a
pari passu
basis, to (i) the Lenders
pro rata
of any accrued interest, fee or commission due but unpaid under those Finance Documents and (ii) the Hedging Banks
pro rata
of any sums owing to them under any of those Finance Documents (other than any swap termination sums / close-out payments owing to them under the Hedging Contracts);
|
(iv)
|
fourthly
, in or towards payment, on a
pari passu
basis, to:
|
(A)
|
the Lenders
pro rata
of any principal which is due but unpaid under those Finance Documents; and
|
(B)
|
the Hedging Banks
pro rata
of any termination sums owing to them under the Hedging Contracts; and
|
(v)
|
fifthly
, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
(b)
|
The Facility Agent shall, if so directed by all the Lenders and the Hedging Banks, vary the order set out in paragraphs (ii) to (v) of clause 40.5(a).
|
(c)
|
Clauses 40.5(a) and 40.5(b) above will override any appropriation made by an Obligor.
|
40.6
|
No set-off by Obligors
|
40.7
|
Business Days
|
(a)
|
Any payment 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) except that in the case of the Final Maturity Date falling on a day which is not a Business Day, payment shall be required to be made on the preceding Business Day.
|
(b)
|
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.
|
40.8
|
Currency of account
|
(a)
|
Subject to clauses 40.8(b) to 40.8(c), dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b)
|
A repayment of all or part of any Loan or an Unpaid Sum and each payment of interest shall be made in dollars on its due date.
|
(c)
|
Each payment in respect of the amount of any costs, expenses or Tax 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.
|
(d)
|
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.
|
40.9
|
Disruption to Payment Systems etc.
|
(a)
|
the Facility 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 Facility Agent may deem necessary in the circumstances;
|
(b)
|
the Facility Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in clause 40.9(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;
|
(c)
|
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in clause 40.9(a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d)
|
any such changes agreed upon by the Facility Agent and the Borrower shall (whether or not it is finally determined that a 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 46 (
Amendments and grant of waivers
);
|
(e)
|
the Facility Agent shall not be liable for any damages, costs or losses 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 Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this clause 40.9; and
|
(f)
|
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
40.10
|
Indonesian Currency Law
|
(a)
|
acknowledge that each Loan granted to the Borrower under this Agreement is provided by, among others, international banks with registered principal offices outside Indonesia, and in view of the foregoing, the Parties agree that the transactions contemplated under this Agreement should be considered as an international finance transaction within the meaning of Currency Law;
|
(b)
|
notwithstanding the above, and pursuant to Article 23(2) of the Currency Law, each Party hereby agrees to settle any monetary obligations under the Finance Documents in Dollars, and the execution of the Finance Documents by the Parties shall not be deemed as a bad faith intention of that Party not to comply with the Currency Law; and
|
(c)
|
agree not to challenge or assist any party to challenge the validity of this Agreement and/or any other Finance Documents and the delivery and performance of the transactions contemplated under this Agreement and/or any other Finance Documents on the basis of non compliance to Currency Law and the Parties agree to take all steps necessary for it to comply with Currency Law, and the Implementing Regulations of Currency Law (when issued).
|
41
|
Set-off
|
42
|
Notices
|
42.1
|
Communications in writing
|
42.2
|
Addresses
|
(a)
|
in the case of any Obligor which is a Party, that identified with its name in Schedule 1 (
The original parties
);
|
(b)
|
in the case of any Obligor which is not a Party, that identified in any Finance Document to which it is a party;
|
(c)
|
in the case of any Original Lender, the Security Agent, the Facility Agent and any other original Finance Party that identified with its name in Schedule 1 (
The original parties
); and
|
(d)
|
in the case of each other Lender or Finance Party, that notified in writing to the Facility Agent on or prior to the date on which it becomes a Party in the relevant capacity,
|
42.3
|
Delivery
|
(a)
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i)
|
if by way of fax or email, when received in legible form; or
|
(ii)
|
if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
|
(b)
|
Any communication or document to be made or delivered to the Facility Agent or the Security Agent will be effective only when actually received by the Facility 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 Facility Agent or the Security Agent shall specify for this purpose).
|
(c)
|
All notices from or to an Obligor to or from a Finance Party shall be sent through the Facility Agent.
|
(d)
|
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.
|
42.4
|
Notification of address, email address and fax number
|
42.5
|
English language
|
(a)
|
Any notice given under or in connection with any Finance Document shall be in English.
|
(b)
|
All other documents provided under or in connection with any Finance Document shall be:
|
(i)
|
in English; or
|
(ii)
|
if not in English, and if so required by the Facility 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.
|
42.6
|
Deal Site
|
(a)
|
All notices, requests, demands, consents, approvals, agreements or other communications by the Facility Agent under or in respect of the Facility Agreement may be given by publication on the Deal Site. Such communication shall include notices for notification for Lenders’ participation in any utilisation and for rates of interest.
|
(b)
|
Communications posted on the Deal Site will be effective on the earlier of (i) one (1) Business Day after such communication is posted on the Deal Site and (ii) receipt by the Facility Agent of acknowledgement from the Deal Site that such communication has been posted.
|
(c)
|
The Borrower consents to the inclusion of its logo (if applicable) on the Deal Site.
|
42.7
|
Access to Deal Site
|
(a)
|
The Facility Agent will promptly on request provide access to the Deal Site to one or more representatives of other Parties.
|
(b)
|
Email contact details may be for individuals or “group” addresses. However in either case, Parties must ensure that all persons to whom they give access can properly receive the information available on the Deal Site, including under the relevant information disclosure clause.
|
(c)
|
If the Deal Site is not available for any reason, promptly following this being brought to its attention, the Facility Agent will provide communications to the Parties by another means of communications contemplated by the relevant notification clause. A Party will notify the Facility Agent promptly if it is unable to access the Deal Site.
|
(d)
|
Each of the other Parties agrees that the Facility Agent is not liable for any liability, loss, damage, costs or expenses incurred or suffered by it as a result of its access or use of the Deal Site or inability to access or use the Deal Site, other than in the case of the gross negligence or wilful misconduct of the Facility Agent.
|
42.8
|
Closure to Deal Site
|
43
|
Calculations and certificates
|
43.1
|
Accounts
|
43.2
|
Certificates and determinations
|
43.3
|
Day count convention
|
44
|
Partial invalidity
|
45
|
Remedies and waivers
|
46
|
Amendments and grant of waivers
|
46.1
|
Required consents
|
(a)
|
Subject to clause 46.2 (
Exceptions
), any term of the Finance Documents may be amended or waived with the consent of the Facility Agent (acting on the instructions of the Majority Lenders and, if it affects the rights and obligations of the Security Agent or the Facility Agent, the consent of the Facility Agent or the Security Agent and, if it affects the rights and obligations of the Hedging Banks, the consent of the Hedging Banks) and any such amendment or waiver agreed, given or effected by the Facility Agent will be binding on the other Parties.
|
(b)
|
The Facility 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.
|
46.2
|
Exceptions
|
(a)
|
An amendment or waiver that has the effect of changing or which relates to:
|
(i)
|
the definition of “Majority Lenders” in clause 1.1 (
Definitions
);
|
(ii)
|
the definition of “Last Availability Date” in clause 1.1 (
Definitions
);
|
(iii)
|
the definition of “Final Maturity Date” in clause 1.1 (
Definitions
);
|
(iv)
|
an extension to the date of payment of any amount under the Finance Documents;
|
(v)
|
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;
|
(vi)
|
an increase in, or an extension of, any Commitment;
|
(vii)
|
a change to the Borrower, any other Obligor (other than the appointment of a replacement operator which is an Approved Operator pursuant to clause 24.4(c) (
Operation and Maintenance
)) or the Charterer or either Charterer Shareholder;
|
(viii)
|
any provision which expressly requires the consent or approval of all the Lenders;
|
(ix)
|
clauses 19.1 (
Financial statements
), 19.2 (
Provision and contents of Compliance Certificate
) or 19.3 (
Requirements as to financial statements
) or clause 20 (
Financial covenants
);
|
(x)
|
clause 2.2 (
Finance Parties’ rights and obligations
), clause 33 (
Changes to the Lenders
), clause 39.1 (
Payments to Finance Parties
) or this clause 46;
|
(xi)
|
the order of distribution under clause 40.5 (
Partial payments
);
|
(xii)
|
the currency in which any amount is payable under any Finance Document;
|
(xiii)
|
the nature or scope of the Charged Property or the manner in which the proceeds of enforcement of the Security Documents are distributed; or
|
(xiv)
|
the circumstances in which the security constituted by the Security Documents are permitted or required to be released under any of the Finance Documents,
|
(b)
|
Amendments to or waivers in respect of the Hedging Contracts may only be agreed by the Hedging Banks.
|
(c)
|
An amendment or waiver which relates to the rights or obligations of the Facility Agent, the Security Agent, the Co-ordination and Structuring Bank, the Hedging Banks or the Mandated Lead Arranger in their respective capacities as such (and not just as a Lender) may not be effected without the consent of the Facility Agent, Security Agent, the Co-ordination and Structuring Bank, the Hedging Banks and the Mandated Lead Arranger (as the case may be).
|
(d)
|
Notwithstanding clauses 46.1 and 46.2(a) to (c) (inclusive), the Facility 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.
|
46.3
|
Releases
|
(a)
|
any Charged Property from the security constituted by any Security Document; or
|
(b)
|
any Obligor from any of its guarantee or other obligations under any Finance Document.
|
47
|
Counterparts
|
48
|
Governing law
|
49
|
Enforcement
|
49.1
|
Arbitration
|
(a)
|
Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (
SIAC
) in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Centre (
SIAC Rules
) for the time being in force, which rules are deemed to be incorporated by reference to this clause.
|
(b)
|
The tribunal shall consist of a panel of three arbitrators (the
Tribunal
) appointed in accordance with the SIAC Rules.
|
(c)
|
The language of the arbitration shall be English.
|
(d)
|
The Parties undertake to keep confidential the existence of, and all awards in, any arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain - save and to the extent that disclosure may be required of a Party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority.
|
(e)
|
By agreeing to arbitration in accordance with this clause, the Parties do not intend to deprive any competent court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment or other order in aid of the arbitration proceedings or the enforcement of any award. Any interim or provisional relief ordered by any competent court may subsequently be vacated, continued or modified by the arbitral tribunal on the application of either Party.
|
(f)
|
Unless otherwise provided herein, the Parties expressly agree to waive any provisions of applicable law that would have the effect of allowing an appeal from the decision of the arbitrators, so there shall be no appeal to any court or other authority from the decision of the arbitrators.
|
(g)
|
Except as provided in this clause, none of the Parties shall be entitled to commence or maintain any action in a court of law upon any matter in dispute arising from or in relation to this agreement except for the enforcement of an arbitral award granted pursuant to this clause.
|
(h)
|
Pending the submission to arbitration pursuant to this clause 49.1 (
Arbitration
) and thereafter until the arbitrator issues his/her decision, each party shall, except in the event of termination of this Agreement or failure by the other party in dispute to obey or comply with a specific order or decision of the arbitrator, continue to perform all of its obligations under this Agreement without prejudice to a final judgment in accordance with the said award (unless if the dispute involves the existence or scope of a certain obligation).
|
Name
:
|
PT GOLAR INDONESIA
|
Jurisdiction of incorporation
|
Indonesia
|
Registration number
(
or equivalent, if any
)
|
09.05.1.50.70479
|
English process agent
(
if not incorporated in England
)
|
Golar Management Limited
13th Floor, One America Square
17 Crosswall
London EC3N 2LB
Fax: +44 (0) 207 0637 901
Attn: The Chief Financial Officer
|
Singapore process agent
|
Golar LNG (Singapore) Pte. Ltd.
c/o 10 Hoe Chiang Road
#18-01, Keppel Towers
Singapore 089315
Fax: +65 6293 3515
Attn: The Director
|
Registered office (of Borrower)
|
Wisma 46 - Kota BNI, 48th Floor Jl. Jendral Sudirman 1, Jakarta 10220, Indonesia
|
Address for service of notices (of Borrower)
|
Wisma 46 - Kota BNI, 48th Floor Jl. Jendral Sudirman 1, Jakarta 10220, Indonesia
Fax No: +62 21 574 8888
Attention: President Director
|
Name of Sponsor
|
GOLAR LNG PARTNERS LP
|
Jurisdiction of incorporation
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
Marshall Islands LP but registered as an overseas partnership in Bermuda with No. 4120
|
English process agent
(
if not incorporated in England
)
|
Golar Management Limited
13th Floor, One America Square
17 Crosswall
London EC3N 2LB
Fax: +44 (0) 207 0637 901
Attn: The Chief Financial Officer
|
Registered office
|
Registered Bermuda address:
2nd Floor, S.E. Pearman Building 9 Par-La-Ville Place Road Hamilton, HM 11 Bermuda
Registered Marshall Islands address:
Trust Company Complex, Ajeltake Road, Ajeltake Island Majuro, Marshall Islands, MH 96960 |
Address for service of notices
|
Golar LNG Partners LP
c/o Golar Management Limited 13 th Floor, One America Square 17 Crosswall London EC3N 2LB United Kingdom
Fax No: +44 207 063 7901
Attention: Managing Director |
Name of Sponsor
|
PT PESONA SENTRA UTAMA
|
Jurisdiction of incorporation
|
Indonesia
|
Registration number
(
or equivalent, if any
)
|
09.03.1.46.46426
|
English process agent
(
if not incorporated in England
)
|
Golar Management Limited
13th Floor, One America Square
17 Crosswall
London EC3N 2LB
Fax: +44 (0) 207 0637 901
Attn: The Chief Financial Officer
|
Registered office
|
Globe Building, 6th Floor
Jalan Buncit Raya Kav.
31-33, Jakarta 12740, Indonesia
|
Address for service of notices
|
Globe Building, 6th Floor,
Jalan Buncit Raya Kav. 31-33, Jakarta 12740, Indonesia Fax: +62 21 7918 7097 Attention: President Director |
Name of Guarantor
|
GOLAR LNG PARTNERS LP
|
Jurisdiction of incorporation
|
Marshall Islands
|
Registration number
(
or equivalent, if any
)
|
Marshall Islands LP but registered as an overseas partnership in Bermuda with No. 41240
|
English process agent
(
if not incorporated in England
)
|
Golar Management Limited
13th Floor, One America Square
17 Crosswall
London EC3N 2LB
Fax: +44 (0) 207 0637 901
Attn: The Chief Financial Officer
|
Registered office
|
Registered Bermuda address:
2nd Floor, S.E. Pearman Building
9 Par-La-Ville Place Road Hamilton, HM 11 Bermuda Registered Marshall Islands address:
Trust Company Complex,
Ajeltake Road, Ajeltake Island Majuro, Marshall Islands, MH 96960 |
Address for service of notices
|
Golar LNG Partners LP
c/o Golar Management Limited 13 th Floor, One America Square 17 Crosswall London EC3N 2LB United Kingdom
Fax No: +44 207 063 7901
Attention: Managing Director |
Name
|
Facility Office, address, fax number and attention details for notices and account details for payments
|
Account details for payments
|
Historic Facility A Commitment
$
|
Facility A Commitment
$
|
Facility B Commitment
$
|
Total Commitment
$
|
PT Bank Sumitomo Mitsui Indonesia
|
Address: PT Bank Sumitomo Mitsui Indonesia Menara BTPN 35th -37th floor,
JL Dr. Ide Anak Agung Gde Agug Kav 5.5 -5.6 Jakarta 12950
Attention: Project Finance Department and Non-Japanese Marketing Department
Fax: +6221 8086 2501
Tel: +6221 8086 2500
Email: warni_warni@id.smbc.co.jp denti_irman@id.smbc.co.jp
gabriella_pantouw@id.smbc.co.jp herti_septhiany@id.smbc.co.jp
For Credit Related and Loan Administrative Matters
Sumitomo Mitsui Banking Corporation Mailing Address: 3 Temasek Avenue #06-01 Centennial Tower Singapore 039190 Contact Persons: Ms. Lo Kah Nian kah_nian_lo@sg.smbc.co.jp Mr. Pui Wing pui_wing_ho@sg.smbc.co.jp Ms. Jenny Yap Chong jenny_yap_chong@sg.smbc.co.jp Ms. Felicia Foo felicia_foo@sg.smbc.co.jp Tel: +65 6882 0396 / 0203 / 1283/ 0395 Fax: +65 6883 0335 |
Bank name:
SMBC New York
Swift Code :
SMBCUS33 ABA967
Swift address :
SUNIIDJA
Account name :
PT Bank Sumitomo Mitsui Indonesia
Account number :
553496
|
155,000,000
|
155,000,000
|
20,000,000
|
175,000,000
|
Name
|
Sumitomo Mitsui Banking Corporation Singapore Branch
|
Address
|
3 Temasek Avenue, #06-01 Centennial Tower, Singapore 039190
|
Fax Number
|
65-6883 0335
|
Attention
|
Investment Banking Department, Asia, Credit Planning - Agency
Ms Lee Sock Bee
|
Telephone number
|
65-6882 0245
|
Email address
|
Sock_Bee_Lee@sg.smbc.co.jp
|
Account Details
(USD)
|
Bank Name : JP Morgan Chase Bank, New York (Swift : CHASUS33)
Account Name : Sumitomo Mitsui Banking Corporation, Singapore Branch (Swift : SMBCSGSG)
Account No. : 001-1-746468
|
Name
|
Sumitomo Mitsui Banking Corporation Singapore Branch
|
Address
|
3 Temasek Avenue, #06-01 Centennial Tower, Singapore 039190
|
Fax Number
|
65-6883 0335
|
Attention
|
Investment Banking Department, Asia, Credit Planning - Agency
Ms Lee Sock Bee
|
Telephone number
|
65-6882 0245 / 65-6882 0395
|
Email address
|
Sock_Bee_Lee@sg.smbc.co.jp
|
Account Details
(USD)
|
Bank Name : JP Morgan Chase Bank, New York (Swift : CHASUS33)
Account Name : Sumitomo Mitsui Banking Corporation, Singapore Branch (Swift : SMBCSGSG)
Account No. : 001-1-746468
|
Builder:
|
Jurong Shipyard Pte. Ltd.
|
Builder’s registered office:
|
29 Tanjong Kling Road, Singapore 628054
|
Date and description of Conversion Contract:
|
the agreement dated 11 March 2011 made between the Builder and Golar Energy relating to, inter alia, the conversion of the Vessel
|
Date and description of O&M Contract:
|
the operation and maintenance agreement in respect of the Vessel and the Mooring dated 11 May 2012 as amended by a side letter dated 11 May 2012 (
Remuneration Side Letter
) each made between the Borrower and the O&M Contractor
|
Flag State
|
Indonesia
|
Charter description:
|
Contract dated 20 April 2011 in respect of the supply, delivery, charter and operation of the Vessel made between Golar Energy and the Charterer, as novated from Golar Energy to the Borrower by a novation agreement dated 12 April 2012 made between Golar Energy, the Borrower and the Charterer and as further amended or supplemented from time to time.
|
Charterer:
|
PT Nusantara Regas, a company incorporated in Indonesia and owned by PT Pertamina (Persero) and PT Perusahaan Gas Negara (Persero) Tbk
|
Classification:
|
DNV: +OI Floating Offshore LNG Regasification Teminal, REGAS, POSMOOR
|
Classification Society:
|
Dual classification:
DNV (Det Norske Veritas) and
BKI (PT Biro Klasifikasi Indonesia) (Persero)
|
1
|
Constitutional Documents and corporate authorities
|
(a)
|
a copy certified by a duly authorised officer and/or the company secretary of the relevant person to be a true, complete and up-to-date copy, of the Constitutional Documents of that person or equivalent documents in respect of that person;
|
(b)
|
a copy, certified by a duly authorised officer and/or the company secretary of the relevant person to be a true copy, and as being in full force and effect and not amended or rescinded, of resolutions of the board of directors, board of commissioners or governors (or of a committee of the board of directors or governors) of that person:
|
(i)
|
approving the entering into by the relevant person of the Transaction Documents to which that person is (or is to be) party;
|
(ii)
|
authorising the execution by that person of such of this Agreement and the other Transaction Documents to which such person is party; and
|
(iii)
|
authorising an individual or individuals to sign and deliver on behalf of that person such of this Agreement and the other Transaction Documents to which such person is party;
|
(c)
|
a copy of a resolution signed by all the holders of the issued shares in each Relevant if required by law or by the Constitutional Documents of a Relevant Obligor, Obligor approving the terms of, and the transactions contemplated by, the Transaction Documents to which such Relevant Obligor is a party;
|
(d)
|
a copy certified by a duly authorised officer and/or the company secretary of that person to be a true copy, and as being in full force and effect and not revoked or withdrawn, of any power of attorney issued by that person pursuant to the said resolutions; and
|
(e)
|
a certificate of incumbency including a list of those signatories of the applicable party have or will execute (and who are authorised) the Transaction Documents together with specimen signatures for each Indonesian Obligor as required by Lenders’ Indonesian counsel.
|
2
|
Consents
|
(a)
|
A certificate from each Relevant Obligor confirming that all Consents necessary for any matter or thing contemplated by the Security Documents and the Project Agreements (in each case to which the applicable Obligor is a party) and for the legality, validity, enforceability, priority, admissibility in evidence and effectiveness thereof, at the time the same are required, have been obtained or effected on an unconditional basis and remain in full force and effect (or, in the case of any necessary arrangements effecting any future Consents, registrations and filings, that arrangements which are satisfactory to the Facility Agent have been made for the effecting of the same within any applicable time limit);
|
(b)
|
a certificate from each Relevant Obligor confirming that any Consents which may be required for the due execution and performance by any Relevant Obligor of any Transaction Document to which it is party at the time the same are required have been obtained and are in full force and effect;
|
(c)
|
a certificate from the Borrower confirming that, on the date a Utilisation Request is given (i) all Consents required for the operation of the Vessel and the Mooring at the Permitted Location have been given, issued, made or acquired and (ii) all Consents necessary for any act or thing contemplated by the Mortgage, the Security Assignment and the Powers of Attorney, for the legality, rationality, enforceability, priority and admissibility in evidence and effectiveness thereof have been obtained or effected on an unconditional basis and remain in full force and effect or, as the case may be, that such Consents obtained prior to the Utilisation of a Loan are unamended and remain in full force and effect;
|
(d)
|
a certificate from the Borrower confirming that all Consents required for the chartering of the Vessel and the Mooring to the Charterer have been made or obtained.
|
3
|
Project Agreements
|
(a)
|
a copy of the Charter, the Charter Novation Agreement, the Charter Letters of Credit, the Charter Undertakings, that Pertamina LOU Transfer Agreement, the PGN LOU Transfer Agreement, the O&M Contract, the Mooring Documents, the Golar Management Norway Management Agreement and each other Charter Document duly executed by the parties thereto, dated and certified as a true and complete copy by an officer of the Borrower, in form and substance satisfactory to the Lenders;
|
(b)
|
a certificate from the Borrower confirming that it has obtained all necessary certificates in respect of the Vessel and the Mooring required pursuant to the Charter (and, if required by the Facility Agent (on the advice of the Technical Adviser), attaching copies of such certificates);
|
(c)
|
such evidence as the Facility Agent may require (upon the advice of its legal counsel) as to the due incorporation of the Charterer and each Charterer Shareholder, its power and authority to enter into and perform the Charter and relevant Charterer Undertakings and all other documents and instruments to give effect to the same, including but not limited to the Charter Novation Agreement, the Charter LOU POAs and the Letter of Quiet Enjoyment; and
|
(d)
|
a legal due diligence report of the applicable Project Agreements as approved by the Facility Agent (acting on the instructions of the Lenders).
|
4
|
Transaction Documents
|
(a)
|
An original counterpart of this Agreement and each Fee Letter duly executed and delivered by each Obligor which is party thereto as well as evidence that all notices, acknowledgements, authorisations, invoices and certificates required thereunder have been duly executed and delivered.
|
(b)
|
A certificate from the Borrower confirming that each of the Transaction Documents which have then been executed remain unamended and in full force and effect.
|
(c)
|
A copy, certified as a true copy by a duly authorised officer and/or the company secretary of the Borrower of each of the Transaction Documents (other than this Agreement and the other Finance Documents) as well as evidence that all notices, acknowledgements, authorisations, invoices and certificates required thereunder have been duly executed and delivered together with a certified copy thereof.
|
(d)
|
Agreed forms of each of the other Finance Documents, executed copies of which are to be provided under Parts 2 and 3 of this Schedule 3.
|
5
|
Legal opinions
|
(a)
|
ABNR, Indonesian counsel to the Lenders;
|
(b)
|
Norton Rose (Asia) LLP, English counsel to the Lenders;
|
(c)
|
Appleby Global, Bermudan counsel to the Lenders;
|
(d)
|
Wiersholm, Norwegian counsel to the Lenders;
|
(e)
|
Seward & Kissel, Marshall Islands counsel to the Lenders; and
|
(f)
|
Norton Rose (Asia) LLP, Singapore counsel to the Lenders,
|
6
|
Accounts and financial/technical information
|
(a)
|
The Original Financial Statements, together with copies of the most recent annual audited accounts of each of the Borrower, the Pre-Completion Guarantor Group and the Final Repayment Guarantor Group and a copy of the most recently published annual audited financial statements of the Charterer and each Charterer Shareholder (such annual audited accounts to be provided only if available to the Borrower).
|
(b)
|
Evidence that each of the Project Accounts have been opened and that all necessary bank mandates and signature forms in form and content acceptable to the Facility Agent have been delivered to the Account Bank.
|
(c)
|
A certificate from a duly authorised officer and/or the company secretary of the Borrower confirming details of the total Project Cost incurred and in respect of which reimbursement is sought through the Utilisation of the Loan.
|
(d)
|
Receipt by the Facility Agent of the Due Diligence Report.
|
(e)
|
Receipt by the Facility Agent of Tax projections for the Project prepared by the Borrower.
|
(f)
|
The latest Project Budget Statement in form and substance acceptable to the Facility Agent.
|
7
|
Process Agents
|
8
|
Transaction Documents conditions precedent
|
9
|
No defaults
|
(a)
|
A certificate from the Borrower confirming that no breach or default has occurred and is continuing under any of the Project Agreements, save for any breach or default previously notified to and accepted by the Facility Agent in writing.
|
(b)
|
A certificate from each Obligor confirming that no Default (applicable to it) has occurred and is continuing or would result from the Utilisation of a Loan, save for any Default(s) previously notified to and accepted by the Facility Agent in writing.
|
10
|
“Know Your Customer Requirements”
|
11
|
Fees
|
(a)
|
Evidence acceptable to the Facility Agent that all fees and expenses due to the Finance Parties (including the fees of the Insurance Advisor and the Facility Agent’s legal counsel) and any applicable commitment commission payable on the first Utilisation Date have been, or will, on the first Utilisation Date, be paid in full.
|
(b)
|
Confirmation from the Facility Agent that all fees and expenses due or reimbursable to the Co-ordination and Structuring Bank, the Facility Agent and the Security Agent and any applicable commitment commission then due have been, or will, on the first Utilisation Date, be paid in full.
|
1
|
No Defaults
|
2
|
Constitutional Documents and corporate authorisations
|
3
|
Finance Documents
|
(a)
|
An original of the following Original Security Documents:
|
(i)
|
the Security Assignment;
|
(ii)
|
the Insurance Assignment;
|
(iii)
|
the Project Agreements Assignment;
|
(iv)
|
the Golar Management Norway Acknowledgement;
|
(v)
|
the O&M Contractor Acknowledgement;
|
(vi)
|
the O&M Contractor Assignment;
|
(vii)
|
the Account Security;
|
(viii)
|
the Mooring Security;
|
(ix)
|
any Reinsurance Security;
|
(x)
|
the Letter of Quiet Enjoyment;
|
(xi)
|
the Manager’s Undertaking;
|
(xii)
|
the Powers of Attorney
|
(xiii)
|
the Hedging Security;
|
(xiv)
|
the Pre-Completion Guarantee;
|
(xv)
|
the Fiduciary Assignments; and
|
(xvi)
|
the Golar Energy Assignment.
|
(b)
|
An original of the Mortgage duly executed by each party thereto and evidence that arrangements satisfactory to the Facility Agent have been made for effecting the permanent filing or registration of the Mortgage in any applicable jurisdiction, and within any applicable time limit.
|
(c)
|
The Powers of Attorney (attested, notarised, legalised and delivered to the Lenders’ Indonesian legal counsel for the purpose of registration, as necessary) duly executed by the Borrower in favour of the Security Agent.
|
(d)
|
The original Shareholders’ Security duly executed by each of the parties thereto, together with:
|
(i)
|
the registration of the pledge of shares into the shareholder register of the Borrower and delivery of the original shares certificates to the Security Agent representing the shares pledge pursuant to the Shareholders’ Security;
|
(ii)
|
confirmation from the Shareholders that, other than by virtue of the Shareholders’ Security, they have not created any Security Interest over the Shares (as such term is defined in the Shareholders’ Security); and
|
(iii)
|
documentary evidence that the shares pledge and assignment of dividends in favour of GSC have been discharged and released.
|
(e)
|
If necessary, a Subordination Deed in respect of any Indebtedness owed by the Borrower to any member of the Pre-Completion Guarantor Group (including Golar Singapore and Golar Khannur).
|
(f)
|
Evidence that the nominal stamp tax in the amount of Rp6,000 on the Finance Documents to which the Borrower or PSU is a party has been paid.
|
4
|
Notice of Readiness
|
5
|
Transaction Documents conditions precedent
|
(a)
|
A certificate from the Borrower confirming that each of the Transaction Documents that have been executed remains unamended and in full force and effect unless such amendments are disclosed to the Facility Agent (and are permitted pursuant to this Agreement) in which case the Borrower will provide copies, certified as true and complete copies by an authorised officer of the Borrower, of any amendments made to the Transaction Documents in accordance with the provisions of this Agreement.
|
(b)
|
A certificate from the Borrower confirming that no event of default or potential event of default has occurred and is continuing under any of the Project Agreements.
|
6
|
Representation and Warranties
|
7
|
Project Information
|
(a)
|
Evidence satisfactory to the Facility Agent that the Borrower has instructed the Charterer to pay all Earnings to the Earnings Account.
|
(b)
|
A certificate from the Borrower confirming the location of the Vessel.
|
(c)
|
A certificate from the Borrower confirming that neither the Charterer or the O&M Contractor or Golar Management Norway has given notice of the occurrence of any event or circumstance giving rise to a right on the part of the Charterer or the O&M Contractor or Golar Management Norway to terminate the Charter or the O&M Contract or the Golar Management Norway Management Agreement respectively and that no Force Majeure Event has occurred and is continuing in respect of the Vessel or the Mooring under either the Charter or the O&M Contract or the Golar Management Norway Management Agreement.
|
(d)
|
A certificate from the Borrower confirming that the Vessel and the Mooring is free of any other charter commitment (other than the Charter) which would require approval under the Finance Documents.
|
(e)
|
A certificate from the Borrower confirming that the Charterer has not exercised the Charterer’s Purchase Option.
|
(f)
|
A certificate from the Borrower confirming that the conditions precedent to the obligations of the Charterer and the Borrower under the Charter, the obligations of the Borrower and the O&M Contractor under the O&M Contract and the obligations of the O&M Contractor and Golar Management Norway under the Golar Management Norway Management Agreement in respect of the Vessel and the Mooring (other than the conditions precedent that the Borrower has notified to the Facility Agent, and the Facility Agent has consented to, that have not been fulfilled or waived) have been fulfilled or waived in accordance with the terms thereof.
|
8
|
Financial Model and debt sizing
|
(a)
|
An updated copy of the Financial Model in form and substance acceptable to the Lenders, evidencing, inter alia:
|
(i)
|
the amount of the proposed Utilisation;
|
(ii)
|
the Project Cost; and
|
(iii)
|
that the Debt Service Coverage Ratio for the period ending on the Final Maturity Date is at least 1.50:1 for the period up to the 22nd Repayment Date and 1.40:1 for each Relevant Period thereafter (assuming the full amount of Facility B has been drawn down (and is not repaid) on or before the Last Availability Date relating to such Facility),
|
(b)
|
The forecasted amount of the Balloon (as determined by the Facility Agent and calculated by reference to the Financial Model) is not greater than 30% of the Facility Limit after applying the Repayment Schedule (assuming the full amount of Facility B has been drawn down (and is not repaid) on or before the Last Availability Date relating to such Facility and ignoring any Cash Sweep Repayments).
|
(c)
|
The forecasted amount of the Balloon (as determined by the Facility Agent and calculated by reference to the Financial Model) is not greater than 20% of the Facility Limit after applying the Repayment Schedule (assuming the full amount of Facility B has been drawn down (and is not repaid) on or before the Last Availability Date relating to such Facility and after applying any Cash Sweep Repayments).
|
9
|
Vessel conditions
|
(a)
|
A transcript of register from the Flag State evidencing the continued registration of Vessel in the name of the Borrower free from registered Security Interests other than the Mortgage and that the Mortgage has been
executed in the presence of officials of the Directorate General of Sea Communication of the Department of Communication of the Republic of Indonesia and submitted for registration against the Vessel as a first priority Indonesian ship mortgage.
|
(b)
|
An authenticated copy of the Grosse Akte Pendaftaran Kapal.
|
(c)
|
Documentary evidence that the Borrower possesses a SUIPAL or other relevant license required under Indonesian laws/regulations for the purpose of owning the Vessel;
|
(d)
|
A certificate from the Borrower confirming that the Vessel and the Mooring is free and clear of any liens, charges, debts, claims or other encumbrances arising in favour of any of the parties to the Conversion Contract Documents or the Mooring Documents (other than the Borrower) or such parties’ sub-contractors and employees (other than Permitted Maritime Liens).
|
(e)
|
Evidence that the Vessel is classed with the relevant Classification free of all overdue conditions and recommendations of the relevant Classification Society which have not expired (in the form of a copy of the Classification Certificate for the Vessel, together with a copy of a Confirmation of Class Certificate for the Vessel, each issued by the Classification Society upon (or just prior to) the Utilisation Date for the First Advance).
|
(f)
|
In respect of the Vessel and the Mooring, copies of any certificates issued under any applicable code required to be observed by the Vessel and/or the Mooring or in relation to their operation under any applicable law.
|
10
|
Construction matters
|
(a)
|
A certificate from the Sponsors confirming that:
|
(i)
|
neither Sponsor nor the Builder have, nor will have from the Utilisation Date for the First Advance, any lien or other right to detain the Vessel or the Mooring; and
|
(ii)
|
all costs, fees and expenses payable by the Borrower in connection with the Conversion Contract Documents and the purchase of the Vessel’s equipment and the Mooring Documents and the purchase and installation of the Mooring have been paid in full on terms acceptable to the Lenders (and that there are no monies outstanding in respect of the Conversion Contract Documents or the Mooring Documents).
|
11
|
No disputes
|
(a)
|
A certificate from each Sponsor confirming that there are no disputes between any Obligor and the parties to the Conversion Contract Documents and/or the Charter Documents which is reasonably likely to have a Material Adverse Effect.
|
(b)
|
A certificate from a duly authorised officer(s) and/or the company secretary of the Borrower (together with such other evidence as the Facility Agent may require at the relevant time) confirming that there are no material disputes, litigation, arbitration or similar proceedings taking place, pending or, to the knowledge of the officers of the Borrower, threatened against any Obligor by the Charterer, the Builder, Golar Management Norway or the O&M Contractor or any company contracted in connection with the supply and/or installation of the Mooring and the Vessel’s equipment and that all payments due to the Charterer, the Builder, Golar Management Norway and the O&M Contractor and any such other company have been or will be made.
|
12
|
Insurance/Reinsurance
|
(a)
|
Receipt by the Security Agent of the pro-forma hull and machinery, war risks policies, and mortgagee’s interest insurance, to be duly issued with endorsement thereon of the notices of assignment and Loss Payable Clauses and that all premia and calls in respect of Insurances/Reinsurances which have fallen due have been paid and that none of the Security Agent or other Finance Parties have any liability for premia and calls.
|
(b)
|
Evidence satisfactory to the Facility Agent that the insurance and reinsurance obligations of the Obligors under the Finance Documents and under the Project Agreements have been complied with and that the Vessel and the Mooring is insured in accordance with the terms of the Finance Documents and the Project Agreements.
|
(c)
|
Receipt by the Facility Agent of agreed form letters of undertaking from the insurers/reinsurers and the mutual association or club with which the protection and liability insurances are placed in respect of the Vessel or evidence satisfactory to the Facility Agent that these documents will be provided promptly after the Utilisation of the First Advance upon the insurers receiving the relevant notices.
|
(d)
|
Receipt by the Facility Agent of certified true copies of the insurance and reinsurance policies (containing the information referred to in clause 27.12 (
Insurance documents
)) (together with any other notices and/or documents referred to in clause 27.12
(Insurance documents
)) in respect of the insurance and reinsurance cover for the Vessel.
|
(e)
|
A final opinion in form and content satisfactory to the Lenders from the Insurance Advisor, as to the adequacy of the Insurances and Reinsurances in respect of the Vessel.
|
(f)
|
A list of the insurers and reinsurers of the Vessel and the Mooring.
|
13
|
Accounts and financial information
|
(a)
|
Evidence that each of the Project Accounts have been opened and that all necessary bank mandates and signature forms in form and content acceptable to the Facility Agent have been delivered to the Account Bank.
|
(b)
|
To the extent such documents have not been provided under Schedule 3, Part 1 of this Agreement, copies of the most recent Annual Financial Statements and Semi-annual Financial Statements (save where the corresponding Annual Financial Statement has superseded this) (as each such expression is defined in clause 19 (
Information undertakings
)), of the Borrower, the Pre-Completion Guarantor Group and the Final Repayment Guarantor Group and a copy of the most recently published annual audited financial statements of the Charterer and each Charterer Shareholder (such annual financial statements to be provided only if available to the Borrower).
|
14
|
Legal opinions
|
15
|
Sponsor Funding
|
(a)
|
Sponsor Funding is in place and in particular, that the ratio of the aggregate amount drawn under the Facility and any Available Commitment relating to Facility B to Sponsor Funding does not exceed 70:30; and
|
(b)
|
any shareholder and/or intra-group loans (other than the Subordinated Loans provided by Golar Singapore and Golar Khannur) made available to the Borrower prior to the Utilisation Date of the First Advance will be fully discharged upon the Utilisation Date for the First Advance.
|
16
|
Process Agents
|
17
|
Further conditions
|
(a)
|
Such further conditions/opinions or evidence as may be reasonably required by the Facility Agent and notified in writing to the Borrower in advance of being required.
|
(b)
|
Evidence that the conditions precedent set out in Schedule 3 part 1 remain satisfied.
|
18
|
Sponsor Loan Agreement
|
19
|
GSC and Golar Khannur
|
(a)
|
A certified copy of the GSC Loan Agreement together with a duly executed original of a Subordination Deed in respect of the GSC Loan Agreement.
|
(b)
|
A certified copy of the Seller’s Credit together with a duly executed original of a Subordination Deed in respect of the Seller’s Credit.
|
(c)
|
Such evidence as the Facility Agent may require (upon the advice of its legal counsel) as to the due incorporation of each of Golar Khannur and GSC, its power and authority to enter into and perform the Subordination Deed to which it is a party and all other documents and instruments to give effect to the same.
|
20
|
Environment and social
|
(a)
|
A copy of the Environmental Management Plan and any other documentation and/or evidence required to satisfy the Lenders’ ‘environmental and social’ requirements, with each Lender to confirm whether this has been satisfied.
|
(b)
|
A copy of the “Environmental Impact Assessment” in a form acceptable to the Facility Agent (if the Borrower and/or the Sponsors are able to obtain this, having used their best efforts to do so).
|
1
|
Constitutional Documents and corporate authorities
|
2
|
Consents
|
3
|
Transaction Documents
|
4
|
Legal Opinions
|
(a)
|
To the extent not provided under part 2 of this Schedule 3, receipt by the Facility Agent of the copies of the executed legal opinions specified in paragraph 5 of part 1 of this Schedule 3, each in form and content satisfactory to the Lenders or evidence that such opinions will be issued promptly following Utilisation.
|
(b)
|
Evidence satisfactory to the Lenders that the terms and conditions of the legal opinions received under paragraph14 of part 2 of this Schedule 3 need not be altered or modified in anyway or, if required by the Facility Agent, have been modified and updated as the case may be.
|
5
|
Insurances/Reinsurances
|
6
|
Vessel conditions and construction matters
|
(a)
|
Vessel conditions
|
(i)
|
A transcript of register from the Flag State evidencing the continued registration of Vessel in the name of the Borrower free from registered Security Interests other than the Mortgage and that the Mortgage has been
executed in the presence of officials of the Directorate General of Sea Communication of the Department of Communication of the Republic of Indonesia and submitted for registration against the Vessel as a first priority Indonesian ship mortgage.
|
(ii)
|
If the Utilisation Request for the Final Advance is not served by the Borrower within twenty (20) Business Days of the Utilisation Date for the First Advance, evidence that the Vessel is classed with the relevant Classification free of all conditions and recommendations of the relevant Classification Society which have not expired (in the form of a copy of the Classification Certificate for the Vessel, together with a copy of a Confirmation of Class Certificate for the Vessel, each issued by the Classification Society upon (or just prior to) the Utilisation date of the Final Advance).
|
(b)
|
In respect of the Vessel and the Mooring, copies of (if so requested by the Facility Agent) any certificates issued under any applicable code required to be observed by the Vessel and the Mooring or in relation to its operation under any applicable law, to the extent that such certificates have not been provided to the Facility Agent under Parts 1 or 2 of this Schedule 3 or have been issued since the Utilisation Date for the First Advance.
|
(c)
|
If the Utilisation Request for the Final Advance is not served by the Borrower within ten (10) Business Days of the Utilisation Date for the First Advance, a certificate from the Borrower confirming that the Vessel and the Mooring is free of any other charter commitment (other than the Charter) which would require approval under the Finance Documents.
|
7
|
Project Information
|
(a)
|
A certificate from the Borrower confirming that all Consents obtained prior to the Utilisation of the Final Advance are unamended and remain in full force and effect.
|
(b)
|
A certificate from the Borrower confirming that all Consents required for the chartering of the Vessel and the Mooring to the Charterer obtained prior to the Utilisation of the Final Advance are unamended and remain in full force and effect.
|
(c)
|
A certificate from the Borrower as to the proposed location of the Vessel upon Final Acceptance.
|
(d)
|
A certificate from an officer of the Sponsors confirmed by the Technical Adviser confirming that the aggregate of the Loans and any Available Commitment relating to Facility B does not exceed seventy per cent (70)% of the total Project Cost (i) at Final Acceptance and (ii) immediately after the Utilisation of such Final Advance.
|
(e)
|
A certificate from the Borrower confirming that the Charterer has not exercised the Charterer’s Purchase Option.
|
(f)
|
A certificate from the Borrower confirming that neither the Charterer or the O&M Contractor or Golar Management Norway has given notice of the occurrence of any event or circumstance giving rise to a right on the part of the Charterer or the O&M Contractor or Golar Management Norway to terminate the Charter or the O&M Contract or the Golar Management Norway Management Agreement respectively and that no Force Majeure Event has occurred and is continuing in respect of the Vessel or the Mooring under either the Charter or the O&M Contract or the Golar Management Norway Management Agreement.
|
(g)
|
Evidence satisfactory to the Facility Agent and the Technical Adviser that Final Acceptance has been completed in accordance with the requirements of the Charter and receipt by the Facility Agent of the Final Advance Report.
|
(h)
|
Evidence satisfactory to the Facility Agent and the Technical Adviser that the Borrower has received three (3) consecutive months of Total Charter Rate without material deductions.
|
8
|
Accounts and Financial Information
|
9
|
Fees and expenses
|
(a)
|
evidence acceptable to the Facility Agent that all fees and expenses due to the Finance Parties (including the fees of the Insurance Consultant and the Facility Agent’s legal advisers) and any applicable commitment commission payable on the Utilisation Date for the Final Advance have been, or will be, paid in full; and
|
(b)
|
PT Bank Sumitomo Mitsui Indonesia has confirmed to the Facility Agent that it has received from the Borrower duly signed remittance instructions in the agreed form to enable it to effect the transfer of the applicable Debt Service Reserve to the Debt Service Reserve Account immediately following Utilisation.
|
10
|
Representation and Warranties
|
11
|
No Defaults
|
12
|
Process Agents
|
13
|
Sponsor Funding
|
14
|
Sponsor Loan Agreement
|
15
|
Conditions precedent
|
16
|
Further conditions
|
1
|
Registrations
|
(a)
|
Documentary evidence to be provided within thirty (30) days after the Utilisation Date of the First Advance that the Mortgage has been duly registered against the Vessel as a valid first priority Indonesian ship mortgage with the Directorate General of Sea Communication of the Department of Communication of the Republic of Indonesia in accordance with the laws of Indonesia as evidenced by the issuance of a mortgage certificate.
|
(b)
|
Documentary evidence to be provided within thirty (30) days after the Utilisation Date of the First Advance that the Fiduciary Assignments have been duly registered with the Fiduciary Registration Registry (as evidenced by the issuance of fiducia certificate) and shareholder register of the Borrower as relevant.
|
(c)
|
Documentary evidence to be provided within the earlier of (i) fourteen (14) Business Days after the Utilisation Date of the First Advance (ii) the applicable time frame required by law that this Agreement has been reported and filed with the Bank of Indonesia the Ministry of Finance and the Team for the Co‑ordination of the Management of Offshore Commercial Loans.
|
(d)
|
Documentary evidence to be provided within fourteen (14) Business Days after the Utilisation Date of the First Advance that the notices required under the Fiduciary Assignments have been sent to relevant counterparties.
|
(e)
|
Documentary evidence to be provided within thirty (30) Business Days after the Utilisation Date of the First Advance that the acknowledgments required under the Fiduciary Assignments, have been obtained from relevant counterparties.
|
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 [[First]/[Final] Advance][a Facility B Loan] on the following terms:
|
Facility:
|
[Facility A][Facility B]
|
Proposed Utilisation Date:
|
[•] (or, if that is not a Business Day, the next Business Day)
|
Loan amount:
|
$[•]
|
3
|
We confirm that each condition specified in clause 4.6 (
Further conditions precedent
) is satisfied on the date of this Utilisation Request.
|
4
|
The purpose of this Loan is [
specify purpose complying with clause 3 of the Agreement
]
and its proceeds should be credited to the following account(s) in the following amounts:
|
(a)
|
an amount of $[
·
] (in respect of the payment of Project Costs) shall be paid to [
·
] [
specify relevant account of the Borrower
]; [and]
|
(b)
|
an amount of $[
·
] (in respect of fees, expenses and commitment commission) shall be paid to [
·
] [
specify relevant account of the Facility Agent
]; [and]
|
(c)
|
[an amount of $[
·
] (in respect of the Debt Service Reserve) shall be paid to the Debt Service Reserve Account.]
|
5
|
We request that the first Interest Period for the Loan be [
·
] months.
|
6
|
This Utilisation Request is irrevocable.
|
1
|
The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
|
2
|
On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the "
Additional Cost Rate
") for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders' Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the relevant Loan) and will be expressed as a percentage rate per annum.
|
3
|
The Additional Cost Rate for any Lender lending from a Facility Office in a Participating Member State will be the percentage notified by that Lender to the Agent. This percentage will be certified by that Lender in its notice to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's participation in all Loans made from that Facility Office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Facility Office.
|
4
|
The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom will be calculated by the Agent as follows:
|
(a)
|
in relation to a sterling Loan:
|
(b)
|
in relation to a Loan in any currency other than sterling:
|
A
|
is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
|
B
|
is the percentage rate of interest (excluding the Margin and the Mandatory Cost) and, if the Loan is an Unpaid Sum, the additional rate of interest specified in clause 8.3(a) (
Default interest
) payable for the relevant Interest Period on the Loan.
|
C
|
is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of England.
|
D
|
is the percentage rate per annum payable by the Bank of England to the Agent on interest bearing Special Deposits.
|
E
|
is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Agent as being the average of the most recent rates of charge supplied by the Reference Banks to the Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000.
|
5
|
For the purposes of this Schedule:
|
(a)
|
Eligible Liabilities
and
Special Deposits
have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England;
|
(b)
|
Fees Rules
means the rules on periodic fees contained in the Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits;
|
(c)
|
Fee Tariffs
means the fee tariffs specified in the Fees Rules under Column 1 of the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate); and
|
(d)
|
Tariff Base
has the meaning given to it in, and will be calculated in accordance with, the Fees Rules.
|
6
|
In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places.
|
7
|
If requested by the Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
|
8
|
Each Lender shall supply any information required by the Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the following information on or prior to the date on which it becomes a Lender:
|
(a)
|
the jurisdiction of its Facility Office; and
|
(b)
|
any other information that the Agent may reasonably require for such purpose.
|
9
|
The percentages of each Lender for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the Agent to the contrary, each Lender's obligations in relation to cash ratio deposits and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a Facility Office in the same jurisdiction as its Facility Office.
|
10
|
The Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lender and shall be entitled to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
|
11
|
The Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
|
12
|
Any determination by the Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding on all Parties.
|
13
|
The Agent may from time to time, after consultation with the Borrowers and the Lenders, determine and notify to all Parties any amendments which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all Parties.
|
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 33.5 (
Procedure for transfer
):
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender assigning to the New Lender all or part of the Existing Lender's Commitment rights and assuming the Existing Lender's obligations referred to in the Schedule in accordance with clause 33.5 (
Procedure for transfer
) and the Existing Lender assigns and agrees to assign such rights to the New Lender with effect from the Transfer Date.
|
(b)
|
The proposed Transfer Date is [●].
|
(c)
|
The Facility Office and address, email address, fax number and attention details for notices of the New Lender for the purposes of clause 42.2 (
Addresses
) are set out in the Schedule.
|
3
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in clause 33.4(c).
|
4
|
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.
|
1
|
I/We 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/We confirm that:
|
3
|
[I/We 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.
]
|
1
|
We refer to the Agreement. This is a Market Disruption Notification. Terms defined in the Agreement have the same meaning when used in this Market Disruption Notification unless given a different meaning in this Market Disruption Notification.
|
2
|
We hereby notify you that, in relation to our participation in the Loan referred to below and the Interest Period referred to below, the cost to us of obtaining a matching deposit (or matching deposits) in the Interbank Market would be in excess of LIBOR:
|
3
|
We request that, as soon as practicable, you inform the other Lenders that you have received a Market Disruption Notification in respect of the Loan and Interest Period referred to in paragraph 2 above, without stating our name or the amount or percentage of our participation. However, we acknowledge that you shall be under no liability for any act or omission in this respect.
|
1.
|
Receipt by the Facility Agent of the Pre-Completion Guarantee Release Report.
|
2.
|
Evidence satisfactory to the Facility Agent that:
|
(b)
|
no ongoing material dispute is existing between any Obligor and the Charterer or any other person in connection with the Charter, the O&M Contract, the Golar Management Norway Management Contract and/or the Project and no amount payable by the Borrower or any other Obligor in relation to the Project is due or outstanding.
|
3.
|
An updated copy of the Financial Model, evidencing that the Debt Service Coverage Ratio for the period ending on the Final Maturity Date is at least 1.50:1 for the period starting on the date of this Agreement up to the 22nd Repayment Date and 1.40:1 for each Relevant Period thereafter (assuming the full amount of Facility B has been drawn down (and is not repaid) on or before the Last Availability Date relating to such Facility).
|
4.
|
The forecasted amount of the Balloon (as determined by the Facility Agent by reference to the Financial Model) is not greater than 30% of the Facility Limit after applying the Repayment Schedule (assuming the full amount of Facility B has been drawn down (and is not repaid) on or before the Last Availability Date relating to such Facility and ignoring any Cash Sweep Repayments).
|
5.
|
The forecasted amount of the Balloon (as determined by the Facility Agent and calculated by reference to the Financial Model) is not greater than 20% of the Facility Limit after applying the Repayment Schedule (assuming the full amount of Facility B has been drawn down (and is not repaid) on or before the Last Availability Date relating to such Facility and after applying any Cash Sweep Repayments).
|
6.
|
Evidence that the Debt Service Reserve Account has been funded in accordance with clause 28.7 (
Debt Service Reserve Account
) of this Agreement.
|
7.
|
A copy of the duly executed Hedging Master Agreements together with evidence of the entry into the Hedging Transactions by the Borrower in accordance with clause 30.1 (
Hedging
).
|
8.
|
Evidence that all amounts payable by the Borrower on the First Repayment Date have been paid in full pursuant to and in accordance with the Facility Agreement.
|
9.
|
Documentary evidence that the Mortgage has been duly registered against the Vessel as a valid first priority Indonesian ship mortgage with the Directorate General of Sea Communication of the Department of Communication of the Republic of Indonesia in accordance with the laws of Indonesia as evidenced by the issuance of a mortgage certificate.
|
10.
|
An original Final Repayment Guarantee duly executed by the Final Repayment Guarantor together with:
|
(a)
|
all documents set out in paragraph 1, Part 1 of Schedule 3 of the Facility Agreement in respect of the Final Repayment Guarantor; and
|
(b)
|
an English and Marshall Islands legal opinion substantially in the form approved by the Facility Agent prior to signing the Facility Agreement in relation to the Final Repayment Guarantee and the Final Repayment Guarantor.
|
Repayment Date
|
Principal Repayment
|
|
First
|
$3,575,000.00
|
|
Second
|
$3,575,000.00
|
|
Third
|
$3,575,000.00
|
|
Fourth
|
$3,575,000.00
|
|
Fifth
|
$3,575,000.00
|
|
Sixth
|
$3,575,000.00
|
|
Seventh
|
$3,575,000.00
|
|
Eighth
|
$3,575,000.00
|
|
Ninth
|
$3,575,000.00
|
|
Tenth
|
$3,575,000.00
|
|
Eleventh
|
$3,575,000.00
|
|
Twelfth
|
$3,575,000.00
|
|
Thirteenth
|
$3,575,000.00
|
|
Fourteenth
|
$3,575,000.00
|
|
Fifteenth
|
$3,575,000.00
|
|
Sixteenth
|
$3,575,000.00
|
|
Seventeenth
|
$3,575,000.00
|
|
Eighteenth
|
$3,575,000.00
|
|
Nineteenth
|
$3,575,000.00
|
|
Twentieth
|
$3,575,000.00
|
|
Twenty First
|
$3,575,000.00
|
|
Following date of Supplemental Agreement:
|
||
Twenty Second
|
$3,687,500
|
|
Twenty Third
|
$3,687,500
|
|
Twenty Fourth
|
$3,687,500
|
|
Twenty Fifth
|
$3,687,500
|
|
Twenty Sixth
|
$3,687,500
|
|
Twenty Seventh
|
$3,687,500
|
|
Twenty Eighth
|
$3,687,500
|
|
Twenty Ninth
|
$3,687,500
|
|
Thirtieth
|
$3,687,500
|
|
Thirty First
|
$3,687,500
|
|
Thirty Second
|
$3,687,500
|
|
Thirty Third
|
$3,687,500
|
|
Thirty Fourth
|
$3,687,500
|
|
Thirty Fifth
|
$3,687,500
|
|
Thirty Sixth
|
$3,687,500
|
|
Thirty Seventh
|
$3,687,500
|
|
Thirty Eighth
|
$3,666,666
|
|
Thirty Ninth
|
$3,666,666
|
|
Fortieth
|
$3,666,668
|
|
Balloon
|
$29,925,000
|
|
TOTAL
|
|
$175,000,000.00
|
Document
|
Party
|
Governing Law
|
Facility Agreement
|
Borrower
Sponsors Guarantors |
English Law
|
Hedging Contracts
|
Borrower
Hedging Banks
|
English Law
|
Security Assignment of:
(a) Earnings (b) Insurances (c) Requisition Compensation |
Borrower
|
English Law
|
Project Agreements Assignment
|
Borrower
|
English Law
|
Insurance Assignment
|
PSU
Golar LNG Limited
Golar Management Limited
Golar Management Norway
Golar Singapore
Golar LNG Limited
|
English Law
|
Account Security over
(a) Revenue Account (b) Operating Account (c) Debt Service Reserve Account |
Borrower
|
Singapore Law
|
Power of Attorney
|
Borrower
|
English Law
|
|
Document
|
Party
|
Governing Law
|
|
Mortgage (
Hypothec
)
|
Borrower
|
Indonesian Law
|
|
Power of Attorney relating to
Hypothec
|
Borrower
|
Indonesian Law
|
|
Mooring Security
|
Borrower
|
Indonesian Law
|
|
Shareholders’ Security over PTGI shares (PSU Shares)
|
PSU
|
Indonesian Law
|
|
Shareholders’ Security over PTGI shares (Golar Singapore Shares)
|
Golar Singapore
|
Indonesian Law
|
|
Power of Attorney to Sell Shares
|
PSU
|
Indonesian Law
|
|
Power of Attorney to Vote Shares
|
PSU
|
Indonesian Law
|
|
Fiduciary Assignment of Receivables under Charter
|
Borrower
|
Indonesian Law
|
|
Fiduciary Assignment of Insurance Proceeds
|
Borrower
|
Indonesian Law
|
|
Reinsurance Security
|
Dayin Mitra
|
Indonesian law
|
|
Letter of Quiet Enjoyment
|
Borrower/PTNR
|
Indonesian law
|
|
Pertamina LOU Transfer Agreement
|
Golar Energy / Borrower
|
Indonesian law
|
|
PGN LOU Transfer Agreement
|
Golar Energy / Borrower
|
Indonesian law
|
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)
|
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/Brian Tienzo
|
|
|
|
Brian Tienzo
|
|
|
|
Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer
|
|
|
|
|
a)
|
Registration Statement (Form F-3 No. 333-219065) of Golar LNG Partners LP and in the related Prospectus,
|
b)
|
Registration Statement (Form F-3 No. 333-214241) of Golar LNG Partners LP and in the related Prospectus, and
|
c)
|
Registration Statement (Form S-8 No. 333-212485) pertaining to Long-Term Incentive plan of Golar LNG Partners LP,
|