Dated 2005
------------------------------
GOLAR GAS HOLDING COMPANY, INC. (1)
(Borrower)
BANKS AND FINANCIAL INSTITUTIONS (2)
referred to herein
(Lenders)
NORDEA BANK NORGE ASA
DnB NOR BANK ASA
CITIGROUP GLOBAL MARKET LIMITED
FORTIS BANK (NEDERLAND) N.V. (3)
(Lead Arrangers)
NORDEA BANK NORGE ASA (4)
(Facility Agent and Security Agent)
NORDEA BANK NORGE ASA
CITIGROUP GLOBAL MARKET LIMITED
DnB NOR BANK ASA (5)
(Book Runners)
and
NORDEA BANK FINLAND PLC (6)
(Documentation Agent)
------------------------------
FACILITY AGREEMENT
for a $300,000,000 Senior Secured
Term Loan
------------------------------
▇▇▇▇▇▇ ▇▇▇▇
Contents
Clause Page
1 Purpose and definitions.................................................1
2 The Commitments and the Loan...........................................20
3 Interest...............................................................21
4 Repayment and prepayment...............................................23
5 Fees commission and expenses...........................................26
6 Payments and taxes; accounts and calculations..........................27
7 Representations and warranties.........................................30
8 Undertakings...........................................................35
9 Conditions.............................................................53
10 Events of Default......................................................53
11 Indemnities............................................................57
12 Unlawfulness and increased costs.......................................58
13 Set-off, pro rata payments.............................................60
14 Accounts...............................................................61
15 Transfer and lending office............................................63
16 Facility Agent, Security Agent and Reference Banks.....................66
17 Notices and other matters..............................................66
18 Governing law and jurisdiction.........................................68
Schedule 1 The Banks and their Commitments....................................69
Schedule 2 The Ships..........................................................70
Schedule 3 Form of Drawdown Notice............................................73
Schedule 4 Documents and evidence required as conditions precedent
(referred to in clause 9)............................................74
Schedule 5 Repayment Schedule.................................................78
Schedule 6 Form of Transfer Certificate.......................................79
Schedule 7 Calculation of Additional Cost.....................................83
Schedule 8 Form of officer's certificate
(referred to in clause 8.1.5(b)(iv))...............................85
THIS AGREEMENT is dated March 2005 and made BETWEEN:
(1) GOLAR GAS HOLDING COMPANY, INC. (a Liberian corporation) as Borrower;
(2) NORDEA BANK NORGE ASA, DnB NOR BANK ASA, CITIGROUP GLOBAL MARKET LIMITED
and FORTIS BANK (NEDERLAND) N.V. as Lead Arrangers;
(3) the banks and financial institutions whose names and addresses are set
out in Schedule 1 as lenders;
(4) NORDEA BANK FINLAND PLC, London Branch as Documentation Agent;
(5) NORDEA BANK NORGE ASA as Facility Agent;
(6) NORDEA BANK NORGE ASA as Security Agent; and
(7) CITIGROUP GLOBAL MARKET LIMITED, NORDEA BANK NORGE ASA and DnB NOR BANK
ASA as Book Runners.
IT IS AGREED as follows:
1 Purpose and definitions
1.1 Purpose
This Agreement sets out the terms and conditions upon and subject to
which the Banks agree, according to their several obligations, to make
available to the Borrower a term loan of up to three hundred million
Dollars ($300,000,000) to (a) refinance the Previous Facility and the
Previous Second Facility, (b) to pay fees and expenses incurred in
connection with this Agreement and (c) to provide for the Borrower's and
the Golar LNG Group's general corporate and working capital purposes.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"Account Bank" means Nordea Bank Norge ASA acting through its office at
P.O. Box 1166, Sentrum, 0107 Oslo, Norway (in respect of one of the
Earnings Accounts) and Nordea Bank Finland Plc, London Branch acting
through its office at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (in respect
of the other Earnings Accounts) and includes any other bank designated in
writing by the Facility Agent (at the request of the Borrower and acting
on the instructions of the Majority Banks) to be an "Account Bank" for
the purposes of the Security Documents (whether generally or in relation
to a specific Earnings Account);
"Additional Cost" means, in relation to any period, a percentage
calculated for such period at an annual rate determined in accordance
with Schedule 7;
"Additional Lease Security Amount" means the amount of any additional
security from time to time to be provided by the Borrower (or the Parent
or any other member of the Golar Gas Group) pursuant to clause 25 or any
other relevant provision of the relevant Lease Agreement, after having
first obtained the prior written consent of the Banks pursuant to clause
8.3.13;
"Affiliate" of any specified person means any other person directly or
indirectly controlling, or controlled by, or under direct or indirect
common control with such specified person;
"Agency Agreement" means the agency and trust agreement of even date
herewith executed or (as the context may require) to be executed between
(among others) the Lead Arrangers, the Facility Agent, the Security
Agent, the Banks, the Borrower and the Guarantors in the agreed form;
"A&L" means Alliance & Leicester plc, a company incorporated under the
laws of England with its registered office at ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇;
"Annual Financial Statements" means annual:
(a) financial statements of each Bareboat Charterer;
(b) consolidated financial statements of the Golar LNG Group;
each comprising a profit and loss account and a balance sheet and cash
flow statement and audited by the Auditors; and
(c) unaudited consolidated management accounts of the Golar Gas Group;
"Annualised EBITDA" means at any relevant date the EBITDA for the three
(3) month period ending on such date multiplied by four (4);
"Applicable Security Amount" means the amount from time to time of the
Applicable Security Amount as defined in each of the Lease Agreements;
"Approved Brokers" means, in relation to a Ship, such firm of insurance
brokers, appointed by its Bareboat Charterer, as may from time to time be
approved in writing by the Facility Agent for the purposes of this
Agreement;
"Approved Charter" means, in relation to a Ship, the time charterparty in
respect of such Ship details of which are specified in part 2 of schedule
2 and any future charter in respect of such Ship entered into in
accordance with clause 8.4.15 and including any extensions and
replacements thereof pursuant to the terms thereof approved by the
Security Agent, and including any other charters approved by the Security
Agent for the purposes of this Agreement and "Approved Charters" means
all of such approved charters;
"Approved Charterer" means, in relation to a Ship, the person who is the
charterer or employer of such Ship under an Approved Charter of such
Ship;
"Approved Management Agreement" means, in relation to each Ship:
(a) as at the Drawdown Date in respect of such Ship, the management
agreement between the relevant Bareboat Charterer and the Manager
thereof providing (inter alia) for the Manager to provide the
technical management of (inter alia) such Ship, details of which
are specified in Part 2 of Schedule 2; and
(b) any future management agreement relative (inter alia) to that Ship
entered into by the relevant Bareboat Charterer with an Approved
Manager on terms previously approved by the Facility Agent (such
approval not to be unreasonably withheld);
"Approved Manager" means, in relation to a Ship:
(a) with effect from the Drawdown Date in respect of such Ship, the
Manager for that Ship (including, but not limited to, any other
manager or sub-manager to whom the Manager may delegate its
management of such Ship on terms, inter alia, that the Manager
remains wholly responsible as principal to the relevant Bareboat
Charterer for the due performance of the relevant management
obligations); or
(b) any other entity appointed with the prior written consent of the
Facility Agent as manager or sub-manager of such Ship;
"Auditors" means PricewaterhouseCoopers or another first class firm of
international accountants;
"Banking Day" means a day on which dealings in deposits in Dollars are
carried on in the London Interbank Eurocurrency Market and (other than
Saturday or Sunday) on which banks are open for business in London, New
York City and Oslo (or any other relevant place of payment under clause
6);
"Banks" means the banks and financial institutions listed in Schedule 1
and includes their successors in title and assignees and transferees;
"Bareboat Charter" means, in relation to a Ship a bareboat charter
entered into between the Borrower and its relevant Bareboat Charterer,
and "Bareboat Charters" means all of such bareboat charters;
"Bareboat Charterer" means, in relation to a Ship the company
incorporated in England and Wales whose registered office is at ▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and whose name is set forth against the name of such
Ship in column (c) of the table part 1 of schedule 2 and "Bareboat
Charterers" means all of such bareboat charterers;
"Bareboat Charterer's Earnings" means, in relation to each Bareboat
Charterer, the Earnings payable to such Bareboat Charterer;
"Bareboat Charterer's Guarantee" means, in relation to a Ship, the
guarantee executed (or as the context may require) to be executed by the
relevant Bareboat Charterer in favour of the Security Agent in the agreed
form and "Bareboat Charterers' Guarantees" means all of such guarantees;
"Bareboat Earnings" means, in relation to each Ship, the Earnings payable
by the Bareboat Charterer of such Ship to the Borrower under or pursuant
to the relevant Bareboat Charter and/or any moneys payable to the
Borrower under any guarantee, security or other assurance given to the
Borrower at any time in respect of the relevant Bareboat Charterer's
obligations under or pursuant to such Bareboat Charter;
"Book Runners" means each of Nordea Bank Norge ASA of P.O. Box 1166,
Sentrum, 0107 Oslo, Norway, Citigroup plc ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and DnB NOR Bank ASA of Stranden ▇▇, ▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇;
"Borrower" means Golar Gas Holding Company, Inc., a company incorporated
in Liberia whose registered office is at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇;
"Borrowed Money" means Indebtedness incurred in respect of:
(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 the Borrower or any other member of
the Golar Gas Group which is or may be redeemable prior to the
Final Repayment Date and/or the full and final discharge of all
Indebtedness and liabilities of the Borrower under this Agreement;
"Breakage Costs" shall have the meaning ascribed to it in clause 11.1;
"capital expenditure" means expenditure incurred in:
(a) improving, upgrading or refurbishing any of the Ships or any other
vessels or other fixed assets of the Golar Gas Group;
(b) the acquisition of buildings, plant, machinery, vessels or other
fixed tangible assets of the Golar Gas Group or other expenditure
which is to be treated as capital expenditure in accordance with
the Relevant GAAP including Capitalised Lease Obligation
commitments
but does not include expenditure on repairing or maintaining any of the
Ships or any other vessels or other fixed assets;
"Capitalised Lease Obligation" of any person means the obligation to pay
rent or other payment amounts under a lease of (or other Borrowed Money
arrangements conveying the right to use) real or personal property which
is required to be classified and accounted for as a capitalised lease or
a liability on the face of a balance sheet of such person in accordance
with the Relevant GAAP (in the case of the Lease Agreements net of an
amount equal to the aggregate of the Applicable Security Amounts or any
Additional Lease Security Amount);
"Casualty Amount" means five million Dollars ($5,000,000) (or the
equivalent in any other currency) or, if the context so requires in
respect of any single refurbishment of the Ship to be undertaken by the
Borrower or, as the case may be, the Bareboat Charterer, during the
period of twenty four (24) months from the date of this Agreement, eight
million Dollars ($8,000,000);
"Charter Guarantee" means, in relation to a Ship:
(a) as at the date hereof, any guarantee in respect of the current
Approved Charter of that Ship which is specified in part 2 of
Schedule 2; and
(b) any other guarantee, letter of credit, Encumbrance or other
security given by any person to the relevant Bareboat Charterer or
(as the case may be) the Borrower in respect of the obligations of
the Approved Charterer under an Approved Charter of that Ship;
"Charter Guarantor" means, in relation to a Ship, any person who has
given a Charter Guarantee to the relevant Bareboat Charterer or (as the
case may be) the Borrower;
"Classification" means, in relation to each Ship, the classification set
forth against the name of such Ship in part 1 of Schedule 2 with its
Classification Society or such other classification as the Facility Agent
shall, at the request of the relevant Bareboat Charterer or (as the case
may be) the Borrower, have agreed in writing shall be treated as the
Classification of such Ship for the purposes of this Agreement;
"Classification Society" means, in relation to any Ship, the
classification society set forth against the name of such Ship in part 1
of Schedule 2 or such other classification society which the Facility
Agent shall, at the request of the relevant Bareboat Charterer or (as the
case may be) the Borrower, have agreed in writing shall be treated as its
Classification Society for the purposes of this Agreement;
"Commitment" means, in relation to a Bank, the amount set out opposite
its name in Schedule 1 or, as the case may be, in any relevant Transfer
Certificate, as reduced by any relevant term of this Agreement;
"Compulsory Acquisition" means requisition for title or other compulsory
acquisition, requisition, appropriation, expropriation, deprivation,
forfeiture or confiscation for any reason of a vessel by any Government
Entity or other competent authority, whether de jure or de facto, but
shall exclude requisition for use or hire not involving requisition of
title;
"Contribution" means, in relation to a Bank, the principal amount of the
Loan owing to such Bank at any relevant time;
"control" when used with respect to any person means either the ownership
of more than fifty per cent (50%) of the voting share capital (or
equivalent rights of ownership) of such person or the power to direct the
management and policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise, and
the terms "controlling" and "controlled" shall be construed accordingly;
"Creditors" means the Lead Arrangers, the Facility Agent, the Security
Agent and the Banks;
"Current Assets" means, on a consolidated basis, the current assets (as
determined in accordance with the Relevant GAAP) of the Golar Gas Group;
"Current Liabilities" means, on a consolidated basis, the current
liabilities (less the current portion of long-term debt, the current
portion of long-term capital lease obligations and mark to market swap
valuations) (as determined in accordance with the Relevant GAAP) of the
Golar Gas Group;
"Default" means any Event of Default or any event or circumstance which
with the giving of notice or lapse of time or the satisfaction of any
other condition (or any combination thereof) would constitute an Event of
Default;
"Disposal Repayment Amount" shall have the meaning ascribed thereto in
clause 4.4;
"Disposal Repayment Date" shall have the meaning ascribed thereto in
clause 4.4;
"Documentation Agent" means Nordea Bank Finland Plc, London branch acting
through its office at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"Dollars" and the symbol "$" mean the lawful currency of the United
States of America and in respect of all payments to be made under any of
the Security Documents mean funds which are for same day settlement in
the New York Clearing House Interbank Payments System (or such other U.S.
dollar funds as may at the relevant time be customary for the settlement
of international banking transactions denominated in U.S. dollars);
"Drawdown Date" means the date on which the Loan is drawn down;
"Drawdown Notice" means a notice substantially in the terms of Schedule
3;
"Earnings" means, in relation to any Ship, all moneys whatsoever from
time to time due or payable to the relevant Bareboat Charterer or the
Borrower during the Security Period arising out of the use or operation
of such Ship including (but without limiting the generality of the
foregoing) all freight, hire and passage moneys, income arising out of
pooling arrangements, compensation payable to the relevant Bareboat
Charterer or the Borrower in the event of requisition of such Ship for
hire, remuneration for salvage or towage services, demurrage and
detention moneys and damages for breach (or payments for variation or
termination) of any charterparty or other contract for the employment of
such Ship and any sums recoverable under any loss of earnings insurance
and includes the Bareboat Earnings;
"Earnings Account" means any of the accounts of the Borrower or any
Bareboat Charterer of any Ship or all of the Bareboat Charterers with an
Account Bank designated in writing by the Facility Agent (at the request
of the Borrower or (where an existing Earnings Account is to be closed by
the relevant Account Bank) the Facility Agent and in either case acting
on the instructions of the Majority Banks) to be an Earnings Account for
the purposes of the Security Documents (and includes any fixed term
deposit contract or account associated with such account and/or arranged
through the Account Bank as contemplated by clause 14.1.2(c)) and which
is subject to an effective Encumbrance in favour of the Security Agent as
security for the obligations of the Borrower under this Agreement in
accordance with clause 14 and "Earnings Accounts" means all of such
accounts and fixed term deposit contracts and/or accounts;
"Earnings Account Security" means a deed of assignment or charge executed
or (as the context may require) to be executed by any person in favour of
the Security Agent in respect of (inter alia) an Earnings Account as
security for the obligations of the Borrower under this Agreement in the
agreed form or in such other form as the Facility Agent may reasonably
require for the purpose of creating effective security over such account
under any applicable laws;
"EBITDA" means, for any period, the earnings before interest, taxes and
depreciation and amortisation (calculated as income from operations plus
any depreciation and amortisation, Interest Expense, and taxes on overall
net income deducted in calculating income from operations in respect of
such period) of the Golar Gas Group determined in accordance with the
Relevant GAAP on a consolidated basis;
"Eligible Swap Contract" means any swap contracts entered or (as the
context shall require) to be entered into between the Borrower and the
Swap Banks upon and pursuant to any swap confirmation made or to be made
by the Borrower and incorporating the terms and conditions of any ISDA
Master Agreement made between the Borrower and each of the Swap Banks for
the purpose of swapping for and/or capping to a fixed interest rate the
Borrower's exposure under this Agreement to fluctuations in Dollar
interest rates and "continuing Eligible Swap Contract" means, at any
relevant time, an Eligible Swap Contract under which any party thereto
has or may have continuing actual or contingent obligations at such time;
"Eligible Swap Liabilities" means Swap Liabilities owing to any Swap Bank
incurred under an Eligible Swap Contract;
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, security deposit arrangement,
trust arrangement or security interest or other encumbrance of any kind
securing any obligation of any person or any type of preferential
arrangement (including, without limitation, conditional sale or title
transfer and/or retention arrangements having a similar effect);
"Environmental Approval" means any consent, authorisation, licence or
approval of any governmental or public body or authorities or courts
applicable to any vessel or its operation required under any
Environmental Law;
"Environmental Claim" means any and all enforcement, clean-up, removal or
other governmental or regulatory actions or orders instituted or
completed pursuant to any Environmental Law or any Environmental Approval
together with claims made by any third party relating to damage,
contribution, loss or injury, resulting from any actual or threatened
emission, spill, release or discharge of a Pollutant from any vessel;
"Environmental Laws" means all national, international and state laws,
rules, regulations, treaties and conventions applicable to any vessel
pertaining to the pollution or protection of human health or the
environment including, without limitation, the carriage of Pollutants and
actual or threatened emissions, spills, releases or discharges of
Pollutants;
"Equity Distribution" means, in relation to a person, any of the
following:
(a) the purchase, redemption or other acquisition for any value by
such person or any Subsidiary of such person of any ordinary or
preference shares of such person's share capital;
(b) the repayment, redemption or acquisition for value by such person
or any Subsidiary of such person of any other form of Equity
Finance received or raised by such person; or
(c) the declaration or payment of any dividend, interest, commission
or other costs or charges of a periodic nature in respect of
Equity Finance or the distribution of any of such person's present
or future assets, undertakings, rights or revenues to any of its
shareholders;
"Equity Finance" means:
(a) the issue for cash of ordinary shares in the Borrower;
(b) the issue for cash of preference shares in the Borrower (other
than preference share capital which constitutes Borrowed Money of
the Borrower);
(c) the incurring of Subordinated Debt; or
(d) any combination of the foregoing;
"Event of Default" means any of the events or circumstances described in
clause 10.1;
"Facility Agent" means Nordea Bank Norge ASA of P.O. Box 1166, Sentrum,
0107 Oslo, Norway or such other person as may be appointed Facility Agent
for the Banks pursuant to the Agency Agreement;
"Faraway" means Faraway Maritime Shipping Company Limited a company
incorporated in Liberia whose registered office is at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
"Final Repayment Date" means, subject to clause 6.4, the final date
specified in the table in Schedule 5;
"Flag State" means, in relation to each Ship, the United Kingdom, or in
relation to the Ship known as "Golar Spirit", the ▇▇▇▇▇▇▇▇ Islands, or
such other state or territory as the Banks may approve, at the request of
the relevant Bareboat Charterer, as being the "Flag State" of such Ship
for the purposes of the Security Documents;
"Free Available Cash" means, at any relevant time, the aggregate amount
credited to and/or invested in Earnings Accounts, freely available for
use by the Borrower and/or any of the Bareboat Charterers which may,
notwithstanding any Encumbrance, right of set-off or agreement with any
other party, be withdrawn and/or encashed and used by it for any lawful
purpose without restriction (save pursuant to the Security Documents);
"Golar Gas Group" means the Borrower, the Bareboat Charterers and their
respective Subsidiaries (other than Oxbow, Golar Maritime and Faraway);
"Golar LNG Group" means the Parent and its Subsidiaries and for the
purposes of the definitions of "Annual Financial Statements" and
"Quarterly Financial Statements" (and the expression "Golar LNG Group"
where used in such definitions) any company or entity whose accounts are
to be consolidated with those of the Parent in accordance with Relevant
GAAP shall be treated as a Subsidiary of the Parent;
"Golar Maritime" means Golar Maritime (Asia) Inc. a company incorporated
in Liberia whose registered office is at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇;
"Government Entity" means and includes (whether having a distinct legal
personality or not) any national or local government authority, board,
commission, department, division, organ, instrumentality, court or agency
and any association, organisation or institution of which any of the
foregoing is a member or to whose jurisdiction any of the foregoing is
subject or in whose activities any of the foregoing is a participant;
"Guarantees" means each of the Bareboat Charterers' Guarantees and the
Parent Guarantee and "Guarantee" means any of them;
"Guarantor" means any of the Parent and the Bareboat Charterers and
"Guarantors" means all of them;
"Indebtedness" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
"Insurances" means, in relation to any Ship, all policies and contracts
of insurance (which expression includes all entries of such vessel in a
protection and indemnity or war risks association) which are from time to
time during the Security Period in place or taken out or entered into by
or for the benefit of, inter alia, the relevant Owner and/or the Borrower
and/or the Bareboat Charterer (whether in the sole name of such Owner or
in the joint names of such Owner, the Borrower, Bareboat Charterer and
any other person) in respect of such Ship or otherwise howsoever in
connection with such Ship and all benefits thereof (including claims of
whatsoever nature and return of premiums);
"Interest Period" means, in relation to the Loan, each period for the
calculation of interest in respect of the Loan ascertained in accordance
with clauses 3.2 and 3.3;
"ISM Code" means the International Safety Management Code for the Safe
Operation of Ships and for Pollution Prevention constituted pursuant to
Resolution A.741 (18) of the International Maritime Organisation and
incorporated into the Safety of Life at Sea Convention and includes any
amendments or extensions of it and any regulation issued pursuant to it;
"ISPS Code" means the International Ship and Port Facility Security Code
constituted pursuant to Resolution A.924(22) of the International
Maritime Organisation and incorporated into the Safety of Life at Sea
Convention and includes any amendments or extensions thereto and any
regulation issued pursuant thereto;
"Latest Drawdown Date" means 30 April 2005 or such later date as the
Banks in their absolute discretion agree in writing;
"L/C Bank" means Bayerische Landesbank, a German company acting out of
its London branch at ▇▇/▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Canadian
Imperial Bank of Commerce, a Canadian company acting out of its London
branch at Cottons Centre, Cottons Lane, London SE1 2QL and, where the
context so requires, such other bank as may replace the L/C Bank pursuant
to the Lease Agreements;
"L/C Deposit Account" means, with respect to each Lease Agreement, the
account opened by the Borrower with the L/C Banks into which the relevant
L/C Deposit has been paid;
"L/C Deposit Money" means, with respect to each L/C Deposit Account, each
cash deposit placed by the Borrower in the relevant L/C Deposit Account
as security for the Borrower's obligations under the Lease Agreement and
any moneys accruing to such account;
"L/C Deposit Surplus" means, with respect to each L/C Deposit, any amount
which may from time to time accrue by way of a financial benefit as
contemplated by the Approved Charters and which is surplus to the amount
required by the Borrower to discharge its obligations under the Lease
Agreements and which would, but for the provisions of clause 14.2,
otherwise be payable to the Borrower or such other person as it may
direct;
"L/C Deposit Surplus Account" means any account or accounts opened by the
Borrower with the Account Bank for the purpose of holding any L/C Deposit
Surplus in accordance with the provisions of clause 14.2;
"L/C Documents" means each of the Letters of Credit together with the
deposit agreement and deposit charge, guarantee and indemnity and
reimbursement agreement entered into between the Borrower and the
relevant L/C Bank in relation thereto;
"Lead Arrangers" means Nordea Bank Norge ASA of P.O. Box 1166, Sentrum,
0107 Oslo, Norway, DnB NOR Bank ASA of ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
Citigroup Global Market Limited of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ and Fortis Bank (Nederland) N.V., Oslo Branch of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ and "Lead Arranger" means any of them;
"Lease Agreement" means, in relation to a Ship:
(a) prior to a Standby Ship Disposition, the lease agreement dated 8
April 2003 entered into between the relevant Lessor and the
Borrower (as lessee thereunder); and
(b) following a Standby Ship Disposition, the relevant Standby Lease,
and "Lease Agreements" means all such lease agreements;
"Lease Documents" means, for the purposes of this agreement, each of the
Lease Agreements and the guarantees relating thereto issued by the Parent
in favour of the relevant Lessors;
"Lessor" means, in relation to a Ship, the party listed opposite the name
of that Ship in column (b) of the table in part 1 of schedule 2 and
"Lessors" means all of such companies;
"Lessor Parent Support Letter" means, in relation to a Ship, the support
letter issued or (as the context may require) to be issued by A&L in
favour of the Security Agent with respect to the relevant Lessor and
"Lessor Parent Support Letters" means all such support letters;
"Letter of Credit" means, with respect to each Ship, a letter of credit
issued by the relevant L/C Bank in favour of the relevant Lessor whereby
the L/C Bank has secured certain payment obligations of the Borrower to
the Lessor under the relevant Lease Agreement and "Letters of Credit"
means all such letters of credit;
"LIBOR" means, in relation to a particular period, the rate for deposits
of Dollars for a period equivalent to such period at or about 11 am
(London time) on the second London Banking Day before the first day of
such period as displayed on Telerate page 3750 (British Bankers'
Association Interest Settlement Rates) (or such other page as may replace
such page 3750 on such system or on any other system of the information
vendor for the time being designated by the British Bankers' Association
to calculate the BBA Interest Settlement Rate (as defined in the British
Bankers' Association's Recommended Terms and Conditions ("BBAIRS" terms)
dated August, 1985)), provided that if on such date no such rate is so
displayed, LIBOR for such period shall be the arithmetic mean (rounded
upward if necessary to four decimal places) of the rates respectively
quoted to the Facility Agent by each of the Reference Banks at the
request of the Facility Agent as such Reference Bank's offered rate for
deposits of Dollars in an amount approximately equal to the amount in
relation to which LIBOR is to be determined for a period equivalent to
such period to prime banks in the London Interbank Market at or about 11
am (London time) on the second Banking Day before the first day of such
period;
"Loan" means the aggregate principal amount borrowed, or to be borrowed,
by the Borrower on the Drawdown Date or (as the context may require) the
aggregate principal amount owing to the Banks under this Agreement at any
relevant time;
"London Banking Day" means a day on which banks are open for business in
London;
"Loss Payable Clauses" means the provisions regulating the manner of
payment of sums receivable under the Insurances of a Ship which are to be
incorporated in the relevant insurance documents, such Loss Payable
Clauses to be in the forms set out in schedule 1 to the Proceeds Deeds or
in such other forms as may from time to time be agreed in writing by the
Facility Agent;
"Majority Banks" means Banks the aggregate of whose Commitments exceed
sixty six and two thirds per cent. (66(2)/3%) of the Total Commitments
save that, where the Commitments of a single Bank exceed, or the
aggregate Commitments of Banks which are Affiliates of each other
together exceed, sixty six and two thirds per cent. (66(2)/3%) of the
Total Commitments, "Majority Banks" shall mean Banks the aggregate of
whose Commitments exceed the Commitment of such single Bank or the
aggregate of the Commitments of such Banks who are Affiliates of each
other;
"Manager" means Golar Management (UK) Limited of ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇;
"Manager's Undertaking" means, in relation to a Ship, an agreement
entered or (as the context may require) to be entered into between the
Approved Manager of such Ship and the Security Agent in the agreed form;
"Margin" means one per cent. (1%);
"▇▇▇▇▇▇▇▇ Island Conditions" means each of the following:
(a) originals of the duly executed Mortgage over "Golar Spirit"
(governed by the law of the ▇▇▇▇▇▇▇▇ Islands) and the Security
Assignment relating to such Mortgage (together, the "Re-flagging
Documents");
(b) any consents to the Re-flagging which may be required from any
party under the Proceeds Deed or otherwise;
(c) in relation to each of the parties to the Re-flagging Documents,
certified true copies of resolutions of each of its board of
directors approving such of the Re-flagging Documents to which it
is or is to be a party and authorising the signature, delivery and
performance of each such party's obligations thereunder, together
with originals or certified copies of any powers of attorney
issued by any party pursuant to such resolutions, or other
evidence acceptable to the Security Agent (in its absolute
discretion) of valid delegation of signing authority;
(d) documentary evidence that:
(i) the "Golar Spirit" is definitively and permanently
registered in the name of the relevant Lessor under the
▇▇▇▇▇▇▇▇ Islands flag;
(ii) the Reflagging Documents have been registered against the
"Golar Spirit" on the ▇▇▇▇▇▇▇▇ Islands register;
(iii) the "Golar Spirit" is in the absolute and unencumbered
ownership (other than Permitted Encumbrances) of the
relevant Lessor;
(iv) the "Golar Spirit" maintains the class +1A1, Tanker for
Liquefied Gas (-163(degree)C, 0.5 ton/m3, 0.7 kg/cm2, DAT
-10(degree)): MV+KV, EO with Det Norske Veritas free of all
overdue recommendations and conditions of such
Classification Society; and
(v) each of the insurers/brokers in respect of the "Golar
Spirit"'s insurances have confirmed that such Ship remains
insured and will remain insured with/through them on the
same terms as required by the terms of this Agreement at
the time of and following the re-flagging;
(e) a favourable legal opinion from Holland & Knight LLP in respect of
▇▇▇▇▇▇▇▇ Islands' law confirming (inter alia) the validity and
registration of the Re-flagging Documents under ▇▇▇▇▇▇▇▇ Islands
law; and
(f) any further opinions, consents, agreements and documents in
connection with the Re-flagging Documents which the Security Agent
may request by notice to the Borrower;
"month" means a period beginning in one calendar month and ending in the
next calendar month on the day numerically corresponding to the day of
the calendar month on which it started, provided that (a) if the period
started on the last Banking Day in a calendar month or if there is no
such numerically corresponding day, it shall end on the last Banking Day
in such next calendar month and (b) if such numerically corresponding day
is not a Banking Day, the period shall end on the next following Banking
Day in the same calendar month but if there is no such Banking Day it
shall end on the preceding Banking Day and "months" and "monthly" shall
be construed accordingly;
"Mortgage" means, in relation to a Ship:
(a) prior to a Standby Ship Disposition, a first priority statutory
British ship mortgage of such Ship and the deed of covenants
collateral thereto to be executed by the relevant Lessor in favour
of the Borrower (in its capacity as lessee) and with respect to
the Ship known as "Golar Spirit" in the event that such Ship is
reflagged in accordance with the terms of this Agreement, a first
preferred ▇▇▇▇▇▇▇▇ Islands ship mortgage to be executed by the
relevant Lessor in favour of the Borrower (in its capacity as
lessee); and
(b) after a Standby Ship Disposition, a first priority statutory
mortgage of such Ship and deed of covenants collateral thereto
each executed by the Standby Purchaser in favour of the Security
Agent in an agreed form,
and "Mortgages" means all of such mortgages and collateral deeds;
"Net Debt" means, on a consolidated basis, an amount equal to the
aggregate of all Borrowed Money of the Golar Gas Group other than
Subordinated Debt minus Free Available Cash;
"Net Sale Proceeds" means, in relation to a Ship, the sale price of such
ship receivable by the relevant Owner (after deducting the relevant
Owner's reasonable costs and out-of-pocket expenses incurred in
connection with such sale including reasonable and proper costs of
drydocking the relevant ship and carrying out any repairs on the ship for
the purposes of complying with its obligations under the relevant sale
agreement);
"Notices of Assignment" means, in relation to a Ship, the various notices
of assignment and acknowledgements in the forms set out in the relevant
schedules to the relevant Security Assignment, Three Party Deed and other
Security Documents (as applicable) or, in such other form as may from
time to time be required or agreed in writing by the Facility Agent;
"Operating Costs" means, in relation to any Ship during any period, all
moneys paid by or on behalf of the Borrower or the Bareboat Charterer of
such Ship during such period in respect of:
(a) liabilities incurred for the purpose of operating such Ship
including costs of ▇▇▇▇▇▇▇, insuring, repairing, maintaining and
drydocking such Ship in accordance with the requirements of this
Agreement, the Lease Agreements and any Approved Charters;
(b) all proper and reasonable expenses of managing and administering
the corporate affairs of such Bareboat Charterer;
(c) any remuneration of the Approved Manager of such Ship under the
Approved Management Agreement for such Ship;
(d) amounts incurred by way of capital expenditure on the relevant
Ship which is permitted under clause 8.3.2;
(e) amounts required to discharge liabilities or obligations to third
parties incurred in the ordinary course of the operation of such
Ship;
(f) the repair or making good any loss or damage arising out of a
casualty to the Ship or any collision, accident or other
circumstances resulting in death or personal injury to any person
and/or damage to any property or economic interests; and
(g) any amount equal to the approved proportion of any proper and
reasonable costs and expenses of managing and administering the
corporate affairs of the Borrower (and, for this purpose, the
approved proportion shall be such proportion as may from time to
time be approved in writing by the Facility Agent having regard to
the number of vessels owned by, or bareboat chartered to, members
of the Golar Gas Group);
"Owner" mean, with respect to each Ship:
(a) prior to a Standby Ship Disposition, the relevant Lessor; and
(b) following a Standby Ship Disposition, the Standby Purchaser;
"Oxbow" means Oxbow Holdings Inc. a company incorporated in the British
Virgin Islands whose registered office is at ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
"Parent" means Golar LNG Ltd. a company incorporated in Bermuda whose
registered office is at Par-▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇-▇▇-▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇;
"Parent Guarantee" means the guarantee issued or (as the context may
require) to be issued by the Parent in favour of the Security Agent in an
agreed form;
"Permitted Encumbrance" means:
(a) any Encumbrance created or existing pursuant to the Transaction
Documents (which for this purpose shall be the Transaction
Documents as defined in the Proceeds Deed); and
(b) Permitted Liens;
"Permitted Liens" means, to the extent not yet required to be discharged
pursuant to the terms of the relevant Mortgage:
(a) any ship repairer's or outfitter's possessory lien in respect of a
vessel owned or bareboat chartered by a member of the Golar Gas
Group or the Bareboat Charterers provided that (i) the lien on
such vessel is for an amount not exceeding two million Dollars
($2,000,000), (ii) all such liens (including the relevant lien) on
all vessels owned by members of the Golar Gas Group at the time
such lien arises or is conferred by contract are for an aggregate
amount not exceeding an amount equal to the product of two million
Dollars ($2,000,000) multiplied by the number of Ships at the
relevant time and (iii) no such lien shall be deemed a Permitted
Lien if it is incurred at a time when a Default has occurred and
is continuing until such time as the Default is no longer
continuing;
(b) any ship repairer's lien or outfitter's possessory lien not
falling within paragraph (a) of this definition but which has been
previously approved in writing by the Majority Banks;
(c) any lien on a vessel for current master's, officer's or crew's
wages outstanding in the ordinary course of trading; and
(d) any lien for salvage;
"Pollutant" means and includes pollutants, contaminants, toxic
substances, oil as defined in the United States Oil Pollution Act of 1990
and all hazardous substances as defined in the United States
Comprehensive Environmental Response, Compensation and Liability Act
1980;
"Port of Registry" means, in relation to each Ship, the port (if any) set
forth against the name of such Ship in Part 1 of schedule 2 or such other
port of registry (if any) in a Ship's Flag State approved in writing by
the Facility Agent acting on the instructions of the Banks at which such
Ship is, or is to be registered on, or at any relevant time after, the
date hereof;
"Pounds", "Sterling" and the symbol "(pound)" means the lawful currency
for the time being of the United Kingdom;
"Previous Facility" means the two hundred and sixty five million Dollars
($265,000,000) term loan made available by certain banks and financial
institutions pursuant to a loan agreement dated 8 April 2003;
"Previous Second Facility" means the second priority credit facility
dated 8 April 2003 between, amongst others, the Borrower and Nordea Bank
Norge ASA in its capacity as agent for certain other banks;
"Proceeds Account" means, in relation to a Ship, the Dollar and Sterling
accounts opened by the Lessor with the Proceeds Account Bank pursuant to
and in accordance with clause 2.8 of the relevant Proceeds Deed and
"Proceeds Accounts" means all such accounts;
"Proceeds Account Assignment" means, in relation to each Account, the
account charge or assignment (as the case may be) entered into between
the Borrower (as lessee) in favour of the Security Agent in an agreed
form and "Proceeds Account Charges" means all such charges;
"Proceeds Account Bank" means Nordea Bank Finland plc, London Branch;
"Proceeds Deed" means, in relation to each Ship, the deed of proceeds and
priorities between the Security Agent, the relevant Lessor, the Borrower,
the Standby Purchaser, and the Proceeds Account Bank with respect to such
Ship to be entered into on or about the date hereof and "Proceeds Deeds"
means all such proceeds and priority deeds;
"Quarterly Financial Statements" means quarterly:
(a) financial statements of each Bareboat Charterer;
(b) consolidated financial statements of the Golar LNG Group; and
(c) consolidated management accounts of the Golar Gas Group;
prepared as at 31 March, 30 June and 30 September (but not 31 December)
in each year (or three, six or nine (but not twelve) months after the
commencement of the Borrower's accounting period should its accounting
reference date be changed, with the prior written consent of the Facility
Agent (acting on the instructions of the Banks) from 31 December)
comprising a profit and loss account and a balance sheet and a cash flow
statement;
"Quiet Enjoyment Letter" means, in relation to each Ship (other than the
"GOLAR SPIRIT"), each letter entered or (as the context may require) to
be entered into between the relevant Lessor (or, following a Standby Ship
Disposition, the Standby Purchaser), the Borrower, the relevant Bareboat
Charterer, the Security Agent and the relevant Approved Charterer; in an
agreed form, and "Quiet Enjoyment Letters" means all such letters;
"Reference Banks" means Nordea Bank Norge ASA, DnB NOR Bank ASA, Citibank
N.A. and Fortis Bank (Nederland) N.V. and/or any other Bank appointed as
such pursuant to the Agency Agreement;
"Registry" means, in relation to each Ship, such registrar, commissioner
or representative of the relevant Flag State who is duly authorised and
empowered to register the relevant Ship, the relevant Owner's title to
such Ship and the relevant Mortgage under the laws and flag of the
relevant Flag State;
"Relevant GAAP" means accounting principles, concepts, bases and policies
generally adopted and accepted in the respective jurisdiction in which
the Borrower, the Bareboat Charterers and the Parent are required to
produce and file accounts from time to time;
"Relevant Fraction" shall mean for the purpose of the definition of
"Relevant Insured Amount", clause 4.2.1 and clause 4.4, a fraction whose
numerator is the market value of the relevant Ship and whose denominator
is the aggregate of the market values of all the Ships which remain the
subject of a Security Assignment or any Mortgage granted by the Standby
Purchaser (including such Ship) at the relevant date;
"Relevant Insured Amount" means, in relation to a Ship as at any relevant
date, an amount in Dollars equal to the Relevant Fraction as at such date
of the Loan as at such date;
"Relevant Jurisdiction" means any jurisdiction in which or where any
Security Party is incorporated, resident, domiciled, has a permanent
establishment, carries on, or has a place of business or is otherwise
effectively connected;
"Repayment Dates" means, subject to clause 6.4, the dates specified in
the table in schedule 5;
"Requisition Compensation" means, in relation to a Ship, all sums of
money or other compensation from time to time payable during the Security
Period by reason of the Compulsory Acquisition of such Ship;
"Rollover Date" means the last day of an Interest Period;
"Security Agent" means Nordea Bank Norge ASA of P.O. Box 1166 Sentrum,
0107, Oslo, Norway or such other person as may be appointed security
agent and trustee for the Banks pursuant to the Agency Agreement;
"Security Assignment" means, in relation to a Ship, the security
assignment entered or (as the context may require) to be entered into
between the Borrower and the Security Agent with respect to the
Borrower's right, title and interest in, to and under the relevant Lease,
the relevant Proceeds Account Assignment and the relevant Mortgage in an
agreed form and "Security Assignments" means all such assignments;
"Security Documents" means this Agreement, the Proceeds Deed, the
Mortgages, the Security Assignments, the Three Party Deeds, the
Subsidiary Pledges, the Guarantees, the Agency Agreement, the Manager's
Undertakings, the Quiet Enjoyment Letters, the Subordination Deed, any
Earnings Account Security, the Lessor Parent Support Letters, the Standby
Purchaser Assignment, the Standby Purchaser Share Security and any other
documents as may have been or shall from time to time after the date of
this Agreement be executed to guarantee and/or secure all or any part of,
any moneys from time to time owing by the Borrower pursuant to this
Agreement (whether or not any such document also secures moneys from time
to time owing pursuant to any other document or agreement) or by any
other person;
"Security Party" means any member of the Golar LNG Group who may at any
time be a party to any of the Security Documents;
"Security Period" means the period commencing on the date of this
Agreement and so long as any moneys are owing, actually or contingently,
under the Security Documents and while all or any part of the Loan or the
Commitments remain outstanding;
"Ships" means each of the ships listed in Part 1 of schedule 2 and "Ship"
means any of them;
"Solvent" means with respect to any person on a particular date, that on
such date (a) the fair market value of the assets of such person is
greater than the total amount of liabilities (including the present or
expected value of contingent liabilities) of such person, (b) the present
fair saleable value of the assets of such person is greater than the
amount that will be required to pay the probable liabilities of such
person for its debts as they become absolute and matured, (c) such person
is able to realise upon its assets and pay its debts and other
liabilities, including contingent obligations, as they mature, (d) such
person does not have unreasonably small capital and (e) such person does
not intend to or believe it will incur debts beyond its ability to pay as
they mature;
"Standby Lease" means with respect to a Ship, the Standby Lease defined
in the relevant Proceeds Deed;
"Standby Purchaser" means LNG Shipping Co., a Cayman Islands company
having its registered office at P.O. Box 694 GT, CIBC Financial Centre,
▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
"Standby Purchaser Account Bank" means Nordea Bank Finland plc, London
Branch in such capacity;
"Standby Purchaser Assignment" means, in relation to a Ship, entered or
(as the context may require) to be entered into between the Standby
Purchaser and the Security Agent containing an assignment by the Standby
Purchaser of its rights, title and interests in and to the earnings,
insurance and requisition compensation in respect of the Ship, the
Standby Purchaser Proceeds Accounts and the Standby Lease and "Standby
Purchaser Assignments" means all such assignments.
"Standby Purchaser Dollar Proceeds Account" means such Dollar account of
the Standby Purchaser with the Standby Purchaser Account Bank which the
parties hereto may agree shall be the "Standby Purchaser Dollar Proceeds
Account" for the purposes of the Proceeds Deed;
"Standby Purchaser Proceeds Accounts" means the Standby Purchaser Dollar
Proceeds Account and the Standby Purchaser Sterling Proceeds Account and
"Standby Purchaser Proceeds Account" means either of them;
"Standby Purchaser Shareholder" means Canadian Imperial Bank of Commerce;
"Standby Purchaser Share Security" means the share charge entered or (as
the context may require) to be entered into between the Standby Purchaser
Shareholder and the Security Agent containing a first priority charge by
the Standby Purchaser Shareholder of its rights, title and interests in
and to the shares in respect of the Standby Purchaser;
"Standby Purchaser Sterling Proceeds Account" means such Sterling account
of the Standby Purchaser with the Standby Purchaser Account Bank which
the parties hereto may agree shall be the "Standby Purchaser Sterling
Proceeds Account" for the purposes of the Proceeds Deed;
"Standby Ship Disposition" shall have the meaning given thereto in the
relevant Proceeds Deed;
"Subordinated Debt" of a person means any Indebtedness of the Borrower or
any of its Subsidiaries which is a Security Party owing to the Parent
which is subject to the Subordination Deed;
"Subordination Deed" means a deed entered or (as the context may require)
to be entered into between the Guarantors, the Borrower, ▇▇▇▇▇▇-▇▇▇▇▇▇
Shipping Corporation and the Security Agent in the agreed form;
"Subsidiary" of a person means any company or entity directly or
indirectly controlled by such person and a "wholly owned Subsidiary" of a
person means a Subsidiary which has no members except such person and
that person's wholly owned Subsidiaries and its or their nominees;
"Subsidiary Pledge" means, in relation to a Bareboat Charterer, the
pledge of all of the issued stock of such company entered or (as the
context may require) to be entered into by the Manager in favour of the
Security Agent in an agreed form and "Subsidiary Pledges" means all of
such pledges;
"Swap Banks" means DnB NOR Bank ASA, Nordea Bank Norge ASA, Citibank,
N.A. and Fortis Bank (Nederland N.V.) and includes their successors in
title and assignees and transferees;
"Swap Liabilities" means Indebtedness incurred in respect of swaps,
forward exchange contracts, futures and other derivatives (but so that
when calculating the value of any derivative transaction, only the marked
to market value shall be taken into account) and guarantees in respect of
such Indebtedness;
"Taxes" includes all present and future taxes, levies, imposts, duties,
fees or charges of whatever nature together with interest thereon and
penalties in respect thereof and "Taxation" shall be construed
accordingly;
"Three Party Deed" means, in relation to a Ship, a three party deed in
respect of such Ship executed or (as the context may require) to be
executed by the Borrower and the relevant Bareboat Charterer in favour of
the Security Agent in an agreed form and "Three Party Deeds" means all of
such three party deeds;
"Total Commitments" means, at any relevant time, the total of the
Commitments of all the Banks at such time;
"Total Loss" in relation to a Ship means:
(a) actual, constructive, compromised or arranged total loss of such
vessel; or
(b) the Compulsory Acquisition of such vessel; or
(c) the hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation of such vessel (other than where the
same amounts to the Compulsory Acquisition of such vessel) by any
Government Entity, or by persons acting or purporting to act on
behalf of any Government Entity, unless the vessel be released and
restored to the relevant Bareboat Charterer from such hijacking,
theft, condemnation, capture, seizure, arrest, detention or
confiscation within sixty (60) days after the occurrence thereof;
or
(d) the expiry of one hundred and eighty (180) days (or such longer
period as the Borrower and the Security Agent may agree) after
such vessel shall have been requisitioned for hire by a Government
Entity or other competent authority, whether dejure or de facto;
"Total Loss Proceeds" means, in respect of a Ship, the proceeds of any
policy or contract of insurances arising in respect of a Total Loss and
any Requisition Compensation received in respect of a Compulsory
Acquisition;
"Total Loss Repayment Date" means, in relation to a Ship, the date which
is the earlier of:
(a) the date one hundred and twenty (120) days after such ship became
a Total Loss or such later date as may be agreed in writing by the
Facility Agent (acting on the instructions of the Majority Banks)
if they are satisfied that the relevant Ship was properly insured
at the time of such Total Loss and that insurance proceeds in
respect of such Total Loss will be recovered in amounts sufficient
to enable the Borrower to comply with its prepayment obligations
under clauses 4.4 of this Agreement arising as a consequence of
such Total Loss and will be applied in accordance with the
Security Documents by the later date so agreed; and
(b) the date upon which insurance proceeds or Requisition Compensation
in respect of such Total Loss are received by the relevant
Bareboat Charterer (or the Security Agent as the relevant Bareboat
Charterer's assignee pursuant to the relevant Three Party Deed);
"Transaction Documents" means collectively the Approved Charters, the
Bareboat Charters and the Approved Management Agreements;
"Transfer Certificate" means a transfer certificate for the purposes of
clause 15.3 substantially in the form set out in schedule 6 (or in such
other form as the Banks may approve or require); and
"Transferee Bank" and "Transferor Bank" shall have the meaning ascribed
to those expressions in clause 15.3.
1.3 Insurance terms
In clause 8.4.1:
1.3.1 "excess risks" means the proportion (if any) of claims for general
average, salvage and salvage charges and under the ordinary collision
clause not recoverable in consequence of the value at which a Ship is
assessed for the purpose of such claims exceeding her insured value;
1.3.2 "protection and indemnity risks" means the usual risks (including oil
pollution) covered by a United Kingdom protection and indemnity
association or a protection and indemnity association which is managed in
the United Kingdom or Norway (including, without limitation, the
proportion (if any) of any sums payable to any other person or persons in
case of collision which are not recoverable under the hull and machinery
policies by reason of the incorporation therein of Clause 8 of the
Institute Time Clauses (Hulls) (1/11/95) or the Institute Amended Running
Down Clause (1/10/71) or any equivalent provision) or (if placed on
Norwegian terms) means protection and indemnity risks as defined in the
Norwegian Marine Insurance Plan of 1996 as amended; and
1.3.3 "war risks" includes those risks covered by the standard form of English
marine policy with Institute War and Strikes Clauses - Time (1/11/95)
attached or similar cover or (if placed on Norwegian terms) means the war
risks described in the Norwegian Marine Insurance Plan of 1996 as
amended.
1.4 Accounting terms
All accounting terms not otherwise defined in this Agreement shall have
the meanings assigned to them in accordance with Relevant GAAP (whether
or not such is indicated in this Agreement).
1.5 Headings
Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this
Agreement.
1.6 Construction of certain terms
In any Security Document unless the context otherwise requires:
1.6.1 references to clauses and schedules are to be construed as references to
clauses of, and schedules to, such Security Document and references to
such Security Document include its schedules;
1.6.2 references to (or to any specified provision of) any Security Document or
any other document shall be construed as references to such Security
Document, that provision or that document as in force for the time being
and as amended in accordance with terms thereof, or, as the case may be,
with the agreement of the relevant parties and (where such consent is, by
the terms of any Security Document or the relevant document, required to
be obtained as a condition to such amendment) with the consent of the
Facility Agent;
1.6.3 references to a "regulation" include any present or future regulation,
rule, directive, requirement, request or guideline (whether or not having
the force of law) of any agency, authority, central bank or government
department or any self-regulatory or other national or supra-national
authority;
1.6.4 words importing the plural shall include the singular and vice versa;
1.6.5 references to a time of day are to London time;
1.6.6 references to a person shall be construed as references to an individual,
firm, company, corporation, unincorporated body of persons or any
Government Entity;
1.6.7 references to any person includes such person's assignees and successors
in title;
1.6.8 references to a "guarantee" include references to an indemnity or other
assurance against financial loss including, without limitation, an
obligation to purchase assets or services as a consequence of a default
by any other person to pay any Indebtedness and "guaranteed" shall be
construed accordingly; and
1.6.9 references to any enactment shall be deemed to include references to such
enactment as re-enacted, amended or extended.
1.7 Majority Banks
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Banks or to be subject to the
consent or request of the Majority Banks or for any action to be taken on
the instructions of the Majority Banks, such opinion, consent, request or
instructions shall (as between the Banks) only be regarded as having been
validly given or issued by the Majority Banks if all the Banks shall have
received prior notice of the matter on which such opinion, consent,
request or instructions are required to be obtained and the relevant
majority of Banks shall have given or issued such opinion, consent,
request or instructions but so that the Borrower shall be entitled (and
bound) to assume that such notice shall have been duly received by each
Bank and that the relevant majority shall have been obtained to
constitute Majority Banks whether or not this is in fact the case.
1.8 Agreed forms
In this Agreement, any document expressed to be "in the agreed form"
means a document in a form agreed by (and for the purposes of
identification signed by or on behalf of) the Borrower and the Facility
Agent or (in the case of any of the other Security Documents) a document
in the form actually executed by both the relevant Security Party or
relevant Security Parties and the Security Agent.
1.9 Meaning of "associate" and "acting in concert"
For the purposes of this Agreement:
1.9.1 any question whether a person is an associate of another person is to be
determined in accordance with the following provisions of this clause
(any provision that a person is an associate of another person being
taken to mean that they are associates of each other);
1.9.2 a person is an associate of an individual if that person is the
individual's husband or wife or is a relative, or the husband or wife of
a relative, of the individual or of the individual's husband or wife;
1.9.3 a person is an associate of any person with whom he is in partnership,
and of the husband or wife or a relative of any individual with whom he
is in partnership;
1.9.4 a person is an associate of any person whom he employs or by whom he is
employed;
1.9.5 a person in his capacity as trustee of a trust (other than a pension
scheme or an employees' share scheme) is an associate of another person
if the beneficiaries of the trust include, or the terms of the trust
confer a power that may be exercised for the benefit of, that other
person or an associate of that other person;
1.9.6 a company or other entity is an associate of another company or entity:
(a) if the same person has control of both, or a person has control of
one and persons who are his associates, or he and persons who are
his associates, have control of the other; or
(b) if a group of two or more persons has control of each company or
other entity, and the groups either consist of the same persons or
could be regarded as consisting of the same persons by treating
(in one or more cases) a member of either group as replaced by a
person of whom he is an associate;
1.9.7 a company is an associate of another person if that person is a director
of or has control of it or if that person and persons who are his
associates together have control of it;
1.9.8 any two or more persons acting together to secure or exercise control of
a company or other entity shall be treated in relation to that company or
other entity as associates of each other and of any person acting on the
instructions of any of them to secure or exercise control of the company
or other entity,
1.9.9 for the purposes of this clause 1.9:
(a) a person is a relative of an individual if he is that individual's
brother, sister, uncle, aunt, nephew, ▇▇▇▇▇, lineal ancestor or
lineal descendant, treating:
(i) any relationship of the half blood as a relationship of the
whole blood and the stepchild or adopted child of any
person as his child; and
(ii) an illegitimate child as the legitimate child of his mother
and reputed father;
and any references in this Agreement to a husband or wife include a
former husband or wife and a reputed husband or wife;
(b) any director or other officer of a company or other entity is to
be treated as employed by that company or other entity;
1.9.10 a person is to be taken as having control of a company or other entity
if:
(a) that person owns more than fifty per cent. (50%) of the voting
share capital (or equivalent rights of ownership) of such company
or entity; or
(b) such person has the power to direct the policies and management of
such company or entity by contract or otherwise
and where two or more persons together satisfy either of the above
conditions, they are to be taken as having control of the company or
entity; and
1.9.11 persons acting in concert comprise persons who, pursuant to an agreement
or understanding (whether formal or informal), actively co-operate,
through the acquisition by any of them of shares in a company to obtain
or consolidate control over ten per cent. (10%) or more of (i) the
ordinary share capital or (ii) the voting rights attributable to the
ordinary share capital of that company and for this purpose persons who
are associates of each other shall be presumed to be persons acting in
concert unless the contrary is demonstrated to the satisfaction of the
Agent.
2 The Commitments and the Loan
2.1 Amount
Upon and subject to the terms and conditions of this Agreement and in
reliance on the representations and warranties in clause 7, the Banks
agree to lend to the Borrower the principal sum of up to three hundred
million Dollars ($300,000,000). The obligation of each Bank under this
Agreement shall be to contribute that proportion of the Loan which, as at
the Drawdown Date, its Commitment bears to the Total Commitments.
2.2 Obligations several
The obligations of each Bank under this Agreement are several; the
failure of any Bank to perform such obligations shall not relieve any
other Bank, the Lead Arrangers, the Facility Agent, the Security Agent or
the Borrower of any of their respective obligations or liabilities under
this Agreement nor shall the Lead Arrangers, the Facility Agent, or the
Security Agent be responsible for the obligations of any Bank (except for
its own obligations, if any, as a Bank) nor shall any Bank be responsible
for the obligations of any other Bank under this Agreement.
2.3 Interests several
Notwithstanding any other term of this Agreement (but without prejudice
to the provisions of this Agreement relating to or requiring action by
the Majority Banks) the interests of the Lead Arrangers, the Facility
Agent, the Security Agent and the Banks are several and the amount due to
the Lead Arrangers, the Facility Agent, the Security Agent (each for its
own account) and to each Bank is a separate and independent debt. The
Lead Arrangers, the Facility Agent, the Security Agent and any Bank shall
have the right to protect and enforce its rights arising out of this
Agreement and it shall not be necessary for the Lead Arrangers, the
Facility Agent, the Security Agent or any Bank (as the case may be) to be
joined as an additional party in any proceedings for this purpose.
2.4 Drawdown
Subject to the terms and conditions of this Agreement, the Loan shall be
made to the Borrower following receipt by the Facility Agent from the
Borrower of a Drawdown Notice not later than 10 a.m. (Oslo time) on the
3rd Banking Day before the proposed Drawdown Date (or such later date as
the Facility Agent may, in its absolute discretion, agree). A Drawdown
Notice shall be effective on actual receipt by the Facility Agent and,
once given, shall, subject as provided in clause 3.7.2), be irrevocable.
2.5 Amount
The principal amount specified in the Drawdown Notice for borrowing on
the Drawdown Date shall, subject to the terms and conditions of this
Agreement, not exceed three hundred million Dollars ($300,000,000).
2.6 Availability
Upon receipt of a Drawdown Notice complying with the terms of this
Agreement the Facility Agent shall promptly notify each Bank thereof and
of the date on which the Loan is to be made and, subject to the
provisions of clause 9, on such date on which the Loan is to be drawn
down each of the Banks shall make available to the Facility Agent its
portion of the Loan for payment by the Facility Agent in accordance with
clause 6.2.
2.7 Application of proceeds
Without prejudice to the Borrower's obligations under clause 8.1.3, none
of the Creditors shall have any responsibility for the application of
proceeds of the Loan by the Borrower.
2.8 Termination of Commitments
If the Loan is not drawn down by the Latest Drawdown Date, the
Commitments shall thereupon be automatically cancelled.
3 Interest
3.1 Normal interest rate
The Borrower shall pay interest on the Loan in respect of each Interest
Period relating thereto on each Rollover Date (or, in the case of an
Interest Period of more than three months, by instalments, the first
instalment three months from the commencement of such Interest Period and
the subsequent instalments at intervals of three months or, if shorter,
the period from the date of the preceding instalment until the Rollover
Date relative to such Interest Period) at the rate per annum determined
by the Facility Agent to be the aggregate of (a) the Margin, (b) the
Additional Cost (if any) and (c) LIBOR. Any portion of the interest equal
to Additional Cost shall be for the account of ▇▇▇▇▇ whose participation
in the Loan is subject to the Additional Cost.
3.2 Selection of Interest Periods
The Borrower may by notice received by the Facility Agent not later than
10 a.m. (Oslo time) on the third Banking Day before the beginning of each
Interest Period specify whether such Interest Period shall have a
duration of three (3) or six (6) months (or such other period as the
Borrower may select and all of the Banks may agree in writing).
3.3 Determination of Interest Periods
Every Interest Period shall be of the duration specified by the Borrower
pursuant to clause 3.2 but so that:
3.3.1 the first Interest Period in respect of the Loan shall commence on the
Drawdown Date and each subsequent Interest Period for the Loan shall
commence on the last day of the previous Interest Period;
3.3.2 if any Interest Period would otherwise overrun a Repayment Date, then the
Loan shall be divided into parts, so that there is one part in the amount
of the repayment instalment due on each Repayment Date falling during
that Interest Period and having an Interest Period ending on the relevant
Repayment Date and another part in the amount of the balance of the Loan
having an Interest Period ascertained in accordance with clause 3.2 and
the other provisions of this clause 3.3; and
3.3.3 if the Borrower fails to specify the duration of an Interest Period in
accordance with the provisions of clause 3.2 and this clause 3.3 such
Interest Period shall have a duration of three (3) months or such other
period as shall comply with this clause 3.3.
3.4 Default interest
If the Borrower fails to pay any sum (including, without limitation, any
sum payable pursuant to this clause 3.4) on its due date for payment
under any of the Security Documents, the Borrower shall pay interest on
such sum on demand from the due date up to the date of actual payment (as
well after as before judgment) at a rate determined by the Facility Agent
pursuant to this clause 3.4. The period beginning on such due date and
ending on such date of payment shall be divided into successive periods
of not more than three months as selected by the Facility Agent (after
consultation with the Banks) each of which (other than the first, which
shall commence on such due date) shall commence on the last day of the
preceding such period. The rate of interest applicable to each such
period shall be the aggregate (as determined by the Facility Agent of (a)
two per cent (2%) per annum, (b) Margin, (c) the Additional Cost and (d)
LIBOR for such period provided that if such unpaid sum is an amount of
principal which became due and payable, by reason of a declaration by the
Facility Agent under clause 10.2.1 or a prepayment pursuant to clauses
4.4, 4.7 or 12.1 on a date other than a Repayment Date relating thereto,
the first such period selected by the Facility Agent shall be of a
duration equal to the period between the due date of such principal sum
and such Repayment Date and interest shall be payable on such principal
sum during such period at a rate of two per cent (2%) per annum above the
aggregate of the Margin, the Additional Cost and the rate of LIBOR
applicable thereto immediately before it shall have become so due and
payable. Default interest shall be due and payable on the last day of
each such period as determined by the Facility Agent pursuant to this
clause 3.4 or, if earlier, on the date on which the sum in respect of
which such default interest is accruing shall actually be paid. If, for
the reasons specified in clause 3.7.1 the Facility Agent is unable to
determine a rate in accordance with the foregoing provisions of this
clause 3.4, each Bank shall promptly notify the Facility Agent of the
cost of funds to such Bank and interest on any sum not paid on its due
date for payment shall be calculated for each Bank at a rate determined
by the Facility Agent to be two per cent (2%) per annum above the
aggregate of the Margin, the Additional Cost and the cost of funds to
such Bank. Each Bank shall (without prejudice to the obligation of the
Borrower to pay such interest) provide reasonable detail as to the basis
on which it has determined such cost of funds.
3.5 Notification of interest rate
The Facility Agent shall notify the Borrower and the Banks promptly of
each rate of interest determined by it under this clause 3.
3.6 Reference Bank quotations
If any Reference Bank is unable or otherwise fails to furnish a quotation
for the purpose of calculating LIBOR pursuant to the proviso contained in
the definition of LIBOR the interest rate shall be determined, subject to
clause 3.7, on the basis of the quotations furnished by the remaining
Reference Banks.
3.7 Market disruption; non-availability
3.7.1 If and whenever, at any time prior to the commencement of any Interest
Period:
(a) the Facility Agent shall have determined (which determination
shall, in the absence of manifest error, be prima facie evidence)
that adequate and fair means do not exist for ascertaining LIBOR
during such Interest Period in accordance with the definition of
LIBOR in clause 1.2; or
(b) where applicable, none of the Reference Banks supplies the
Facility Agent with a quotation for the purpose of calculating
LIBOR; or
(c) the Facility Agent shall have received notification from Banks
with Contributions aggregating more than one third of the Loan
(or, prior to the Drawdown Date, Commitments aggregating not less
than one third of the Total Commitments) that deposits in Dollars
are not available to such Banks in the London Interbank Market in
the ordinary course of business in sufficient amounts to fund
their Contributions for such Interest Period or, where applicable
in accordance with the definition of LIBOR in clause 1.2, that the
arithmetic mean of the quotations for LIBOR supplied by the
Reference ▇▇▇▇▇ does not accurately reflect the cost to such Banks
of obtaining such deposits,
the Facility Agent shall forthwith give notice (a "Determination Notice")
thereof to the Borrower and to each of the Banks. A Determination Notice
shall contain particulars of the relevant circumstances giving rise to
its issue.
3.7.2 After the giving of any Determination Notice, the undrawn amount of the
Commitment shall not be borrowed until notice to the contrary is given to
the Borrower by the Facility Agent.
3.7.3 During the period of ten (10) days after any Determination Notice has
been given by the Facility Agent under clause 3.7.1 each affected Bank
shall certify an alternative basis (the "Substitute Basis") for
maintaining its Contribution. The Substitute Basis may (without
limitation) include alternative interest periods, alternative currencies
or alternative rates of interest but shall include a margin above the
cost of funds (including Additional Cost if any) to such Bank equivalent
to the Margin. Each Substitute Basis so certified shall be binding upon
the Borrower and shall take effect in accordance with its terms from the
date specified in the Determination Notice until such time as the
Facility Agent notifies the Borrower that none of the circumstances
specified in clause 3.7.1 continues to exist whereupon the normal
interest rate fixing provisions of the Agreement shall apply.
4 Repayment and prepayment
4.1 Repayment
The Borrower shall repay the Loan by instalments in the amounts and
(subject always to clause 6.4) on the Repayment Dates set out in schedule
5.
4.2 Mandatory Prepayment
4.2.1 If, in relation to a Ship, the chartering of that Ship under the Lease
Agreement with respect to that Ship terminates pursuant to clause 27.3
(Mandatory Prepayment) of such Lease Agreement then without the need for
any notice by any party hereto, the Commitment of each Bank with respect
to the amount which is equal to one hundred and fifteen percent (115%) of
the Relevant Fraction of the Loan shall be reduced to zero and the
principal amount of the Loan in such amount (or, if less, the principal
amount of the Loan then outstanding) and accrued interest thereon shall
become due and payable on the date when the chartering of that Ship
terminates in accordance with the terms of the Lease Agreement relating
to that Ship and on such date or, as the case may be, upon such first
written demand the Borrower shall forthwith pay such amount to the
Facility Agent as enables the Facility Agent to reduce the Indebtedness
in the amount described in clause 4.4.2.
4.2.2 If the Total Loss Proceeds or the Lessor Proceeds (as such term is
defined in the relevant Proceeds Deed) received by the Security Agent
pursuant to the terms of the relevant Proceeds Deed are less than the
aggregate of the amount required to be paid in accordance with this
clause 4.2, the Borrower shall forthwith pay to the Facility Agent such
additional amount as shall be required to pay the deficit.
4.3 Voluntary prepayment
The Borrower may prepay the Loan in whole or in part (being one million
Dollars ($1,000,000) or whole multiples of one million Dollars
($1,000,000)) on any Rollover Date relating to the part of the Loan to be
prepaid without premium or penalty subject always to the payment by the
Borrower of any Breakage Costs in accordance with clause 11.1 hereof and
provided that immediately prior to, and immediately after such prepayment
(unless the whole of the Loan has been prepaid), the Borrower will be in
compliance with the financial covenants in clause 8.5.
4.4 Prepayment on Total Loss and disposal of a Ship, etc.
4.4.1 Before Drawdown Date
On a Ship becoming a Total Loss (or suffering damage or being involved in
an incident which in the opinion of the Facility Agent, in consultation
with the Borrower, may result in such Ship subsequently being determined
to be a Total Loss) before the Drawdown Date, the obligation of the Banks
to advance the Loan shall immediately cease and the Commitments shall be
reduced to zero.
4.4.2 After the Drawdown Date
If, on or after the Drawdown Date:
(a) a Ship becomes a Total Loss; or
(b) a Ship is sold following the exercise by the Borrower of its
rights under clause 3.3 of a Lease Agreement and in accordance
with clause 8.4.14 is sold,
the Loan shall be reduced on the applicable Disposal Repayment Date by
the relevant Disposal Repayment Amount.
4.4.3 Defined terms
For the purposes of this clause 4.4:
"Disposal Repayment Amount" means in relation to a Disposal Repayment
Date, the amount in Dollars which is in relation to a Ship which has
become a Total Loss or is being sold, the amount which is one hundred and
fifteen per cent. (115%) of the Relevant Fraction of the Loan as at the
Disposal Repayment Date (or, if less, the amount of the Loan); and
"Disposal Repayment Date" means:
(a) where a Ship has become a Total Loss, its Total Loss Repayment
Date; or
(b) where a Ship is being sold in accordance with clause 8.4.14, the
date upon which the sale of such Ship is completed by the transfer
of title to such Ship to the purchaser in exchange for payment of
the relevant purchase price; or
4.4.4 Valuation of Ships
For the purposes of this clause 4.4 and to determine the Relevant
Fraction of the Loan, the Ships shall be valued in accordance with clause
8.2 at the cost of the Borrower save that, in the case of the sale of
such a Ship, the value of such Ship shall, for the purposes of this
clause, be deemed to be the Net Sale Proceeds of such Ship or, if higher
and if the purchaser is a member of the Golar LNG Group, the value of
such Ship as determined in accordance with clause 8.2.
4.4.5 Valuation conclusive and costs
The values determined in accordance with clause 4.4.4 shall be binding
upon the parties hereto for the purposes of determining the Disposal
Repayment Amount for a Disposal Repayment Date and all costs in
connection with the Facility Agent obtaining any valuation for such
purpose shall be borne by the Borrower.
4.4.6 Date of Total Loss
For the purpose of this Agreement, a Total Loss shall be deemed to have
occurred:
(a) in the case of an actual total loss of a vessel on the actual date
and at the time such vessel was lost or, if such date is not
known, on the date on which the vessel was last reported;
(b) in the case of a constructive total loss of a vessel, upon the
date and at the time notice of abandonment of such vessel is given
to the insurers of such vessel for the time being (provided a
claim for total loss is admitted by such insurers) or, if such
insurers do not forthwith admit such a claim, at the date and at
the time at which either a total loss is subsequently admitted by
the insurers or a total loss is subsequently adjudged by a
competent court of law or arbitration panel to have occurred or,
if earlier, the date falling six months after notice of
abandonment of such vessel was given to the insurers;
(c) in the case of a compromised or arranged total loss, on the date
upon which a binding agreement as to such compromised or arranged
total loss has been entered into by the insurers of the relevant
vessel;
(d) in the case of Compulsory Acquisition of a vessel, on the date
upon which the relevant requisition of title or other compulsory
acquisition of such vessel occurs; and
(e) in the case of hijacking, theft, condemnation, capture, seizure,
arrest, detention or confiscation of a vessel (other than where
the same amounts to Compulsory Acquisition of such vessel) by any
Government Entity, or by persons purporting to act on behalf of
any Government Entity, which deprives the owner of the vessel of
the use of such vessel for more than sixty (60) days, upon the
expiry of the period of 60 days after the date upon which the
relevant hijacking, theft, condemnation, capture, seizure, arrest,
detention or confiscation occurred.
4.4.7 Application of Total Loss and disposal proceeds
Provided no Default has occurred and is continuing and provided the
Borrower shall have complied with clauses 4.4 and 4.5, any of the
insurance moneys or Requisition Compensation in respect of a Total Loss
of a Ship received by the Facility Agent or the Security Agent pursuant
to the Proceeds Deeds or any Security Document shall be paid to the
relevant Bareboat Charterer or (if and to the extent necessary to ensure
compliance with clause 4.4) retained by the Facility Agent for
application in or towards making any prepayment and paying any other
moneys required under clauses 4.4 and 4.5. For this purpose, any such
moneys so received (or the relevant part thereof) may be applied, if the
Borrower and the Security Party to whom such moneys belong so requests
the Facility Agent in writing before the date of receipt thereof, in
effecting any prepayment required in accordance with clause 4.4 and
paying related amounts due under clause 4.5. The surplus (if any)
remaining after such payments shall be paid to the Earnings Account for
application in accordance with clause 4 of the Agency Agreement.
4.5 Amounts payable on prepayment
Any prepayment under this Agreement shall be made together with:
4.5.1 accrued interest on the amount to be prepaid to the date of such
prepayment (calculated in respect of any period during which the relevant
Substitute Basis has applied by virtue of clause 3.7.3, at a rate per
annum equal to the aggregate of (i) the Margin and (ii) the cost
(including any Additional Cost) to such Bank of funding its Contribution
for such period);
4.5.2 any additional amounts payable under clauses 6.7 and 12.2; and
4.5.3 all other sums payable by the Borrower to the relevant Bank under this
Agreement or any of the other Security Documents including, without
limitation any amounts payable under clause 11.
4.6 Notice of prepayment; reduction of repayment instalments
4.6.1 No prepayment may be effected under clause 4.3 or 4.7 unless the Borrower
shall have given the Facility Agent at least ten Banking Days' notice of
its intention to make such prepayment. Every notice of prepayment shall
be effective only on actual receipt by the Facility Agent, shall be
irrevocable, shall specify the amount to be prepaid and shall oblige the
Borrower to make such prepayment on the date specified. No amount prepaid
may be reborrowed. Any amount prepaid under clause 4.3 or clause 4.7
shall be applied in reducing the repayment instalments under clause 4.1
in inverse order of maturity or (if the Borrower so requests in writing
in the notice of its intention to make such prepayment) in order of
maturity. Any amount prepaid pursuant to clause 4.2 or 4.4 shall be
applied in reducing the repayment instalments under clause 4.1 pro rata.
4.6.2 The Borrower may not prepay the Loan or any part thereof save as
expressly provided in this Agreement.
4.7 Additional voluntary prepayment
4.7.1 The Borrower may also prepay (in whole but not in part), without premium
or penalty, but without prejudice to its obligations under clauses 3.7,
6.7 and 12.2:
(a) the Contribution of any Bank to which the Borrower shall have
become obliged to pay additional amounts under clauses 6.7 or
12.2; or
(b) any Bank's Contribution to which a Substitute Basis applies by
virtue of clause 3.7.3.
Upon any notice of such prepayment being given, the Commitment of the
relevant Bank shall be reduced to zero.
4.8 Prepayment of Earnings on default
If an Event of Default occurs and is continuing the Borrower shall be
obliged to pay all Earnings (not required for payment of scheduled
amounts of principal and interest under this Agreement or Operating
Costs) to the Facility Agent for application towards prepayment of the
Loan (which the Facility Agent shall do at the end of each Interest
Period).
5 Fees commission and expenses
5.1 Fees and commissions
The Borrower shall pay to the Facility Agent:
5.1.1 Arrangement fee
on the Drawdown Date, for the account of the Facility Agent (for
distribution amongst the Banks, at the discretion of the Lead Arrangers),
a non-refundable arrangement fee in an amount equal to zero point six
five percent (0.65%) of the Total Commitments as of the Drawdown Date;
5.1.2 Commitment commission
on the Drawdown Date (only if ten (10) Business Days or more after the
date hereof), a commitment fee in an amount equal to fifty percent (50%)
of the Margin on the unutilised Commitment of each Bank accrued from the
date of this Agreement until and including the Drawdown Date;
5.1.3 Agency fee
on the Drawdown Date and on each anniversary of such date until no moneys
are owing under the Security Documents and the Borrower is no longer
under any obligation, actual or contingent, under this Agreement, for the
account of the Facility Agent, an agency fee of an amount agreed between
the Borrower and the Facility Agent in a separate letter.
5.2 Expenses
5.2.1 The Borrower shall pay to the Facility Agent and/or the Security Agent
and/or the Documentation Agent (as the case may be) on a full indemnity
basis on demand all reasonable expenses (including legal, printing and
out-of-pocket expenses) incurred:
(a) by any of the Creditors in connection with the negotiation,
preparation, execution and, where relevant, registration of the
Security Documents, the syndication of the Loan (including,
without limitation, preparation of any information memoranda) and
of any amendment or extension of or the granting of any waiver or
consent under, any of the Security Documents; and
(b) any of the Creditors in contemplation of, or otherwise in
connection with, the enforcement of, or preservation of any rights
under, any of the Security Documents or otherwise in respect of
the moneys owing under any of the Security Documents
(c) together with interest at the rate referred to in clause 3.4 from
the date on which such expenses were incurred, to the date of
payment (as well after as before judgment).
5.3 Value added tax
All fees, commissions and expenses payable pursuant to this clause 5
shall be paid together with an amount equal to any value added tax
payable by any Creditor in respect of such fees and expenses. Any value
added tax chargeable in respect of any services supplied by any Creditor
under this Agreement shall, on delivery of a value added tax invoice, be
paid in addition to any sum agreed to be paid hereunder.
5.4 Stamp and other duties
The Borrower shall pay all stamp, documentary, registration or other like
duties or Taxes (including any duties or Taxes payable by the Creditors)
imposed on or in connection with any of the Security Documents and shall
indemnify the Creditors against any liability arising by reason of any
delay or omission by the Borrower to pay such duties or taxes.
6 Payments and taxes; accounts and calculations
6.1 No set-off or counterclaim; distribution to the Banks
The Borrower acknowledges that in performing their obligations under this
Agreement, the Banks will be incurring liabilities to third parties in
relation to the funding of amounts to the Borrower, such liabilities
matching the liabilities of the Borrower to the Banks and that it is
reasonable for the Banks to be entitled to receive payments from the
Borrower gross on the due date in order that the Banks are put in a
position to perform their matching obligations to the relevant third
parties. Accordingly all payments to be made by the Borrower under any of
the Security Documents shall, subject to the provisions of the Proceeds
Deeds, be made in full, without any set-off or counterclaim whatsoever
and, subject as provided in clause 6.7, free and clear of any deductions
or withholdings, in Dollars (except for costs, charges or expenses which
shall, at the request of the Facility Agent, be payable in the currency
in which they are incurred) on the due date to the account of the
Facility Agent at such bank as the Facility Agent may from time to time
specify for this purpose. Save where this Agreement specifically provides
for a payment to be made for the account of a particular Bank (including,
without limitation, clauses 3.1, 4.7, 5.2, 6.7, 11.1, 11.2, 11.3, 12.1
and 12.2) in which case the Facility Agent shall distribute the relevant
payment to the Bank concerned, payments to be made by the Borrower under
this Agreement shall be for the account of all the Banks and the Facility
Agent shall forthwith distribute such payments in like funds as are
received by the Facility Agent to the Banks rateably in accordance with
their Commitments or Contributions, as the case may be.
6.2 Payments by the Banks
All sums to be advanced by the Banks to the Borrower under this Agreement
shall be remitted in Dollars on the Drawdown Date to the account of the
Facility Agent at such bank as the Facility Agent may have notified to
the Banks and shall be paid by the Facility Agent on such date in like
funds as are received by the Facility Agent to the account specified in
the Drawdown Notice.
6.3 Facility Agent may assume receipt
Where any sum is to be paid under any of the Security Documents to the
Facility Agent for the account of another person, the Facility Agent may
assume that the payment will be made when due and the Facility Agent may
(but shall not be obliged to) make such sum available to the person so
entitled. If it proves to be the case that such payment was not made to
the Facility Agent, then the person to whom such sum was so made
available shall on request refund such sum to the Facility Agent together
with interest thereon sufficient to compensate the Facility Agent for the
cost of making available such sum up to the date of such repayment and
the person by whom such sum was payable shall indemnify the Facility
Agent and/or person to whom such sum was made available by the Facility
Agent for any and all loss or expense which the Facility Agent or such
person may sustain or incur as a consequence of such sum not having been
paid on its due date.
6.4 Non-Banking Days
When any payment under any of the Security Documents would otherwise be
due, or any Repayment Date would otherwise fall, on a day which is not a
Banking Day, the due date for payment or (as the case may be) such
Repayment Date shall be extended to the next following Banking Day unless
such Banking Day falls in the next calendar month in which case payment
shall be made, or (as the case may be) such Repayment Date shall fall, on
the immediately preceding Banking Day.
6.5 Calculations
All interest, commissions, fees and other payments of an annual nature
under any of the Security Documents shall accrue from day to day and be
calculated on the basis of actual days elapsed and a three hundred and
sixty (360) day year.
6.6 Certificates conclusive
Any certificate or determination of the Facility Agent or any Bank as to
any rate of interest or any other amount pursuant to and for the purposes
of any of the Security Documents shall, in the absence of manifest error,
be conclusive and binding on the Borrower and (in the case of a
certificate or determination by the Facility Agent) on the Banks.
6.7 Grossing-up for Taxes
If at any time the Borrower is required to make any deduction or
withholding in respect of Taxes from any payment due under any of the
Security Documents for the account of any Creditor (or if the Facility
Agent is required to make any deduction or withholding from a payment to
another Creditor, the sum due from the Borrower in respect of such
payment shall, be increased to the extent necessary to ensure that, after
the making of such deduction or withholding, the relevant Creditor
receives on the due date for such payment (and retains, free from any
liability in respect of such deduction or withholding), a net sum equal
to the sum which it would have received had no such deduction or
withholding been required to be made and the Borrower shall indemnify
each Creditor against any losses or costs incurred by such Creditor by
reason of any failure of the Borrower to make any such deduction or
withholding or by reason of any increased payment not being made on the
due date for such payment. The Borrower shall promptly deliver to the
Facility Agent any receipts, certificates or other proof evidencing the
amounts (if any) paid or payable in respect of any deduction or
withholding as aforesaid.
6.8 Grossing-up for Taxes - Banks
If at any time any Bank is required to make any deduction or withholding
in respect of Taxes from any payment due under any of the Security
Documents for the account of the Facility Agent or the Security Agent,
the sum due from such Bank in respect of such payment shall be increased
to the extent necessary to ensure that, after the making of such
deduction or withholding, the Facility Agent and the Security Agent
receives on the due date for such payment (and retains free from any
liability in respect of such deduction or withholding) a net sum equal to
the sum which it would have received had no such deduction or withholding
been required to be made and each Bank shall indemnify the Facility Agent
and the Security Agent against any losses or costs incurred by either of
them by reason of any failure of such Bank to make any such deduction or
withholding or by reason of any increased payment not being made on the
due date for such payment.
6.9 Bank accounts
Each Bank shall maintain, in accordance with its usual practice, an
account or accounts evidencing the amounts from time to time lent by,
owing to and paid to it under the Security Documents. The Facility Agent
shall maintain a control account showing the Loan and other sums owing to
the Facility Agent, the Security Agent and the Banks under the Security
Documents and all payments in respect thereof made from time to time. The
control account shall, in the absence of manifest error, be prima facie
evidence as to the amount from time to time owing to the Facility Agent,
the Security Agent and the Banks under the Security Documents.
6.10 Partial payments
If, on any date on which a payment is due to be made by the Borrower
under any of the Security Documents, the amount received by the Facility
Agent from the Borrower falls short of the total amount of the payment
due to be made by the Borrower on such date then, without prejudice to
any rights or remedies available to the Facility Agent, the Security
Agent and the Banks under any of the Security Documents, the Facility
Agent shall apply the amount actually received from the Borrower in or
towards discharge of the obligations of the Borrower under the Security
Documents in the following order, notwithstanding any appropriation made,
or purported to be made, by the Borrower:
6.10.1 firstly, in or towards payment, on a pro-rata basis, of any unpaid fees,
costs and expenses of the Facility Agent and the Security Agent under any
of the Security Documents;
6.10.2 secondly, in or towards payment to the Facility Agent, of any proportion
of the agency fee payable under clause 5.1.3 which shall have become due
but remains unpaid;
6.10.3 thirdly, in or towards payment to the Banks, on a pro-rata basis, of any
accrued interest which shall have become due under the Agreement but
remains unpaid;
6.10.4 fourthly, in or towards payment to the Banks, on a pro-rata basis, of any
principal which shall have become due under this Agreement but remains
unpaid; and
6.10.5 fifthly, in or towards payment of any other sum which shall have become
due under this Agreement but remains unpaid (and, if more than one such
sum so remains unpaid, on a pro-rata basis).
The order of application set out in this clause 6.10.1 to 6.10.5 may be
varied by the Facility Agent if all the Banks so direct.
6.11 Claw-back of Tax benefit
If, following any such deduction or withholding as is referred to in
clause 6.7 from any payment by the Borrower, any Creditor shall receive
or be granted a credit against or remission for any Taxes payable by it,
that Creditor shall, subject to the Borrower having made any increased
payment in accordance with clause 6.7 and to the extent that the relevant
Creditor can do so without prejudicing the retention of the amount of
such credit or remission and without prejudice to the right of any
Creditor to obtain any other relief or allowance which may be available
to it, reimburse the Borrower with such amount as that Creditor shall in
its absolute discretion certify to be the proportion of such credit or
remission as will leave it (after such reimbursement) in no worse
position than it would have been in had there been no such deduction or
withholding from the payment by the Borrower as aforesaid. Such
reimbursement shall be made forthwith upon the relevant Creditor
certifying that the amount of such credit or remission has been received
by it. Nothing contained in this Agreement shall oblige any Creditor to
rearrange its tax affairs or to disclose any information regarding its
tax affairs and computations. Without prejudice to the generality of the
foregoing, the Borrower shall not, by virtue of this clause 6.11, be
entitled to enquire about any Creditor's tax affairs.
7 Representations and warranties
7.1 Continuing representations and warranties
The Borrower represents and warrants to each of the Creditors that:
7.1.1 Due incorporation
each of the Security Parties is duly incorporated and validly existing
under the laws of its country of incorporation as a limited liability
company and has power to carry on its business as it is now being
conducted and to own its property and other assets;
7.1.2 Corporate power
the Borrower has power to borrow the Loan and each of the Security
Parties has power to execute and deliver and perform its obligations
under the Security Documents and the Transaction Documents to which it is
or is to be a party; all necessary corporate, shareholder and other
action has been taken to authorise the execution, delivery and
performance of the same and no limitation on the powers of any Security
Party to borrow will be exceeded as a result of the obligations of such
Security Party under the Security Documents;
7.1.3 Binding obligations
the Security Documents constitute or will, when executed, constitute
valid, legally binding and enforceable obligations of the relevant
Security Parties;
7.1.4 No conflict with other obligations
the execution and delivery of, the performance of its obligations under,
and compliance with the provisions of, the relevant Transaction Documents
and the Security Documents by the relevant Security Parties will not:
(a) contravene any existing applicable law, statute, rule or
regulation or any judgment, decree or permit to which any Security
Party is subject;
(b) conflict with, or result in any breach of any of the terms of, or
constitute a default under, any agreement or other instrument to
which any Security Party is a party or is subject or by which it
or any of its property is bound;
(c) contravene or conflict with any provision of the constitutional
documents of any Security Party; or
(d) result in the creation or imposition of or oblige any Security
Party or any other member of the Golar Gas Group to create any
Encumbrance (other than a Permitted Encumbrance) on any of the
undertakings, assets, rights or revenues of any Security Party or
any other member of the Golar Gas Group;
7.1.5 No filings required
save for the registration of the Mortgages with the relevant Registry
under the laws of the relevant Flag State, the registration or
presentation of particulars of charge of any of the Security Documents in
England or Bermuda with the relevant Registrar of Companies, it is not
necessary to ensure the legality, validity, enforceability or
admissibility in evidence of the Transaction Documents or any of the
Security Documents that they or any other instrument be notarised, filed,
recorded, registered or enrolled in any court, public office or elsewhere
in any Relevant Jurisdiction or that any stamp, registration or similar
tax or charge be paid in any Relevant Jurisdiction on or in relation to
the Transaction Documents and each of the Transaction Documents and the
Security Documents is in proper form for its enforcement in the courts of
each Relevant Jurisdiction except that for enforcement of any such
document in a court of competent jurisdiction in Liberia, a stamp must be
affixed to such document prior to its presentation to the court;
7.1.6 Choice of law
the choice of English law to govern the Transaction Documents, the
Security Documents and the submissions therein by the Security Parties to
the non-exclusive jurisdiction of the English courts are valid and
binding;
7.1.7 No immunity
no Security Party nor any of its assets is entitled to immunity on the
grounds of sovereignty or otherwise from any legal action or proceeding
(which shall include, without limitation, suit, attachment prior to
judgement, execution or other enforcement);
7.1.8 Bareboat Charterers
each of the Bareboat Charterers is a wholly-owned Subsidiary of the
Manager; and
7.1.9 Shareholdings in the Borrower
the Parent will on the Drawdown Date own directly or indirectly, legally
and beneficially, all the issued share capital of the Borrower.
7.2 Initial representations and warranties
The Borrower represents and warrants (and shall be deemed to represent
and warrant) to each of the Creditors:
7.2.1 No default in respect of other Indebtedness
no Security Party nor any other member of the Golar LNG Group is (nor
would with the giving of notice or lapse of time or the satisfaction of
any other condition or combination thereof be) in breach of or in default
under any agreement relating to Indebtedness to which it is a party or by
which it may be bound and no member of the Golar Gas Group is liable for
Borrowed Money or Swap Liabilities save as are permitted by clause 8.3.9;
7.2.2 Information
the information and reports furnished by any Security Party to the
Facility Agent, the Lead Arrangers, the Security Agent or the Banks in
connection with the negotiation and preparation of the Security Documents
was, to the best of such Security Party's and the Borrower's knowledge
and belief fair and accurate in all material respects when given (or, in
the case of any projections, was based on reasonable assumptions) subject
to any qualifications given in writing at the time of giving such
information or contained within such information and there are no other
facts the omission of which would have made any fact or statement therein
misleading in any material respect;
7.2.3 Compliance with Environmental Laws and Approvals
except as may already have been disclosed by the Borrower prior to the
date of this Agreement in writing to, and acknowledged in writing by, the
Facility Agent:
(a) to the best of the Borrower's knowledge and belief after due
enquiry, all members of the Golar LNG Group have complied in all
respects with the provisions of all applicable Environmental Laws;
(b) to the best of the Borrower's knowledge and belief after due
enquiry, all members of the Golar LNG Group have obtained all
Environmental Approvals and are in compliance in all respects with
all such applicable Environmental Approvals; and
(c) no member of the Golar LNG Group has received any notice of any
Environmental Claim against any member of the Golar LNG Group, or
any Ship;
7.2.4 No Environmental Claims
except as may already have been disclosed by the Borrower prior to the
date of this Agreement in writing to, and acknowledged in writing by, the
Facility Agent, there is no Environmental Claim pending or, to the best
of the Borrower's knowledge and belief after due enquiry, threatened
against any member of the Golar LNG Group, or any Ship;
7.2.5 No Environmental Incidents
except as may already have been disclosed by the Borrower prior to the
date of this Agreement in writing to, and acknowledged in writing by, the
Facility Agent, to the best of the Borrower's knowledge and belief after
due enquiry there has been no emission, spill, release or discharge of a
Pollutant from any Ship;
7.2.6 No other Environmental problems
except as may have already been disclosed by the Borrower prior to the
date of this Agreement in writing to and acknowledged in writing by, the
Facility Agent, to the best of the knowledge and belief of the Borrower
and its directors and other officers (having made due enquiry) there are
no circumstances arising from any breach of Environmental Laws or which
may give rise to an Environmental Claim which constitutes, or may give
rise to, the Event of Default specified in clause 10.1.25;
7.2.7 Copies true and complete
the copies of the Transaction Documents delivered or to be delivered to
the Facility Agent pursuant to clause 9 are, or will when delivered be,
true and complete copies of such documents; each of such documents will
when delivered constitute valid, binding and enforceable obligations of
the Security Parties and any other members of the Golar Gas Group who are
parties thereto and there will have been no amendments or variations
thereof or defaults thereunder;
7.2.8 Consents obtained
every consent, authorisation, licence or approval of, or registration
with or declaration to, governmental or public bodies or authorities or
courts required by any Security Party (and considered by the Facility
Agent, in its absolute discretion, to be material) to authorise, or
required by any Security Party in connection with, the execution,
delivery, validity, enforceability or admissibility in evidence of the
Transaction Documents and each of the Security Documents or the
performance by any Security Party of its obligations under the Security
Documents has been obtained or made and is in full force and effect and
there has been no default in the observance of any condition or
restriction (if any) imposed in, or in connection with, any of the same
and except as disclosed in writing by the Borrower to the Facility Agent
prior to the date of this Agreement;
7.2.9 Pari passu
the obligations of the Borrower under this Agreement are direct, general
and unconditional obligations of the Borrower and rank at least pari
passu with all other present and future unsecured and unsubordinated
Indebtedness of the Borrower with the exception of any obligations which
are mandatorily preferred by law and not by contract;
7.2.10 No withholding Taxes
no Taxes are imposed by withholding or otherwise on any payment to be
made by any Security Party under the Transaction Documents or the
Security Documents;
7.2.11 No Stamp Taxes
No stamp or other documentation Taxes are imposed on or by virtue of the
execution or delivery by any Security Party of the Transaction Documents
or the Security Documents or any other document or instrument to be
executed or delivered under any of the Security Documents;
7.2.12 No Default
no Default has occurred and is continuing;
7.2.13 Ships
each Ship will on the Drawdown Date be:
(a) in the absolute ownership of the relevant Lessor free and clear of
all Encumbrances (other than Permitted Encumbrances) who will on
the Drawdown Date be the sole, legal and beneficial owner of such
Ship;
(b) registered in the name of the relevant Lessor through the relevant
Registry as a ship under the laws and flag of the relevant Flag
State;
(c) operationally seaworthy and in every way fit for service;
(d) classed with the relevant Classification free of all overdue
requirements and recommendations of the relevant Classification
Society;
(e) managed by an Approved Manager under an Approved Management
Agreement; and
(f) continuing in the service of the relevant Approved Charterer under
its Approved Charter (if any);
7.2.14 Compliance with Approved Charters
each Bareboat Charterer has complied in all material respects with the
provisions of the relevant Approved Charter;
7.2.15 Compliance
each Bareboat Charterer and Approved Manager has complied at all material
times in all material respects with the ISM Code and to the extent
applicable, the ISPS Code;
7.2.16 No litigation
no litigation, investigation (to the knowledge of the officers of the
Borrower), arbitration or administrative proceeding is taking place,
pending or, to the knowledge of the officers of the Borrower, threatened
against any Security Party or any other member of the Golar LNG Group
which could have a material adverse effect on the business, assets or
financial condition of any Security Party;
7.2.17 Ship's employment
other than pursuant to the Approved Charters, no Ship is nor will on or
before the Drawdown Date be subject to any charter or contract or to any
agreement to enter into any charter or contract which, if entered into
after the date of this Agreement would have required the consent of the
Security Agent under this Agreement and there is no agreement or
arrangement whereby the Earnings of any Ship after the date of this
Agreement may be shared with any other person;
7.2.18 Freedom from Encumbrances
none of the Ships nor their respective Earnings, Insurances or
Requisition Compensation nor any other properties or rights which are, or
are to be, the subject of any of the Security Documents nor any part
thereof will be on the Drawdown Date subject to any Encumbrance other
than Permitted Encumbrances;
7.2.19 Shareholdings in Parent
Greenwich Holdings Limited ("Greenwich") or a subsidiary of Greenwich is
the legal and beneficial owner, directly or indirectly, of at least
twenty five per cent. (25%) of the ordinary share capital of the Parent;
7.2.20 No material adverse change
there has been no change in the business, financial condition or
operations of the Golar Gas Group since 30 September 2004 which is likely
to have a material adverse effect on its ability to perform its
obligations under this Agreement or the Security Documents;
7.2.21 Financial statements
the financial statements in respect of the nine (9) months ended as of 30
September 2004 as delivered to the Facility Agent have been prepared (in
the case of the Golar Gas Group on a pro-forma consolidated and combined
basis) in accordance with the Relevant GAAP (and the arrangements
contemplated by the Lease Agreements and arrangements relating thereto
are not in breach of the Relevant GAAP) which have been consistently
applied and present fairly and accurately the financial position of the
Borrower and each Bareboat Charterer and the consolidated and combined
financial position of the Golar Gas Group respectively as at such date
and the results of the operations of the Borrower and each Bareboat
Charterer and the consolidated and combined results of the Golar Gas
Group respectively for the nine (9) months ended on such date and, as at
such date, neither the Borrower nor any Bareboat Charterer nor the Golar
Gas Group had any liabilities (contingent or otherwise) or any unrealised
or anticipated losses which are not disclosed by, or reserved against or
provided for in, such financial statements and, in respect of any
contingent liabilities (whether or not material), with a description of
the basis for the liability and an explanation of why the liability is
not deemed to be material; and
7.2.22 Solvency
the Borrower and each Guarantor is Solvent and will continue to be
Solvent at and after the Drawdown Date.
7.3 Repetition of representations and warranties
On and as of the Drawdown Date and on each Rollover Date and any other
date for the payment of interest under clause 3.1, the Borrower shall be
deemed to repeat the representations and warranties in clause 7.1 as if
made with reference to the facts and circumstances existing on such day
and on and as of the Drawdown Date, the Borrower shall be deemed to
repeat the representations and warranties in clause 7.2.
7.4 Warranty as to future financial statements
On and as of each Rollover Date, the Borrower shall be deemed to
represent and warrant to each of the Creditors that the then latest
Annual Financial Statements then delivered to the Facility Agent (if any)
have been prepared in accordance with the Relevant GAAP and present
fairly and accurately the financial positions of the Borrower, the
Parent, the Bareboat Charterers, the consolidated financial positions of
the Golar LNG Group and the consolidated and combined financial position
of the Golar Gas Group, respectively as at the end of the financial
period to which the same relate and the results of the operations of the
Borrower, the Parent, the Bareboat Charterers, the consolidated results
of the operations of the Golar LNG Group and the consolidated and
combined financial position of the Golar Gas Group, respectively for the
financial period to which the same relate and, as at the end of such
financial period, neither the Borrower, the Parent, the Bareboat
Charterers nor the Golar LNG Group nor the Golar Gas Group had any
significant liabilities (contingent or otherwise) or any unrealised or
anticipated losses which are not disclosed by, or reserved against or
provided for in, such financial statements.
8 Undertakings
8.1 General
The Borrower undertakes with each of the Creditors that throughout the
Security Period it will:
8.1.1 Notice of Default
promptly inform the Facility Agent of any occurrence of which it becomes
aware which in the Borrower's reasonable opinion might materially and
adversely affect the ability of any Security Party to perform their
obligations under any of the Security Documents and, without limiting the
generality of the foregoing, will inform the Facility Agent of any
Default forthwith upon becoming aware thereof and will from time to time,
if so requested by the Facility Agent, confirm to the Facility Agent in
writing that, save as otherwise stated in such confirmation, no Default
has occurred and is continuing;
8.1.2 Consents and licences
without prejudice to clauses 7 and 8.6, obtain or cause to be obtained,
maintain in full force and effect and comply in all material respects
with the conditions and restrictions (if any) imposed in, or in
connection with, every consent, authorisation, licence or approval of
governmental or public bodies or authorities or courts and do, or cause
to be done, all other acts and things which may from time to time be
necessary or desirable under applicable law for the continued due
performance of all the obligations of the Security Parties under each of
the Security Documents;
8.1.3 Use of proceeds
use the Loan exclusively for the purposes specified in clause 1.1;
8.1.4 Pari passu
ensure that its obligations under this Agreement shall at all times rank
at least pari passu with all its other present and future unsecured and
unsubordinated Indebtedness with the exception of any obligations which
are mandatorily preferred by law and not by contract;
8.1.5 Financial statements, budgets, cashflows and certificates
(a) Accounts
prepare Annual Financial Statements in accordance with the
Relevant GAAP consistently applied in respect of each financial
year and cause the same to be reported on by the Auditors and
prepare Quarterly Financial Statements on the same basis as the
Annual Financial Statements and deliver sufficient copies of the
same to the Facility Agent for distribution to the Banks as soon
as practicable but not later than one hundred and eighty (180)
days (in the case of Annual Financial Statements) or sixty (60)
days (in the case of Quarterly Financial Statements) (or, in any
such case, such longer period as may be agreed in writing by the
Facility Agent) after the end of the financial period to which
they relate;
(b) Cashflow projections etc.
deliver to the Facility Agent, for distribution to the Banks
sufficient copies of the following documents:
(i) not later than thirty (30) days after the end of each
financial year, cash flow projection for the Golar Gas
Group for the next twelve months; and
(ii) at least thirty (30) days prior to the date on which it is
proposed to make a payment of any Equity Distribution under
proviso (a) to clause 8.3.3, a statement (certified by the
Chairman or President of the Borrower or, in his, her or
their absence, any other officer of the Borrower for the
time being acceptable to the Facility Agent) of the amount
of the proposed Equity Distribution and stating that the
payment of such Equity Distribution will comply with
proviso (a) to clause 8.3.3;
(iii) Certificate of compliance with clause 8.5
at the same time as the Borrower delivers to the Facility
Agent, pursuant to clause 8.1.5(a), copies of the Annual
Financial Statements or Quarterly Financial Statements (as
the case may be) the Borrower shall provide a statement
signed by the Chief Financial Officer or another senior
officer of the Borrower (in substantially the form set out
in schedule 8) confirming:
(A) the respective amounts of:
1) Free Available Cash
2) Current Assets and Current Liabilities
3) Annualised EBITDA
4) Net Debt
in respect of or, as the case may be, as at the end
of the financial period expiring on the date as at
and for which the relevant financial statements were
prepared (or, in the case of Annualised EBITDA,
calculated by reference to the three month period
expiring on such date) and that such amounts were
calculated in accordance with this Agreement and
Relevant GAAP;
(B) that such Annual Financial Statements or Quarterly
Financial Statements were prepared in accordance
with the Relevant GAAP or, if not so prepared,
setting forth full details of the adjustments
required to be made to such statements to reflect
the Relevant GAAP as necessary to calculate the
amounts referred to in sub-paragraph 8.1.5(b)(i)
above;
(C) that as at the date to which the relevant financial
statements are made up, the Borrower was in
compliance with the covenants and undertakings set
out in clause (or, if it was not in such compliance,
indicating the extent of the breach and the steps
intended to be taken to remedy the same); and
(D) that, as at the date not more than seven days prior
to the delivery of the certificate, no Default has
occurred and is continuing (or, if such is not the
case, specifying the same);
8.1.6 Delivery of reports
deliver to the Facility Agent, for distribution to the Banks, sufficient
copies for all the Banks of, in each case at the time of issue thereof
every report, circular, notice or other document issued by any member of
the Golar LNG Group to its creditors or (in the case of the Parent)
shareholders generally;
8.1.7 Provision of further information
provide the Facility Agent with such financial and other information
concerning the Security Parties, other members of the Golar LNG Group and
their respective affairs as the Facility Agent or any Bank (acting
through the Facility Agent) may from time to time reasonably require;
8.1.8 Tax filings and payment of Taxes
file or cause to be filed all tax returns required to be filed in all
jurisdictions in which it and any other members of the Golar LNG Group
are situated or carry on business or are otherwise subject to Taxation
and pay all Taxes shown to be due and payable on such returns or any
assessments made against it (other than those being contested in good
faith where such payment may be lawfully withheld) and adequate reserves
have been made for such payment should it be found to be payable;
8.1.9 Legal proceedings
upon becoming aware that the same may be threatened or pending and in any
case immediately after the commencement thereof give to the Facility
Agent notice in writing of any litigation or arbitration or
administrative proceedings or any dispute affecting the Borrower or any
other members of the Golar LNG Group, any of their respective assets,
rights or revenues which if determined against it might materially and
adversely affect the ability of the Borrower duly to perform and observe
its obligations under any of the Security Documents;
8.1.10 Obligations under Security Documents
duly and punctually perform each of the obligations expressed to be
assumed by it under the Security Documents;
8.1.11 Insurance
insure and keep insured all its properties and assets with underwriters
or insurance companies of repute to such extent and against such risks as
prudent companies engaged in businesses similar to its own are normally
insured; and
8.1.12 Compliance with laws and regulations
comply with the terms and conditions of all laws, regulations,
agreements, licences and concessions material to the carrying on of its
business.
8.2 Valuation of Ships
8.2.1 Valuation of Ships
(a) Each Ship shall be valued in Dollars as at each Disposal Repayment
Date by two independent firms of shipbrokers one appointed by the
Facility Agent and the other nominated by the Borrower from a list
of firms from time to time approved in writing by the Facility
Agent or, failing such nomination (within seven (7) days of a
request from the Facility Agent to nominate a firm) or approval,
appointed by the Facility Agent in its sole discretion (each
valuation to be made on the basis of a sale for prompt delivery
for cash at arms length on normal commercial terms as between a
willing buyer and a willing seller taking into account the benefit
of any Approved Charter or any other charterparty or other
engagement concerning each vessel and, if the Facility Agent
requires such valuation to be made after physical inspection, with
such physical inspection having been carried out).
(b) Unless one of such valuations is for an amount which is one
hundred and ten per cent. (110%) or more of the other, the mean of
such valuations shall constitute the value of the relevant vessel
for the purposes of this clause 8.2. If one such valuation is for
such amount, the Facility Agent shall appoint (at the cost of the
Borrower) a third independent firm of shipbrokers to value such
vessel on the same basis and in the same manner and the mean of
all three such valuations shall constitute the value of the
relevant vessel for the purposes of this clause 8.2.
(c) The value of each vessel as most recently determined in accordance
with the provisions of this clause 8.2 shall be binding upon the
parties hereto until such time as any further such valuations
shall be obtained.
8.2.2 Information
The Borrower undertakes to the Facility Agent to supply to the Facility
Agent and to any such shipbrokers such information concerning each Ship
and its condition as such shipbrokers may reasonably require for the
purpose of making any such valuations.
8.2.3 Costs
All costs in connection with the Facility Agent obtaining any valuation
of the Ships referred to in this clause shall be borne by the Borrower.
8.3 Negative undertakings concerning the Borrower and the Golar Gas Group
The Borrower undertakes with each of the Creditors that throughout the
Security Period it will not, and will procure that none of the Bareboat
Charterers will, without the prior written consent of the Facility Agent
(acting on the instructions of the Majority Banks):
8.3.1 No merger
merge or consolidate with any other person;
8.3.2 Capital expenditure
incur or make any capital expenditure, except for capital expenditure in
upgrading a Ship to meet the requirements of a third party charterer or
on upgrading or improving any Ship for other operational purposes
provided that such expenditure on any Ship does not in any period of
thirty (30) consecutive months exceed ten million Dollars ($10,000,000);
8.3.3 Equity Distributions
make or pay any Equity Distribution provided however that:
(a) the Borrower may (subject to having first provided the applicable
statement and certificate required under clause 8.1.5(b)(ii)) on
any date (the "Relevant Date") pay or make a dividend provided:
(i) no Default has occurred and is continuing;
(ii) the Free Available Cash at the Relevant Date will,
following the payment of the dividend above and any related
withdrawal from an Earnings Account under clause 14.1.2(d),
equal or exceed not less than an amount equal to the sum of
fifteen million Dollars ($15,000,000) as at the Relevant
Date; and
(iii) at the time of and during the period immediately following
the payment of the dividend and any related withdrawal from
an Earnings Account under clause 14.1.2(d) all of the Ships
shall be on charter to an Approved Charterer and each Ship
shall have a charter period of not less than twelve (12)
months remaining at a daily charterhire rate of not less
than forty thousand Dollars ($40,000) net per day per Ship;
(b) any Subsidiary of the Borrower may make Equity Distributions to
the Borrower or a wholly owned Subsidiary of the Borrower;
(c) the Borrower may pay Equity Distributions to the Parent of an
amount equal to all dividends and other amounts received by Oxbow
and/or Golar Maritime from Faraway;
8.3.4 Amendments to, and termination of, Approved Management Agreements
agree to, or permit or suffer, any material amendment of, or material
variation in the terms of, or cancel or rescind or otherwise terminate
any Approved Management Agreement save for a termination of the
appointment of any Approved Manager provided that upon such termination a
new Approved Manager has been appointed pursuant to an Approved
Management Agreement on terms approved in writing by the Facility Agent
(acting on the instructions of the Majority Banks) (such approval and
instructions not to be unreasonably withheld);
8.3.5 Series of disposals
sell, convey, transfer, lease or otherwise dispose of all or a
substantial part of the assets of the Borrower or of the Golar Gas Group
taken as a whole (whether by one transaction or a series of transactions
and whether related or not and, for the avoidance of doubt the Borrower's
interest in the share capital of Faraway shall not be deemed substantial
for the purpose of this clause 8.3.5);
8.3.6 Other business
in the case of a Bareboat Charterer, undertake any business other than
the chartering and operation of its Ship and in the case of the Borrower,
undertake any business other than leasing the Ships from the Owners,
chartering the Ships to the Bareboat Charterers and owning Oxbow and
Golar Maritime;
8.3.7 Acquisitions
in the case of a Bareboat Charterer, acquire or own any further assets
other than its rights arising under the Transaction Documents and other
contracts entered into by or on behalf of the relevant Bareboat Charterer
in the ordinary course of its business of chartering and operating its
Ship and, in the case of the Borrower, acquire or own any further assets
other than its rights arising under the Transaction Documents and other
contracts entered into by or on behalf of the Borrower in the ordinary
course of its business;
8.3.8 Other obligations
in the case of a Bareboat Charterer, incur or permit to exist any
obligations except for obligations arising under the Bareboat Charter for
its Ship, the Approved Charter, the Approved Management Agreement for its
Ship, any relevant charter, or the Security Documents or contracts
entered into in the ordinary course of its business of operating and
chartering such Ship and, in the case of the Borrower incur or permit to
exist any obligations except for obligations arising under the Security
Documents and contracts entered into by or on behalf of the Borrower in
the ordinary course of its business or the Transaction Documents (which
for this purpose shall be the Transaction Documents as defined in the
Proceeds Deed);
8.3.9 No borrowing or swaps
incur or permit to exist any Borrowed Money or Swap Liabilities of any
member of the Golar Gas Group except for:
(a) Borrowed Money pursuant to the Security Documents, the Lease
Documents or the L/C Documents;
(b) Borrowed Money owing by (i) the Borrower to any Bareboat Charterer
or (ii) any Bareboat Charterer to the Borrower (as the case may
be);
(c) Eligible Swap Liabilities; and
(d) Subordinated Debt;
8.3.10 Repayment of borrowings
in the case of a Bareboat Charterer, repay the principal of, or pay
interest on or any other sum in connection with any of its Borrowed Money
except for:
(a) Borrowed Money owing to the Creditors or the Lessors pursuant to
the Security Documents or the Lease Agreements (respectively); or
(b) provided no Event of Default has occurred and is continuing,
Borrowed Money owing to the Manager or any members of the Golar
Gas Group; or
(c) unless otherwise provided in the Proceeds Deed;
8.3.11 Sureties
except pursuant to the Security Documents, the Lease Documents, or the
L/C Documents, permit any of its Indebtedness to any person to be
guaranteed by any person (other than the Borrower) and save (in the case
of a member of the Golar Gas Group which owns or bareboat charters a
vessel) for guarantees or indemnities from time to time required in the
ordinary course by any protection and indemnity or war risks association
with which its vessel is entered, guarantees required to procure the
release of such vessel from any arrest, detention, attachment or levy or
guarantees or undertakings required for the salvage of such vessel and
guarantees required to obtain certificates of financial responsibility
required for the lawful trading and operation of its vessel;
8.3.12 Subsidiaries
form or acquire or permit to exist any Subsidiaries other than the
Bareboat Charterers, Golar Maritime, Oxbow or Faraway and any other
direct wholly owned Subsidiary of the Borrower incorporated for the
purpose of facilitating the chartering, management and operation of the
Ships or other vessels;
8.3.13 Encumbrances
permit any Encumbrance to subsist, arise or be created or extended over
all or any part of its present or future undertaking, assets, rights or
revenues to secure or prefer any present or future Indebtedness or other
liability or any other obligation of any person save for Permitted
Encumbrances;
8.3.14 Guarantees and counter indemnities
issue, or permit to remain outstanding, any guarantees or indemnities or
otherwise become directly or contingently liable for the obligations of,
or in favour of, any person or issue, or permit to remain outstanding,
any indemnity or other obligation to reimburse or secure to any other
person in respect of any such guarantee, indemnity or Encumbrance issued
or granted by such person in respect of obligations of any person except:
(a) pursuant to the Security Documents or the Lease Agreements;
(b) guarantees or indemnities from time to time required in the
ordinary course by any protection and indemnity or war risks
association with which a vessel which it owns is entered;
(c) guarantees required to procure the release of such vessel from any
arrest, detention, attachment or levy or guarantees or
undertakings required for the salvage of such a vessel; or
(d) guarantees by the Borrower (but not guarantees in respect of
Borrowed Money or Swap Liabilities if such Borrowed Money or Swap
Liabilities are not permitted by the express terms of clause
8.3.9) of obligations of their respective wholly owned
Subsidiaries (except Oxbow, Golar Maritime and Faraway) arising
under agreements entered into by them in the ordinary course of
their businesses;
8.3.15 Loans
make or permit to be outstanding any loans or grant or permit to be
outstanding any credit to any person or agree to do so other than:
(a) customary trade credit to third party customers in the ordinary
course of business; and
(b) loans to the Parent in order to facilitate cash management
provided that the requirements set out in this Agreement for
Equity Distribution have been met and/or to wholly owned
Subsidiaries of the Borrower (except Oxbow, Golar Maritime and
Faraway);
(c) the deposit of funds with an Account Bank by crediting the same to
an Earnings Account; and
(d) loans to the Bareboat Charterers from the Borrower.
8.3.16 Disposals
sell, transfer, lend or otherwise dispose of any part of its present or
future undertaking, assets, rights or revenues to any person (other than
to the Borrower or a wholly owned Subsidiary of the Borrower) unless the
Borrower has previously notified the Facility Agent in writing and
demonstrates to the satisfaction of the Majority Banks that such sale,
transfer, loan or other disposal will be on arms length terms and for not
less than open market value;
8.3.17 Accounting reference date
change its annual accounting reference date from 31 December;
8.3.18 Chartering-in
charter-in or hire any vessel from any person; or
8.3.19 Sale and leaseback transactions
directly or indirectly, enter into, assume, guarantee or otherwise become
liable with respect to any sale and leaseback transaction (being for
these purposes an arrangement relating to property now owned or hereafter
acquired whereby the Borrower or a Subsidiary of the Borrower transfers
such property to a person and leases it back from such person and
accounted for as a Capitalised Lease Obligation).
8.4 Ship covenants
The Borrower hereby covenants with each of the Creditors and undertakes
throughout the Security Period that it and/or each Bareboat Charterer
will:
8.4.1 Insurance
(a) Insured risks, amounts and terms
insure and keep its Ship insured free of cost and expense to the
Security Agent and in the joint names of the relevant Lessor (or,
following a Standby Ship Disposition, the Standby Purchaser), the
Borrower and the relevant Bareboat Charterer (but in the case of
the insurances referred to in sub-paragraph (i) below, no other
person, save with the prior written consent of the Security Agent
and subject to such person having, if so required by the Security
Agent and to the satisfaction of the Security Agent, executed a
first priority assignment in favour of the Security Agent of such
person's interest in the Insurances of such Ship on similar terms
to the assignment by the Borrower in the relevant Three Party
Deed) or, if so required by the Security Agent, in the joint names
of the relevant Lessor (or, following a Standby Ship Disposition,
the Standby Purchaser) , the Borrower, the relevant Bareboat
Charterer and the Security Agent, the Facility Agent and/or the
Banks (but without liability on the part of the Security Agent,
the Facility Agent and/or the Banks for premiums or calls):
(i) against fire and usual marine risks (including excess
risks) and war risks, on an agreed value basis, in such
amounts (but not in any event less than the higher of (1)
one hundred and twenty per cent. (120%) of the Relevant
Insured Amount for such Ship and (2) its market value as
most recently determined in accordance with clause 8.2
prior to the commencement of the period of the relevant
policy) and upon such terms as shall from time to time be
approved in writing by the Security Agent;
(ii) against protection and indemnity risks (including pollution
risks for a minimum amount of one billion Dollars
($1,000,000,000) or such higher or lower maximum amount of
cover against pollution risks as shall at any time be
available by entry of the relevant Ship with, and/or
arrangement by, and/or under any cover arranged by, or
through either a protection and indemnity association which
is a member of the "International Group" of protection and
indemnity associations (or any successor organisation
designated by the Security Agent for this purpose) or, if
the International Group or any such successor ceases to
exist or ceases to provide or arrange any cover for
pollution risks, or any supplemental cover for pollution
risks over and above that afforded by the basic entry of
the Ship with its protection and indemnity association, the
maximum aggregate amount of cover against pollution risks
as shall be available on the open market and by basic entry
with a protection and indemnity association provided that,
if the Ship in question has ceased trading or is in lay up
(and its cargo fully discharged) and in either case has
discharged all cargo, the level of pollution risks cover
afforded by ordinary protection and indemnity cover
available through a member of the International Group or
such successor organisation or, as the case may be, on the
open market in such circumstances shall be sufficient for
such purpose) for ships of the same type, size, age and
flag as the relevant Ship) for the full value and tonnage
of such Ship (as approved in writing by the Security Agent)
and upon such terms as shall from time to time be approved
in writing by the Security Agent; and
(iii) in respect of any Ship which is not at the relevant time
chartered by demise (which shall not, for this purpose,
include pursuant to the Bareboat Charters), against loss of
hire in such amounts (but in any event not less than the
rate of charterhire payable under the relevant charter for
such Ship) and upon such terms as shall from time to time
be approved in writing by the Security Agent;
and pay the Security Agent the cost (as conclusively
certified by the Security Agent) of:
(A) mortgagees' interest insurance and/or additional
perils (pollution) cover which the Security Agent
may from time to time effect in respect of any Ship
or all of the Ships upon such terms and in such
amount (not exceeding an amount equal to one hundred
and twenty per cent. (120%) of the Relevant Insured
Amount for such Ship or (as the case may be where
all of the Ships are so insured under one policy)
one hundred and twenty per cent. (120%) of the Loan
prior to the commencement of the period of the
relevant policy) as the Security Agent acting on the
instructions of the Majority Banks shall deem
desirable;
(B) any other insurance cover which the Security Agent
may from time to time effect in respect of any Ship
and/or in respect of the interest of any or all of
the Creditors in relation to such Ship or potential
third party liability of any or all of the Creditors
in relation to such Ship as the Security Agent shall
reasonably deem desirable having regard to (x) any
limitations in respect of amount or extent of cover
which may from time to time be applicable to any of
the other insurances referred to in this clause
8.4.1(a) and are not customarily applicable on the
date of this Agreement and/or (y) any change in the
practice of leading banks providing loans to finance
ships which carry Pollutants as to the insurances
which they require to be taken out to protect their
security interests in such ships and/or their
liability to third parties as a consequence of
financing such ships and/or taking a security
interest in such ships and/or (z) changes of
applicable laws (or the judicial or official
interpretation thereof) concerning the priority of
Environmental Claims as against ship mortgages
and/or the liability of mortgagees and lenders in
relation to Environmental Claims;
(b) Approved brokers, insurers and associations
effect the insurances aforesaid in Dollars or such other currency
as the Security Agent may approve and through the Approved Brokers
(if any) and with such insurance companies and/or underwriters as
shall from time to time be approved in writing by the Security
Agent; provided however that the insurances against war risks and
protection and indemnity risks may be effected by the entry of any
Ship with such war risks and protection and indemnity associations
as shall from time to time be approved in writing by the Security
Agent;
(c) Fleet liens, set-off and cancellation
if any of the insurances referred to in 8.4.1(a)(i) form part of a
fleet cover, procure that the Approved Brokers shall (if so
required by the Security Agent) undertake to the Security Agent
that they shall neither set off against any claims in respect of
any Ship any premiums due in respect of other vessels under such
fleet cover or any premiums due for other insurances, nor cancel
the insurance for reason of non-payment of premiums for other
vessels under such fleet cover or of premiums for such other
insurances, and shall undertake to issue a separate policy in
respect of each Ship if and when so requested by the Security
Agent;
(d) Payment of premiums and calls
punctually pay all premiums, calls, contributions or other sums
payable in respect of all such insurances and produce copies of
all relevant receipts or other evidence of payment when so
required by the Security Agent;
(e) Renewal
at least fourteen (14) days (or such shorter period as the
Security Agent may from time to time agree) before the relevant
policies, contracts or entries expire, notify the Security Agent
of the names of the brokers and/or the war risks and protection
and indemnity associations proposed to be employed by the
Borrower, the relevant Bareboat Charterer or any other party for
the purposes of the renewal of such insurances and of the amounts
in which such insurances are proposed to be renewed and the risks
to be covered and, subject to compliance with any requirements of
the Security Agent pursuant to this clause 8.4.1(a), procure that
appropriate instructions for the renewal of such insurances on the
terms so specified are given to the Approved Brokers and/or to the
approved war risks and protection and indemnity associations at
least ten (10) days (or such shorter period as the Security Agent
may from time to time agree) before the relevant policies,
contracts or entries expire, and that the Approved Brokers and/or
the approved war risks and protection and indemnity associations
will at least seven (7) days before such expiry (or within such
shorter period as the Security Agent may from time to time agree)
confirm in writing to the Security Agent as and when such renewals
have been effected in accordance with the instructions so given;
(f) Guarantees
arrange for the execution and delivery of such guarantees or
indemnities as may from time to time be required by any protection
and indemnity or war risks association;
(g) Hull policy documents, notices, loss payable clauses and brokers'
undertakings
deposit with the Approved Brokers (or procure the deposit of) all
slips, cover notes, policies, certificates of entry or other
instruments of insurance from time to time issued in connection
with such of the insurances referred to in clause 8.4.1(a)(i) as
are effected through the Approved Brokers and procure that the
interest of the Security Agent, the Facility Agent and the Banks
shall be endorsed thereon by incorporation of the relevant Loss
Payable Clause and by means of a Notice of Assignment of
Insurances (signed by the relevant Lessor, the Borrower, the
relevant Bareboat Charterer and by any other assured who shall
have assigned its interest in the Insurances to the Security
Agent) and that the Security Agent shall be furnished with pro
forma copies thereof and, unless the insurances are placed, to the
satisfaction of the Security Agent, upon the terms of the
Norwegian Marine Insurance Plan of 1996 as amended, a letter or
letters of undertaking from the Approved Brokers in such form as
shall from time to time be required by the Security Agent;
(h) Associations' loss payable clauses, undertakings and certificates
procure that any protection and indemnity and/or war risks
associations in which any Ship is for the time being entered shall
endorse the relevant Loss Payable Clause on the relevant
certificate of entry or policy and shall furnish the Security
Agent with a copy of such certificate of entry or policy and,
unless the insurances are placed, to the satisfaction of the
Security Agent, upon the terms of the Norwegian Marine Insurance
Plan of 1996 as amended, a letter or letters of undertaking in
such form as shall from time to time be required by the Security
Agent;
(i) Extent of cover and exclusions
take all necessary action and comply with all requirements which
may from time to time be applicable to the Insurances (including,
without limitation, the making of all requisite declarations
within any prescribed time limits and the payment of any
additional premiums or calls) so as to ensure that the Insurances
are not made subject to any exclusions or qualifications to which
the Security Agent has not given its prior written consent and are
otherwise maintained on terms and conditions from time to time
approved in writing by the Security Agent;
(j) Independent report
if so requested by the Security Agent where there has, in the
reasonable opinion of the Security Agent, been a significant
change in circumstances or the insurance arrangements or the
status of any insurer or association which may, in the reasonable
opinion of the Security Agent, affect the interests of the Banks,
but at the cost of the Borrower, furnish the Security Agent from
time to time with a detailed report signed by an independent firm
of marine insurance brokers appointed by the Security Agent
dealing with the insurances maintained on any Ship and stating the
opinion of such firm as to the adequacy thereof;
(k) Collection of claims
do all things necessary and provide all documents, evidence and
information to enable the Security Agent to collect or recover any
moneys which shall at any time become due in respect of the
Insurances;
(l) Employment of Ships
not employ any Ship or suffer such Ship to be employed otherwise
than in conformity with the terms of the Insurances (including any
warranties express or implied therein) without first obtaining the
consent of the insurers to such employment and complying with such
requirements as to extra premium or otherwise as the insurers may
prescribe;
(m) Application of recoveries
apply all sums receivable under the Insurances which are paid to
the Borrower and/or the relevant Bareboat Charterer in accordance
with the Loss Payable Clauses in repairing all damage and/or in
discharging the liability in respect of which such sums shall have
been received;
(n) Further insurance assignments
unless the relevant Ship is insured against the risks referred to
in clause 8.4.1(a)(i) upon the terms of the Norwegian Insurance
Plan of 1996 as amended, not permit the insurances referred to in
such clause to be effected in the name of any person (other than
the Security Agent and/or the other Creditors) unless such person
has to the satisfaction of the Security Agent executed a first
priority assignment in favour of the Security Agent of such
person's interest in the Insurances of such Ship on similar terms
(mutatis mutandis) to the assignment by the Borrower and the
relevant Bareboat Charterer in the relevant Three Party Deed;
8.4.2 Ship's name and registration
(a) not change the name of any Ship without first notifying the
Facility Agent;
(b) keep each Ship registered under the laws of its Flag State at the
relevant Port of Registry (and for the avoidance of doubt, the
Ship known as "Golar Spirit" can be reflagged to the ▇▇▇▇▇▇▇▇
Islands register provided that the ▇▇▇▇▇▇▇▇ Islands Conditions
have been satisfied as confirmed by the Facility Agent);
(c) not do or suffer to be done anything, or omit to do anything the
doing or omission of which could or might result in such
registration being forfeited or imperilled or which could or might
result in a Ship being required to be registered otherwise than
under the laws of its Flag State at the relevant Port of Registry;
(d) not register any Ship or permit its registration under any other
flag or at any other port without the prior written consent of the
Facility Agent (and for the avoidance of doubt, the Ship known as
"Golar Spirit" can be reflagged to the ▇▇▇▇▇▇▇▇ Islands register);
(e) if the said registration of a Ship is for a limited period, renew
the registration of such Ship at least forty-five (45) days prior
to the expiry of such registration and provide evidence of such
renewal to the Facility Agent at least thirty (30) days prior to
such expiry;
8.4.3 Repair
keep each Ship and its equipment, outfit and appurtenances tight,
staunch, strong, in good condition and in all respects seaworthy and fit
for its intended service and in a good and efficient state of repair and
procure that all repairs to or replacement of any damaged, worn or lost
parts or equipment are effected in such manner (both as regards
workmanship and quality of materials) as not to diminish the value of
such Ship;
8.4.4 Modification; removal of parts; equipment owned by third parties
not without the prior written consent of the Security Agent or suffer any
other person to:
(a) make any modification to any Ship in consequence of which her
structure, type or performance characteristics could or might be
materially altered or her value materially reduced; or
(b) remove any material part of any Ship or any equipment the value of
which is such that its removal from such Ship would materially
reduce the value of such Ship without replacing the same with
equivalent parts or equipment which are owned by the relevant
Lessor free from Encumbrances (other than Permitted Encumbrances);
or
(c) install on any Ship any equipment owned by a third party which
cannot be removed without causing damage to the structure or
fabric of such Ship;
8.4.5 Maintenance of class; compliance with regulations
at all times and without cost or expense to any Creditor comply with and
ensure that its Ship at all times complies with the provisions of the
Merchant Shipping Acts and all regulations and requirements (statutory or
otherwise) from time to time applicable to vessels registered at the Port
of Registry or otherwise applicable to its Ship and keep its Ship, or
cause her to be kept, in such condition as will entitle her to the
highest classification and rating for vessels of the same age and type in
the Classification Society or other classification society of like
standing approved by the Facility Agent and to deliver annually to the
Facility Agent a certificate from such class society showing such
classification to be maintained and will without cost or expense to the
Facility Agent irrevocably and unconditionally instruct and authorise the
classification society of its Ship, and shall request the classification
society to give an undertaking to the Security Agent as follows:
(a) to send to the Facility Agent, following receipt of a written
request from the Facility Agent, certified true copies of all
original class records held by the classification society relating
to the Ship;
(b) to allow the Facility Agent (or its agents), at any time and from
time to time, to inspect the original class and related records of
the relevant Bareboat Charterer and its Ship at the offices of the
classification society and to take copies of them;
(c) following receipt of a written request from the Facility Agent:
(i) to advise of any facts or matters which may result in or
have resulted in a change, suspension, discontinuance,
withdrawal or expiry of any Ship's class under the rules or
terms and conditions of the relevant Bareboat Charterer's
or the relevant Ship's membership of the classification
society; and
(ii) to confirm that the relevant Bareboat Charterer is not in
default of any of its contractual obligations or
liabilities to the classification society and, without
limiting the foregoing, that it has paid in full all fees
or other charges due and payable to the classification
society; and
(iii) if the relevant Bareboat Charterer is in default of any of
its contractual obligations or liabilities to the
classification society, to specify to the Facility Agent in
reasonable detail the facts and circumstances of such
default, the consequences thereof, and any remedy period
agreed or allowed by the classification society; and
(iv) to notify the Facility Agent immediately in writing if the
classification society receives notification from any
Bareboat Charterer or any other person that a Ship's
classification society is to be changed.
Notwithstanding the above instructions and undertakings given for
the benefit of the Facility Agent, each Bareboat Charterer shall
continue to be responsible to the classification society for the
performance and discharge of all its obligations and liabilities
relating to or arising out of or in connection with the contract
it has with the classification society, and nothing herein or
therein shall be construed as imposing any obligation or liability
of the Facility Agent to the classification society;
8.4.6 Surveys
submit each Ship to continuous surveys and such periodical or other
surveys as may be required for classification purposes and, if so
requested by the Facility Agent or if the survey report relates to or
recommends or requires repairs and/or other work the cost of which will
or may exceed the Casualty Amount, supply to the Facility Agent copies of
all survey reports issued in respect thereof;
8.4.7 Inspection
ensure that the Facility Agent, by surveyors or other persons appointed
by it for such purpose, may board any Ship at all reasonable times
without interfering with the operation of such Ship for the purpose of
inspecting her and to afford all proper facilities for such inspections
and for this purpose to give to the Facility Agent reasonable advance
notice of any intended drydocking of any Ship (whether for the purpose of
classification, survey or otherwise)(provided that any such surveyor or
other person shall undertake confidentiality with respect to disclosure
of the results of such inspection to any third parties other than the
Creditors and their advisers);
8.4.8 Prevention of and release from arrest
promptly in accordance with good ship owning practice pay and discharge
all debts, damages, liabilities and outgoings whatsoever which have given
or may give rise to maritime, statutory or possessory liens on, or claims
enforceable against, each Ship, her Earnings or Insurances or any part
thereof and, in the event of a writ or libel being filed against any
Ship, her Earnings or Insurances or any part thereof, or of any of the
same being arrested, attached or levied upon pursuant to legal process or
purported legal process or in the event of detention of any Ship in
exercise or purported exercise of any such lien or claim as aforesaid,
procure the release of such Ship, her Earnings and Insurances from such
arrest, detention attachment or levy or, as the case may be, the
discharge of the writ or libel forthwith upon, or in any event within ten
(10) Banking Days after, receiving notice thereof by providing bail or
procuring the provision of security or otherwise as the circumstances may
require;
8.4.9 Employment
not employ any Ship or permit her employment in any manner, trade or
business which is forbidden by international law, or which is unlawful or
illicit under the law of any relevant jurisdiction, or in carrying
illicit or prohibited goods, or in any manner whatsoever which may render
her liable to condemnation in a prize court, or to destruction, seizure,
confiscation, penalty or sanctions and, in the event of hostilities in
any part of the world (whether war be declared or not), not employ any
Ship or permit her employment in carrying any contraband goods, or enter
or trade to or to continue to trade in any zone which has been declared a
war zone by any Government Entity or by the relevant Ship's war risks
insurers unless the prior written consent of the Facility Agent is
obtained and such special insurance cover as the Facility Agent may
require shall have been effected by the relevant Bareboat Charterer at
its expense;
8.4.10 Information
promptly furnish the Facility Agent with all such information as it may
from time to time reasonably require regarding each Ship, her Insurances,
her employment, position and engagements, particulars of all towages and
salvages, and copies of all charters and other contracts for her
employment entered into by the relevant Bareboat Charterer, or otherwise
howsoever concerning her;
8.4.11 Notification of certain events
notify the Facility Agent forthwith by telefax or other means of
telecommunication in permanent written form thereafter confirmed by
letter of:
(a) any damage to any Ship requiring repairs the cost of which will or
might exceed its Casualty Amount;
(b) any occurrence in consequence of which any Ship has or may become
a Total Loss;
(c) any requisition of any Ship for hire;
(d) any requirement or recommendation made in relation to any Ship by
any insurer or its Classification Society or by any competent
authority which is not complied with in accordance with its terms;
(e) any arrest or detention of any Ship or any exercise or purported
exercise of a lien or other claim on such Ship or her Earnings or
Insurances or any part thereof;
(f) the occurrence of any material Environmental Claim against the
relevant Bareboat Charterer, any Ship or any other member of the
Golar LNG Group or any other ship from time to time owned,
technically managed or crewed by, or bareboat chartered to, any
member of the Golar LNG Group or any incident, event or
circumstances which may give rise to any such Environmental Claim
or an Event of Default specified in clause 10.1.25;
8.4.12 Payment of outgoings and evidence of payments
promptly pay all tolls, dues and other outgoings whatsoever in respect of
each Ship and her Earnings and Insurances and keep proper books of
account in respect of each Ship and her Earnings and, as and when the
Facility Agent may so require, make such books available for inspection
on behalf of the Facility Agent, and furnish satisfactory evidence that
the wages and allotments and the insurance and pension contributions of
the Master and crew are being promptly and regularly paid and that all
deductions from crew's wages in respect of any applicable tax liability
are being properly accounted for and that the Master has no claim for
disbursements other than those incurred by him in the ordinary course of
trading on the voyage then in progress;
8.4.13 Encumbrances
not without the prior written consent of the Facility Agent acting on the
instructions of all of the Banks (and then only subject to such
conditions as the Facility Agent may impose in accordance with such
instructions) create or purport or agree to create or permit to arise or
subsist any Encumbrance (other than Permitted Encumbrances) over or in
respect of any Ship, any share or interest therein or in any other part
of the Property (as defined in the Three Party Deed in respect of such
Ship) or the Assigned Property (as defined in the Security Assignment in
respect of such Ship);
8.4.14 Sale or other disposal
not without the prior written consent of the Facility Agent acting on the
instructions of the Majority Banks (and then only subject to such
conditions as the Facility Agent may impose in accordance with such
instructions) arrange or concur in the sale, any agreement to sell, the
transfer, abandonment or other disposition (whether pursuant to clause
3.3 of any Lease Agreement or otherwise) of any Ship or any share or
interest therein if the Net Sale Proceeds of such Ship will or may be
insufficient to enable the Borrower to comply with its obligations under
clause 4.4 of this Agreement arising upon the sale of such Ship
(including (without limitation) prepayment in full of the Loan if
required by clause 4.2 or 4.4) and the Borrower has not first
demonstrated to the reasonable satisfaction of the Facility Agent that
the Borrower will have other funds available to it provided by way of
Equity Finance to enable it to comply with such obligations upon
completion of the sale of such Ship;
8.4.15 Chartering
except pursuant to the relevant Bareboat Charter and an Approved Charter
referred to in part 2 of schedule 2 (in the case of a Bareboat Charterer)
not without the prior written consent of the Facility Agent acting on the
instructions of the Lead Arrangers (which the Facility Agent shall have
full liberty to withhold in accordance with such instructions) and, if
such consent is given, only subject to such conditions as the Facility
Agent may impose:
(a) let any Ship on demise charter for any period;
(b) let any Ship by any time or consecutive voyage charter for a term
which exceeds or which by virtue of any optional extensions
therein contained may exceed twelve (12) months' duration;
(c) de-activate or lay up the relevant Ship;
(d) let any Ship other than on arms' length terms;
provided always that:
(i) such consent shall not be withheld if the proposed
charterer or charter guarantor has a long term credit
rating of at least BBB+ from Standard & Poor's Ratings
Services and Baa1 from Moodys Investors Services Inc. or
any other rating agency approved in writing by the Facility
Agent for such purpose; and
(ii) in respect of the matters referred to in sub-paragraph of
this sub-clause the Facility Agent's consent shall be
deemed to have been given thereto if the Borrower shall not
have been informed by the Facility Agent either in writing
or by word of mouth that such consent is refused within
five (5) Banking Days (in London) of the time at which the
relevant Bareboat Charterer's application for such consent
was received by the Facility Agent;
8.4.16 Sharing of Earnings
not without the prior written consent of the Facility Agent acting on the
instructions of the Majority Banks (and then only subject to such
conditions as the Facility Agent may impose in accordance with such
instructions) to enter into any agreement or arrangement whereby the
Earnings of any Ship may be shared with any other person;
8.4.17 Payment of Earnings
to procure that the Earnings of any Ship are paid to the Security Agent
at all times if and when the same shall be or shall have become so
payable in accordance with the Security Documents and that any Earnings
of any Ship which are so payable and which are in the hands of a Bareboat
Charterer's brokers or agents are duly accounted for and paid over to the
Security Agent forthwith on demand;
8.4.18 Repairers' liens
not without the prior written consent of the Facility Agent put any Ship
into the possession of any person for the purpose of work being done upon
her unless:
(i) such person shall first have given to the Facility Agent in
terms satisfactory to it, a written undertaking not to
exercise any lien on the relevant Ship or her Earnings for
the cost of such work or otherwise; or
(ii) any such lien of such person would be a Permitted Lien; or
(iii) the cost of work is covered by insurance proceeds and the
underwriters have agreed to make payment directly to the
person who is to carry out the work; or
(iv) it has access to funds in an amount sufficient to cover the
cost of such work and has demonstrated that to the
satisfaction of the Facility Agent;
8.4.19 Manager
not appoint a manager of any Ship other than an Approved Manager;
8.4.20 Notice of Mortgage
place and at all times and places retain a properly certified copy of
each Mortgage (which shall form part of the relevant Ship's documents) on
board each Ship with her papers and cause such certified copy of such
Mortgage to be exhibited to any and all persons having business with such
Ship which might create or imply any commitment or encumbrance whatsoever
on or in respect of such Ship (other than a lien for crew's wages and
salvage) and to any representative of the Security Agent and place and
keep prominently displayed in the navigation room and in the Master's
cabin of each Ship (for so long as it is owned by the relevant Lessor) a
framed printed notice in plain type, prior to a Standby Ship Disposition,
in such form as the Security Agent shall notify the Borrower and/or the
relevant Bareboat Charterer and, following a Standby Ship disposition,
reading as follows:
"NOTICE OF MORTGAGE"
This Ship is subject to a first priority mortgage in favour of
Nordea Bank Norge ASA of P.O. Box 1166, Sentrum, 0107, Oslo,
Norway. Under the said mortgage, neither the Borrower nor any
charterer nor the Master of this Ship has any right, power or
authority to create, incur or permit to be imposed upon this Ship
any commitments or encumbrances whatsoever other than for crew's
wages and salvage".
and in terms of the said notice it is hereby agreed that save and subject
as otherwise herein provided, neither the relevant Bareboat Charterer nor
any other charterer nor the Master of any Ship nor any other person has
any right, power or authority to create, incur or permit to be imposed
upon any Ship any lien whatsoever other than for crew's wages and
salvage;
8.4.21 Conveyance on default
where a Ship is (or is to be) sold in exercise of any power contained in
the relevant Mortgage or otherwise conferred on the Mortgagee, execute,
forthwith upon request by the Security Agent pursuant to the Security
Assignment, such form of conveyance of such Ship as the Security Agent
may require;
8.4.22 Anti-drug abuse
without prejudice to clause 8.4.9, take all necessary and proper
precautions to prevent any infringements of the Anti-Drug Abuse Act of
1986 of the United States of America or any similar legislation
applicable to any Ship in any jurisdiction in or to which any Ship shall
be employed or located or trade or which may otherwise be applicable to
any Ship and/or the relevant Owner and/or the relevant Bareboat
Charterer;
8.4.23 Compliance with Environmental Laws
to comply in all material respects with all Environmental Laws applicable
to it and/or its Ship including, without limitation, requirements
relating to ▇▇▇▇▇▇▇ and establishment of financial responsibility and to
obtain and comply with all Environmental Approvals applicable to its
and/or its Ship; and
8.4.24 Compliance
comply at all material times in all material respects with the ISM Code
and, to the extent applicable, the ISPS Code.
8.5 Financial undertakings
The Borrower undertakes with each of the Creditors throughout the
Security Period that it will ensure that:
8.5.1 Free Available Cash
at all times the Free Available Cash shall not be less than fifteen
million Dollars ($15,000,000);
8.5.2 Working Capital
as at the end of each quarterly period during and at the end of each
financial year of the Borrower, the ratio of Current Assets to Current
Liabilities shall not be less than one (1) to one (1); and
8.5.3 Leverage
as at the end of each quarterly period during and as at the end of each
financial year of the Borrower, the ratio of Net Debt as at the end of
such period to Annualised EBITDA calculated by reference to such quarter
shall not exceed five (5) to one (1) for all subsequent quarterly
periods.
8.6 Undertakings concerning Approved Charters and Charter Guarantees
The Borrower hereby undertakes with each of the Creditors that it will,
and will procure (where applicable) that the Bareboat Charterers will,
throughout the Security Period:
8.6.1 Negative undertakings
not, without the previous written consent of the Facility Agent (such
consent not to be unreasonably withheld):
(a) Variations
agree to any material variation of any Approved Charter or any
Charter Guarantee; or
(b) Releases and waivers
release any Approved Charterer or Charter Guarantor from any of
its material obligations under an Approved Charter or Charter
Guarantee or waive any breach of its material obligations
thereunder or consent to any such act or omission of an Approved
Charterer or Charter Guarantor as would otherwise constitute such
breach; or
(c) Termination
terminate an Approved Charter for any reason whatsoever;
8.6.2 Performance of charter obligations
perform its obligations under each Approved Charter and use all
reasonable endeavours to procure that the Approved Charterer and any
Charter Guarantor shall perform their respective obligations under the
Approved Charter and any Charter Guarantee;
8.6.3 Information
supply to the Facility Agent all information, accounts and records that
may be necessary or of assistance to enable the Facility Agent to verify
the amount of all payments of charterhire and any other amount payable
under any Approved Charter and/or the Charter Guarantee; and
8.6.4 Assignability of charters
enter into an Approved Charter in respect of any Ship the nature or terms
of which do not permit the rights of the relevant Bareboat Charterer to
receive moneys under such charter to be assigned to the Security Agent
pursuant to the relevant Three Party Deed.
8.7 Undertakings concerning Lease Agreements and Bareboat Charters
The Borrower hereby undertakes with each of the Creditors that it will,
and will procure (where applicable) that the Bareboat Charterers will,
throughout the Security Period:
8.7.1 Negative undertakings
not, without the previous written consent of the Facility Agent (such
consent not to be unreasonably withheld):
(a) Variations
agree to any material variation of any Lease Agreement or any
Transaction Document; or
(b) Releases and waivers
release any other party to a Lease Agreement or a Bareboat Charter
from any of its obligations under a Lease Agreement or Bareboat
Charter or waive any breach of its obligations thereunder or
consent to any such act or omission of any other party to a Lease
Agreement or a Bareboat Charter as would otherwise constitute such
breach; or
(c) Termination
terminate a Lease Agreement or a Bareboat Charter for any reason
whatsoever;
8.7.2 Performance of charter obligations
perform its obligations under each Lease Agreement or any Approved
Management Agreement and use all reasonable endeavours to procure that
the other party to any relevant Lease Agreement or any Approved
Management Agreement shall perform its obligations under the Lease
Agreement or any Approved Management Agreement;
8.7.3 Information
supply to the Facility Agent all information, accounts and records that
may be necessary or of assistance to enable the Facility Agent to verify
the amount of all payments of charterhire and any other amount payable by
any person under any Lease Agreement or Bareboat Charter; and
8.7.4 Assignability of charters
enter into a Bareboat Charter in respect of any Ship the nature or terms
of which do not permit the rights of the Bareboat Charterer to receive
moneys under such charter to be assigned to the Security Agent pursuant
to the relevant Three Party Deed.
9 Conditions
9.1 Documents and evidence
The obligation of each Bank to make its Commitment available shall be
subject to the receipt by the Facility Agent or its duly authorised
representative:
9.1.1 on the date of this Agreement or by such later date (no later than three
(3) Banking Days before the Drawdown Date or such shorter period as the
Facility Agent may, in its absolute discretion, agree) of the documents
and evidence specified in part 1 of schedule 4; and
9.1.2 on or prior to the Drawdown Date, of the documents and evidence specified
in part 2 of schedule 4,
in each case in form and substance satisfactory to the Facility Agent.
9.2 General conditions precedent
The obligation of each Bank to make its Commitment available shall be
further subject to:
9.2.1 the representations and warranties in clause 7 being true and correct on
the Drawdown Date as if each was made with respect to the facts and
circumstances existing at such time; and
9.2.2 no Default having occurred and continuing at the time of the Drawdown
Date.
9.3 Waiver of conditions precedent and subsequent
The conditions specified in this clause 9 are inserted solely for the
benefit of the Creditors and may be waived by the Facility Agent (acting
on the instructions of all the Banks) in whole or in part with or without
conditions.
10 Events of Default
10.1 Events
There shall be an Event of Default if:
10.1.1 Non-payment: any Security Party fails to pay any sum due by it under any
of the Security Documents at the time, in the currency and in the manner
stipulated in the Security Documents (and so that, for this purpose, sums
payable on demand shall be treated as having been paid at the stipulated
time if paid within three (3) Banking Days of demand) and such failure
continues for more than three (3) Banking Days after written notice of
non-payment by the Facility Agent; or
10.1.2 Breach of Insurance and certain other obligations: the Borrower or any
relevant Bareboat Charterer fails to obtain and/or maintain the
Insurances in accordance with the requirements of the Security Documents
for any of the Ships or if any insurer in respect of such Insurances
cancels the Insurances or disclaims liability by reason, in either case,
of mis-statement in any proposal for the Insurances or for any other
failure or default on the part of the Borrower or any Bareboat Charterer
or any other person or the Borrower commits any breach of or omits to
observe any of the obligations or undertakings expressed to be assumed by
it under clauses 8.3 or 8.5 to 8.7 (inclusive); or
10.1.3 Breach of other obligations: any Security Party commits any breach of or
omits to observe any of its obligations or undertakings expressed to be
assumed by it under any of the Security Documents (other than those
referred to in clauses 10.1.1 and 10.1.2) which are considered by the
Majority Banks to be material and, in respect of any such breach or
omission which in the opinion of the Majority Banks is capable of remedy,
such action as the Majority Banks may require shall not have been taken
within thirty (30) days of the Facility Agent notifying the relevant
Security Party of such default and of such required action; or
10.1.4 Misrepresentation: any representation or warranty made or deemed to be
made or repeated by or in respect of any Security Party in or pursuant to
any of the Security Documents or in any notice, certificate or statement
referred to in or delivered under any of the Security Documents is or
proves to have been incorrect or misleading in any material respect when
made or deemed to be made or repeated; or
10.1.5 Cross-default: at any time the aggregate amount at such time of:
(a) any Borrowed Money or Swap Liabilities of any Security Party or
any other member of the Golar LNG Group which is not paid when due
and remains unpaid;
(b) any Borrowed Money of any Security Party or any other member of
the Golar LNG Group which has become (whether by declaration or
automatically in accordance with the relevant agreement or
instrument constituting the same), or is capable of being declared
due and payable prior to the date when it would otherwise have
become due (unless as a result of the exercise by the relevant
person of a voluntary right of prepayment or upon mandatory
prepayment as a result of a change of law or other circumstances
not constituting an event of default under, or breach of, any
agreement regulating and/or securing the relevant Borrowed Money);
(c) any facility or commitment available to any Security Party or any
other member of the Golar LNG Group relating to Borrowed Money
which has been withdrawn, suspended or cancelled by reason of any
default (however described) of the person concerned;
(d) the amount of Swap Liabilities of any Security Party or any other
member of the Golar LNG Group which are due or capable of being
declared due upon early termination of the relevant transaction by
the relevant counterparty; and
(e) any amounts demanded of, but not paid when due and remaining
unpaid by any Security Party or any other member of the Golar LNG
Group under any guarantee in respect of Borrowed Money or Swap
Liabilities
exceeds five million Dollars ($5,000,000); or
10.1.6 Legal process: any judgment or order made against the Borrower is not
stayed or complied with within thirty (30) days or a creditor attaches or
takes possession of, or a distress, execution, sequestration or other
process is levied or enforced upon or sued out against, all or a
substantial part of the undertakings, assets, rights or revenues of the
Borrower and is not discharged within thirty (30) days; or
10.1.7 Insolvency: the Borrower becomes insolvent or stops or suspends making
payments (whether of principal or interest) with respect to all or any
class of its debts or announces an intention to do so; or
10.1.8 Reduction or loss of capital: a meeting is convened by the Borrower for
the purpose of passing any resolution to purchase, reduce or redeem any
of its share capital (save and to the extent that such purchase reduction
or redemption of share capital is permitted by clause 8.3.3); or
10.1.9 Winding up: any petition is presented by the Borrower, the shareholders
of the Borrower or its directors or other step is taken by the Borrower,
the shareholders of the Borrower or its directors for the purpose of
winding up the Borrower or an order is made or resolution passed for the
winding up of the Borrower or a notice is issued convening a meeting for
the purpose of passing any such resolution; or
10.1.10 Administration: any petition is presented or other step is taken by the
Borrower or its directors for the purpose of the appointment of an
administrator of the Borrower or an administration order is made in
relation to the Borrower; or
10.1.11 Appointment of receivers and managers: any administrative or other
receiver is appointed of the Borrower or all or any substantial part of
its assets and/or undertaking or any other steps are taken to enforce any
Encumbrance over all or any substantial part of the assets of the
Borrower; or
10.1.12 Compositions: the Borrower enters into any kind of composition,
compromise or arrangement with its creditors generally (or any class of
them); or
10.1.13 Analogous proceedings: there occurs, in relation to the Borrower, in any
Relevant Jurisdiction or to the jurisdiction of whose courts any part of
their assets is subject, any event which, in the reasonable opinion of
the Facility Agent, appears in that country or territory to correspond
with, or have an effect equivalent or similar to, any of those mentioned
in clauses 10.1.7 to 10.1.12 (inclusive) or the Borrower otherwise
becomes subject, in any such country or territory, to the operation of
any law relating to insolvency, bankruptcy or liquidation; or
10.1.14 Cessation of business: the Borrower suspends or ceases to carry on its
business; or
10.1.15 Seizure: all or a material part of the undertaking, assets, rights or
revenues of, or shares or other ownership interests in, the Borrower are
seized, nationalised, expropriated or compulsorily acquired by or under
the authority of any government other than where such seizure results in
a Total Loss; or
10.1.16 Other parties: any of the events or circumstances described in clauses
10.1.6 to 10.1.15 (inclusive) arises or occurs (mutatis mutandis) in
relation to any other Security Party; or
10.1.17 Invalidity: any of the Security Documents shall at any time and for any
reason become invalid or unenforceable or otherwise cease to remain in
full force and effect in any respect which the Majority Banks consider to
be material or if the validity or enforceability of any of the Security
Documents shall at any time and for any reason be contested by any
Security Party which is a party thereto, or if any such Security Party
shall deny that it has any, or any further, liability thereunder; or
10.1.18 Unlawfulness: it becomes impossible or unlawful at any time for any
Security Party, to fulfil any of the covenants and obligations expressed
to be assumed by it in any of the Security Documents or for the Security
Agent to exercise the rights or any of them vested in it or them under
any of the Security Documents or otherwise; or
10.1.19 Repudiation: any Security Party repudiates any of the Security Documents
or does or causes or permits to be done any act or thing evidencing an
intention to repudiate any of the Security Documents; or
10.1.20 Encumbrances enforced: any Encumbrance (other than Permitted Liens) in
respect of any of the property (or part thereof) which is the subject of
any of the Security Documents is enforced; or
10.1.21 Material adverse change: there occurs a material adverse change in the
financial condition of the Borrower or any member of the Golar LNG Group
or of the Golar LNG Group taken as a whole the effect of which is, in the
opinion of the Facility Agent, materially to imperil, delay or prevent
the due fulfilment by such person of any of their respective obligations
contained in the Security Documents; or
10.1.22 Arrest: any Ship is arrested, confiscated, seized, taken in execution,
impounded, forfeited, detained in exercise or purported exercise of any
possessory lien or other claim and the Borrower and/or the relevant
Bareboat Charterer shall fail to procure the release of such Ship within
a period of ten (10) Banking Days thereafter (or such longer period as
the Facility Agent may agree in writing); or
10.1.23 Registration: the registration of any Ship under the laws and flag of
the relevant Flag State is cancelled or terminated or, where applicable,
not renewed without the prior written consent of the Facility Agent; or
10.1.24 Unrest: the Flag State of any Ship or any Relevant Jurisdiction becomes
involved in hostilities or civil war or there is a seizure of power in
the Flag State or any Relevant Jurisdiction by unconstitutional means if,
in any such case, such event could in the opinion of the Facility Agent
may be expected to have a material adverse effect on the security created
by any of the Security Documents and, within fourteen (14) days of notice
from the Facility Agent to do so, the Borrower and/or the relevant
Bareboat Charterer has not taken all such action as the Facility Agent
may require to ensure that such circumstances will not have such an
effect; or
10.1.25 Environment: the Borrower or any other member of the Golar LNG Group
fails or has failed to comply with any applicable Environmental Law or
any applicable Environmental Approval or any Ship or any other vessel is
or has been involved in any incident which gives rise, has given rise or
may give rise, to an Environmental Claim against any member of the Golar
LNG Group or any vessel owned by, or bareboat chartered to, any member of
the Golar LNG Group if, in any such case, such non-compliance or incident
or the consequences thereof could, in the opinion of the Facility Agent
and having regard to any insurance cover available to meet any
liabilities arising in relation to such incident, have a material adverse
effect on (i) the business, assets, operations, property or financial
condition of the Borrower or any Bareboat Charterer or the Golar LNG
Group as a whole or (ii) the security created by any of the Security
Documents or (iii) the ability of the Security Agent to enforce the
Security Documents in accordance with their terms; or
10.1.26 P&I: the Borrower, the Bareboat Charterer of any Ship or any other
person fails or omits to comply with any requirements of the protection
and indemnity association or other insurer with which such Ship is
entered for insurance or insured against protection and indemnity risks
(including oil pollution risks) to the effect that any such cover
(including, without limitation, cover in respect of liability for
Environmental Claims arising in jurisdictions where such Ship operates or
trades) is, or may be liable to cancellation, qualification or exclusion
at any time; or
10.1.27 Termination of Approved Charter or Bareboat Charter: any Approved
Charter of any Ship is cancelled or terminated for any reason whatsoever
without the prior written consent of the Facility Agent (acting on the
instructions of the Majority Banks); or
10.1.28 Termination of Approved Management Agreements: any Approved Management
Agreement is cancelled or rescinded or otherwise terminated in relation
to a Ship for any reason whatsoever without the prior written consent of
the Facility Agent (acting on the instructions of the Majority Banks); or
10.1.29 Change of control:
save with the prior written consent of the Banks (which the Banks shall
have full liberty to withhold):
(a) the Borrower is not, or ceases to be, a wholly owned Subsidiary of
the Parent; or
(b) the Bareboat Charterers are not, or cease to be, wholly owned
Subsidiaries of the Manager; or
10.1.30 Stock exchange listing of Parent: save with the prior consent of
Majority Banks, the issued ordinary share capital of the Parent ceases to
be listed on the Oslo Stock Exchange or NASDAQ; or
10.1.31 Ownership interest in Parent: except with the prior written consent of
all of the Banks, any directly or indirectly wholly owned Subsidiary of
Greenwich or Greenwich itself ceases to be the legal and beneficial
owner, directly or indirectly, of at least twenty five per cent. (25%) of
the ordinary share capital of the Parent unless such percentage is
reduced as a result of dilution by the introduction of new equity; or
10.1.32 Termination Notice: a Lessor (or any person on behalf of the Lessor)
serves a Termination Notice (as such term is defined in any Lease
Agreement) on the Borrower (in its capacity as lessee under the Lease
Agreements).
10.2 Acceleration
The Facility Agent, if so requested by the Majority Banks, shall without
prejudice to any other rights of the Banks, at any time after the
happening of an Event of Default which is then continuing by notice to
the Borrower declare that:
10.2.1 the obligation of each Bank to make its Commitment available shall be
terminated, whereupon the Total Commitments shall be reduced to zero
forthwith; and/or
10.2.2 the Loan and all interest and commitment commission accrued and all other
sums payable under the Security Documents have become due and payable,
whereupon the same shall, immediately or in accordance with the terms of
such notice, become due and payable.
10.3 Demand basis
If, pursuant to clause 10.2.2 the Facility Agent declares the Loan to be
due and payable on demand, the Facility Agent may (and, if so instructed
by the Majority Banks, shall) by written notice to the Borrower (a) call
for repayment of the Loan on such date as may be specified whereupon the
Loan shall become due and payable on the date so specified together with
all interest and any commitment commission accrued and all other sums
payable under this Agreement or (b) withdraw such declaration with effect
from the date specified in such notice.
11 Indemnities
11.1 Miscellaneous indemnities
The Borrower shall on demand indemnify each Creditor, without prejudice
to any of their other rights under any of the Security Documents, against
any loss or expense which such Creditor shall certify as sustained or
incurred by it as a consequence of:
11.1.1 any default in payment by the Borrower of any sum under any of the
Security Documents when due;
11.1.2 the occurrence of any Event of Default;
11.1.3 receiving or recovering all or any part of a sum unpaid otherwise than on
the due date for the payment of interest in respect thereof;
11.1.4 any prepayment of the Loan or part thereof being made under clauses 4.2,
4.3, 4.4.1, 4.7 or 12.1, or any other repayment or prepayment of the Loan
or part thereof being made otherwise than on a Rollover Date being repair
or prepaid; or
11.1.5 the Loan or any part thereof not being made for any reason (excluding any
default by the relevant Creditor) on the date specified in the Drawdown
Notice once given
including, in any such case, but not limited to, any loss or expense
sustained or incurred by any Creditor in maintaining or funding its
Contribution or any part thereof or in liquidating or re-employing
deposits from third parties acquired or contracted for to fund, effect or
maintain its Contribution or any part thereof (collectively "Breakage
Costs").
11.2 Currency indemnity
If any sum due from the Borrower under any of the Security Documents or
any order or judgment given or made in relation thereto has to be
converted from the currency (the "first currency") in which the same is
payable under the relevant Security Document or under such order or
judgment into another currency (the "second currency") for the purpose of
(a) making or filing a claim or proof against the Borrower, (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 any of the Security
Documents, the Borrower shall indemnify and hold harmless each Creditor
from and against any loss suffered as a result of any difference between
(i) the rate of exchange used for such purpose to convert the sum in
question from the first currency into the second currency and (ii) the
rate or rates of exchange at which the relevant Creditor may in the
ordinary course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in whole or in
part, of any such order, judgment, claim or proof. Any amount due from
the Borrower under this clause 11.2 shall be due as a separate debt and
shall not be affected by judgment being obtained for any other sums due
under or in respect of any of the Security Documents and the term "rate
of exchange" includes any premium and costs of exchange payable in
connection with the purchase of the first currency with the second
currency.
11.3 Environmental indemnity
The Borrower shall indemnify each Creditor on demand and hold each
Creditor harmless from and against all costs, expenses, payments,
charges, losses, demands, liabilities, actions, proceedings (whether
civil or criminal), penalties, fines, damages, judgements, orders,
sanctions or other outgoings of whatever nature ("Losses") which may be
suffered, incurred or paid by, or made or asserted against the relevant
Creditor at any time, whether before or after the repayment in full of
principal and interest under this Agreement, relating to, or arising
directly or indirectly in any manner or for any cause or reason
whatsoever out of an Environmental Claim made or asserted against the
such Creditor if such Environmental Claim would not have been, or been
capable of being, made or asserted against the relevant Creditor if it
had not entered into any of the Security Documents and/or exercised any
of its rights, powers and discretions thereby conferred and/or performed
any of its obligations thereunder and/or been involved in any of the
transactions contemplated by the Security Documents.
12 Unlawfulness and increased costs
12.1 Unlawfulness
If it is or becomes contrary to any law or regulation for any Bank to
maintain its Commitment or to fund its Contribution or contribute to the
Loan, such Bank shall promptly inform the Facility Agent and the Facility
Agent shall notify the Borrower whereupon:
12.1.1 such Bank's Commitment shall be reduced to zero;
12.1.2 the undrawn portion of the Total Commitments shall be reduced by the same
proportion which (immediately prior to its reduction to zero) the
Commitments of the relevant Bank bore to the aggregate of the Total
Commitments (including such Bank's Commitment); and
12.1.3 the Borrower shall be obliged to prepay the Contributions of such Bank
either (i) forthwith or (ii) on a future specified date not being earlier
than the latest date permitted by the relevant law or regulation.
Any prepayment pursuant to this clause 12.1 shall be made together with
all amounts referred to in clause 4.5.
12.2 Increased costs
If the result of any change in, or in the interpretation or application
of, or the introduction of, any law or any regulation, request or
requirement (whether or not having the force of law, but, if not having
the force of law, with which any Bank or, as the case may be, its holding
company habitually complies), including (without limitation) those
relating to Taxation, capital adequacy, liquidity, reserve assets, cash
ratio deposits and special deposits, is to:
12.2.1 subject any Bank to Taxes or change the basis of Taxation of any Bank
with respect to any payment under any of the Security Documents (other
than Taxes or Taxation on the overall net income, profits or gains of
such Bank imposed in the jurisdiction in which its principal or lending
office under this Agreement is located); and/or
12.2.2 increase the cost to, or impose an additional cost on, any Bank or its
holding company in making or keeping its Commitment available or funding
its Contribution or otherwise in maintaining its obligations under this
Agreement; and/or
12.2.3 reduce the amount payable or the effective return to any Bank under any
of the Security Documents; and/or
12.2.4 reduce any Bank's or its holding company's rate of return on its overall
capital by reason of a change in the manner in which it is required to
allocate capital resources to its obligations under any of the Security
Documents; and/or
12.2.5 require any Bank or its holding company to make a payment or forgo a
return on or calculated by reference to any amount received or receivable
by it under any of the Security Documents; and/or
12.2.6 require any Bank or its holding company to incur or sustain a loss
(including a loss of future potential profits) by reason of being obliged
to deduct all or part of the Bank's Commitment or Contribution from its
capital for regulatory purposes,
then and in each such case (subject to clause 12.3) such Bank shall
notify the Borrower in writing of such event promptly upon its becoming
aware of the same; and the Borrower shall on demand, made at any time
whether or not the relevant Bank's Contribution has been repaid, pay to
the Facility Agent for the account of such Bank the amount which such
Bank specifies (in a certificate setting forth the basis of the
computation of such amount but not including any matters which such Bank
or its holding company regards as confidential) is required to compensate
such Bank and/or (as the case may be) its holding company for such
liability to Taxes, cost, reduction, payment, forgone return or loss.
For the purposes of this clause 12.2 "holding company" means the company
or entity (if any) within the consolidated supervision of which the
relevant Bank is included.
12.3 Exception
Nothing in clause 12.2 shall entitle any Bank to compensation for any
such increased costs, reduction, payment or foregoing return to the
extent that the same is the subject of an additional payment under clause
6.7 or is taken into account in calculating the Additional Cost.
12.4 Mitigation
If circumstances arise which would, or would upon the giving of notice,
result in:
12.4.1 the Borrower being required to make an increased payment to a Bank
pursuant to clause 6.7
12.4.2 the reduction of the Commitments of a Bank to zero or the Borrower being
required to prepay any Bank's Contribution pursuant to clause 12.1; or
12.4.3 the Borrower being required to make a payment to a Bank to compensate
such Bank or its holding company for a liability to Taxes, increased or
additional cost, reduction, payment, foregone return or loss pursuant to
12.2.
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower under clauses 6.7 and 12, the Facility Agent
and the relevant Bank shall endeavour to take such reasonable steps
(and/or, in the case of clause 12.2 and where the increased or additional
cost, reduction, payment, foregone return or loss is that of its holding
company, endeavour to procure that its holding company takes such
reasonable steps) as may be open to it (or, as the case may be, its
holding company) to mitigate or remove such circumstances including (in
the case of a Bank) the transfer of its rights and obligations under this
Agreement to another bank or financial institution) unless to do so might
(in the opinion of the relevant Bank) be prejudicial to such Bank (or, as
the case may be, its holding company) or be in conflict with such Bank's
(or, as the case may be, its holding company's) or the Facility Agent's
general banking policies or involve such Bank (or, as the case may be,
its holding company) or the Facility Agent in expense or an increased
administrative burden.
13 Set-off, pro rata payments
13.1 Set-off
Subject to the Proceeds Deeds in the case of the Proceeds Accounts or the
Standby Purchaser Proceeds Account only, the Borrower authorises each
Bank (without prejudice to any of such Bank's rights at law, in equity or
otherwise), at any time when an Event of Default has occurred and is
continuing and without notice to the Borrower:
13.1.1 to apply any credit balance to which the Borrower is then entitled
standing upon any account of the Borrower with any branch of such Bank in
or towards satisfaction of any sum due and payable from the Borrower to
such Bank under any of the Security Documents;
13.1.2 in the name of the Borrower or such Bank to do all such acts and to
execute all such documents as may be necessary or expedient to effect
such application; and 13.1.3 to combine and/or consolidate all or any
accounts in the name of the Borrower with such Bank.
For such purposes, each Bank is authorised to purchase with the moneys
standing to the credit of such account such other currencies as may be
necessary to effect such application. No Bank shall be obliged to
exercise any right given to it by this clause 13.1. Each Bank shall
notify the Facility Agent and the Borrower forthwith upon the exercise or
purported exercise of any right of set-off giving full details in
relation thereto and the Facility Agent shall inform the other Banks.
13.2 Pro rata payments
13.2.1 If at any time any Bank (the "Recovering Bank") receives or recovers any
amount owing to it by the Borrower under this Agreement by direct
payment, set-off or in any manner other than by payment through the
Facility Agent pursuant to clause 6.1 or 6.10 (not being a payment
received from a Transferee Bank or a sub-participant in such Bank's
Contribution or any other payment of an amount due to the Recovering Bank
for its sole account pursuant to clauses 3.1, 3.7, 4.7, 5.2, 6.7, 11.1,
11.2, 11.3, 12.1, 12.2) the Recovering Bank shall, within two (2) Banking
Days of such receipt or recovery (a "Relevant Receipt") notify the
Facility Agent of the amount of the Relevant Receipt. If the Relevant
Receipt exceeds the amount which the Recovering Bank would have received
if the Relevant Receipt had been received by the Facility Agent and
distributed pursuant to clause 6.1 or 6.10 as the case may be) then:
(a) within two (2) Banking Days of demand by the Facility Agent, the
Recovering Bank shall pay to the Facility Agent an amount equal
(or equivalent) to the excess;
(b) the Facility Agent shall treat the excess amount so paid by the
Recovering Bank as if it were a payment made by the Borrower and
shall distribute the same to the Banks (other than the Recovering
Bank) in accordance with clause 6.10; and
(c) as between the Borrower and the Recovering Bank the excess amount
so re-distributed shall be treated as not having been paid but the
obligations of the Borrower to the other Banks shall, to the
extent of the amount so re-distributed to them, be treated as
discharged.
13.2.2 If any part of the Relevant Receipt subsequently has to be wholly or
partly refunded by the Recovering Bank (whether to a liquidator or
otherwise) each Bank to which any part of such Relevant Receipt was so
re-distributed shall on request from the Recovering Bank repay to the
Recovering Bank such Bank's pro rata share of the amount which has to be
refunded by the Recovering Bank.
13.2.3 Each Bank shall on request supply to the Facility Agent such information
as the Facility Agent may from time to time request for the purpose of
this clause 13.2
13.2.4 Notwithstanding the foregoing provisions of this clause 13.2 no
Recovering Bank shall be obliged to share any Relevant Receipt which it
receives or recovers pursuant to legal proceedings taken by it to recover
any sums owing to it under this Agreement with any other party which has
a legal right to, but does not, either join in such proceedings or
commence and diligently pursue separate proceedings to enforce its rights
in the same or another court (unless the proceedings instituted by the
Recovering Bank are instituted by it without prior notice having been
given to such party through the Facility Agent).
13.3 No release
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 13.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 13.2.
13.4 No charge
The foregoing provisions of this clause 13 shall not, and shall not be
construed so as to, constitute a charge by a Bank over all or any part of
a sum received or recovered by it in the circumstances mentioned in
clause 13.2.
14 Accounts
14.1 Undertakings concerning Earnings Accounts
The Borrower undertakes with each of the Creditors that throughout the
Security Period it will procure that:
14.1.1 Payments to Earnings Accounts
unless and until the Security Agent otherwise directs pursuant to the
Three Party Deeds or any other Security Document, the following will be
paid to the Earnings Accounts:
(a) all Earnings of the Ships;
(b) all payments to the Borrower and/or any of the Bareboat Charterers
under any Eligible Swap Contracts;
(c) all moneys payable under the Insurances of any Ships which are
payable to the relevant Bareboat Charterer or its order pursuant
to the Proceeds Deeds and in accordance with the relevant Loss
Payable Clauses and the Three Party Deeds;
(d) all surplus proceeds of any sale or Total Loss (if any) after the
Borrower has made any prepayment required under clause 4.4.1; and
(e) the amount (including interest) of any fixed term deposit account
or contract referred to in clause 14.1.2(c) upon maturity of the
relevant fixed term;
14.1.2 Withdrawals from Earnings Accounts
withdrawals are made from any Earnings Account only for the purpose of:
(a) paying amounts then due under the Security Documents (other than
any prepayment of the Loan pursuant to clauses 4.4 or 4.7 of this
Agreement but, for the avoidance of doubt, withdrawals from
Earnings Accounts may be made for the purpose of making a
prepayment required under clause 12.1);
(b) paying amounts then due in respect of Eligible Swap Liabilities or
the Operating Costs of the Ships;
(c) payment of funds from one Earnings Account to another or (provided
that the relevant account or contract will be subject to a valid
Earnings Account security and notice of assignment thereof has
been given to, and acknowledged by, the Account Bank in accordance
with such Earnings Account Security) their investment in a Dollar
fixed term deposit account or contract placed or made with the
Account Bank on terms that the funds so invested and interest
earned thereon shall be credited to such Earnings Account on
maturity of the relevant fixed term deposit account or contract;
(d) payment of Equity Distributions permitted under clause 8.3.3(a);
(e) discharging other liabilities or meeting any other expenditure
incurred by the Bareboat Charterers which have been demonstrated
to the satisfaction of the Facility Agent to have been reasonably
and properly incurred in the ordinary course of the Bareboat
Charterer's business of owning, chartering and operating its Ship
(which shall not, for the avoidance of doubt, include any capital
expenditure not falling within the definition of Operating Costs
and shall not include any other expenditure in respect of any
liability arising or incurred in breach of this Agreement); or
and that (notwithstanding the foregoing) no withdrawal whatsoever is made
from any Earnings Account if, immediately following such withdrawal, the
Free Available Cash would be less than fifteen million Dollars
($15,000,000);
14.1.3 Security over accounts
if an account is to be designated as an Earnings Account for the purposes
of the Security Documents there is duly delivered to the Security Agent
at or before the time such account is so designated:
(a) a deed of assignment (an "Account Charge") in respect of such
account, duly executed by the relevant account party in such form
as the Security Agent may reasonably require (which shall, so far
as the Security Agent considers the circumstances permit), be
based upon the agreed form of the Earnings Accounts Security or in
such other form as the Security Agent may reasonably require for
the purpose of creating effective security over such account under
any applicable laws;
(b) such notices to, and acknowledgements from, the relevant Account
Bank as may be required by such Account Charge;
(c) in relation to the account holder executing such Account Charge
and such Account Charge itself such documents and evidence in form
and substance satisfactory to the Security Agent of the kind
referred to in paragraphs (a), (b), (c) and (d) of Part 1 of
schedule 4 as the Security Agent may reasonably require and that
such account has been opened; and
(d) such satisfactory legal opinion as the Security Agent may
reasonably require as to the execution, validity and effectiveness
of such Account Charge,
provided that the Security Agent may waive the delivery of the documents
and evidence referred to in paragraphs 14.1.3(a) to (d) above if it
considers that an existing Account Charge constitutes effective and
satisfactory security over such account.
14.2 L/C Deposit Surplus Account
14.2.1 Undertakings regarding L/C Deposit Account
The Borrower acknowledges and agrees that the L/C Deposit Moneys shall be
used for the purpose of discharging the Borrower's obligations under the
Lease Agreements.
14.2.2 L/C Deposit Surpluses
The Borrower acknowledges and agrees that if, at any time, any L/C
Deposit Moneys result in an L/C Deposit Surplus, the Borrower shall
ensure that such L/C Deposit Surplus is either:
(a) retained in the L/C Deposit Account and utilised in and towards
the obligations referred to in clause 14.2.1; or
(b) paid to the relevant L/C Deposit Surplus Account,
provided always that any L/C Deposit Surplus standing to the credit of
the L/C Deposit Account as at the date on which the last instalment of
the Loan is due to be repaid shall be automatically and immediately
transferred to the L/C Deposit Surplus Account provided further that any
such moneys are not so transferred for any reason whatsoever they shall
be held on trust by the Borrower for the benefit of the Security Agent.
14.2.3 Withdrawals from the L/C Deposit Surplus Account
(a) Moneys standing to the credit of any L/C Deposit Surplus Account
shall be subject to the security described in clause 14.1.3.
(b) The Borrower shall only be entitled to withdraw moneys from an L/C
Deposit Surplus Account:
(i) for the purposes of re-crediting the L/C Deposit Account (for
which purpose the provisions of clause 8.3.3(a) shall not apply);
or
(ii) for any other purpose, with the prior written approval of all
Banks, such approval not to be unreasonably withheld or delayed.
15 Transfer and lending office
15.1 Benefit and burden
This Agreement shall be binding upon, and enure for the benefit of, each
of the Creditors and the Borrower and their respective successors.
15.2 No assignment by Borrower
The Borrower may not assign or transfer any of its rights or obligations
under any of the Security Documents.
15.3 Transfers
15.3.1 Any Bank (the "Transferor Bank") may at any time, cause all or any part
of its rights, benefits and/or obligations under this Agreement and the
Security Documents to be transferred to its Subsidiaries, affiliates or
associates or to a federal reserve bank, central bank or other monetary
or regulatory authority having jurisdiction over such Banks without the
consent of the Borrower or so long as no Default is then continuing, with
the consent of the Borrower (such consent not to be unreasonably withheld
(and for the purposes of this clause 15.3, it shall be deemed
unreasonable for the Borrower to withhold such consent on the grounds
that any proposed transfer by a Bank of part of its rights, benefits
and/or obligations would result in the number of Banks being increased
if, after such transfer, there would be no more than fifteen (15)
Banks)), to any other bank or financial institution (a "Transferee Bank")
by delivering to the Facility Agent a Transfer Certificate duly completed
and duly executed by the Transferor Bank and the Transferee Bank.
15.3.2 Any transfer by a Bank shall be offered and effected in compliance with
all applicable laws and regulations. If the Borrower fails to respond to
a request for such consent within ten (10) days of such request being
made, the Borrower shall be deemed to have given such consent. No such
transfer is binding on, or effective in relation to, the Borrower, the
Facility Agent, or the Security Agent unless it is effected or evidenced
by a Transfer Certificate which complies with the provisions of this
clause and is signed by or on behalf of the Transferor Bank, the
Transferee Bank and the Facility Agent (on behalf of itself, the
Borrower, the Security Agent and the other Banks). Upon signature of any
such Transfer Certificate by the Facility Agent, which signature shall be
effected as promptly as is practicable after such Transfer Certificate
has been delivered to the Facility Agent, and subject to the terms of
such Transfer Certificate, such Transfer Certificate shall have effect as
set out below.
15.3.3 The following further provisions shall have effect in relation to any
Transfer Certificate:
(a) a Transfer Certificate may be in respect of a Bank's rights in
respect of all or part, of its Commitment and shall be in respect
of the same proportion of its Contribution;
(b) a Transfer Certificate shall only be in respect of rights and
obligations of the Transferor Bank in its capacity as a Bank and
shall not transfer its rights and obligations as Facility Agent or
Security Agent or in any other capacity, as the case may be and
such other rights and obligations may only be transferred in
accordance with any applicable provisions of the Agency Agreement;
(c) a Transfer Certificate shall take effect in accordance with
English law as follows:
(i) to the extent specified in the Transfer Certificate, the
Transferor Bank's payment rights and all its other rights
(other than those referred to in paragraph (b) above) under
this Agreement are assigned to the Transferee Bank
absolutely, free of any defects in the Transferor Bank's
title and of any rights or equities which the Borrower had
against the Transferor Bank;
(ii) the Transferor Bank's Commitment is discharged to the
extent specified in the Transfer Certificate;
(iii) the Transferee Bank becomes a Bank with a Contribution and
an undrawn Commitment of the amount specified in the
Transfer Certificate;
(iv) the Transferee Bank becomes bound by all the provisions of
this Agreement and the Security Documents which are
applicable to the Banks generally, including those about
pro-rata sharing and the exclusion of liability on the part
of, and the indemnification of, the Facility Agent and the
Security Agent in accordance with the provisions of the
Agency Agreement and to the extent that the Transferee Bank
becomes bound by those provisions, the Transferor Bank
ceases to be bound by them;
(v) the Contributions which the Transferee Bank makes after the
Transfer Certificate comes into effect rank in point of
priority and security in the same way as it would have
ranked had it been made by the Transferor Bank, assuming
that any defects in the Transferor Bank's title and any
rights or equities of any Security Party against the
Transferor Bank had not existed; and
(vi) the Transferee Bank becomes entitled to all the rights
under this Agreement which are applicable to the Banks
generally, including but not limited to those relating to
the Majority Banks and those under clauses 3.7, 5 and 12,
and to the extent that the Transferee Bank becomes entitled
to such rights, the Transferor Bank ceases to be entitled
to them;
(d) the rights and equities of the Borrower or of any other Security
Party referred to above include, but are not limited to, any right
of set off and any other kind of cross-claim; and
(e) the Borrower, the Security Agent and the Banks hereby irrevocably
authorise and instruct the Facility Agent to sign any such
Transfer Certificate on its behalf (and, in the case of the
Security Agent, on behalf of any Security Party which has in the
relevant Security Document given a corresponding authorisation and
instruction to the Security Agent) and undertake not to withdraw,
revoke or qualify such authority or instruction at any time.
Promptly upon its signature of any Transfer Certificate, the
Facility Agent shall notify the Borrower, the Security Agent the
Transferor Bank, the Transferee Bank and the other Banks.
15.4 Reliance on Transfer Certificate
15.4.1 The Facility Agent shall be entitled to rely on any Transfer Certificate
believed by it to be genuine and correct and to have been presented or
signed by the persons by whom it purports to have been presented or
signed, and shall not be liable to any of the parties to this Agreement
and the Security Documents for the consequences of such reliance.
15.4.2 The Facility Agent shall at all times during the continuation of this
Agreement maintain a register in which it shall record the name,
Commitments, or, as the case may be, Contributions and administrative
details (including the lending office) from time to time of each Bank
holding Transfer Certificates and the date at which the transfer referred
to in such Transfer Certificate held by each Bank was transferred to such
Bank, and the Facility Agent shall make the said register available for
inspection by any Bank, the Security Agent and the Borrower during normal
banking hours upon receipt by the Facility Agent of reasonable prior
notice requesting the Facility Agent to do so.
15.4.3 The entries on the said register shall, in the absence of manifest error,
be prima facie evidence in determining the identities of the Commitments
or, as the case may be, the Contributions and the Transfer Certificates
held by the Banks from time to time and the principal amounts of such
Transfer Certificates and may be relied upon by the Facility Agent, the
Security Agent and the other Security Parties for all purposes in
connection with this Agreement and the Security Documents.
15.5 Transfer fees and expenses
If any Bank causes the transfer of all or any part of its rights,
benefits and/or obligations under the Security Documents, it shall pay to
the Facility Agent for its own account a registration fee of one thousand
Dollars ($1,000) for each transfer, and shall also pay to the Facility
Agent on demand all out of pocket costs, fees and expenses (including,
but not limited to, legal fees and expenses), and all value added tax
thereon, certified by the Facility Agent as having been reasonably and
properly incurred by it in connection with such transfer.
15.6 Documenting transfers
If any Bank transfers all or any part of its rights, benefits and/or
obligations as provided in clause 15.3 the Borrower undertakes,
immediately on being requested to do so by the Facility Agent and at the
cost of the Transferor Bank, to enter into, and procure that the other
Security Parties shall enter into, such documents as may be necessary or
desirable to transfer to the Transferee Bank all or the relevant part of
such Bank's interest in the Security Documents and all relevant
references in this Agreement to such Bank shall thereafter be construed
as a reference to the Bank and/or its Transferee Bank (as the case may
be) to the extent of their respective interests.
15.7 Sub-participation
A Bank may sub-participate all or any part of its rights and/or
obligations under the Security Documents without the consent of, or
notice to, the Borrower.
15.8 Lending office
Each Bank shall lend through its office at the address specified in
Schedule 1 or, as the case may be, in any relevant Transfer Certificate
or through any other office of such Bank selected from time to time by it
through which such Bank wishes to lend for the purposes of this
Agreement. If the office through which such Bank is lending is changed
pursuant to this clause 15.8, such Bank shall notify the Facility Agent
promptly of such change and the Facility Agent shall notify the Borrower.
15.9 Disclosure of information
Any Bank may (with the prior written consent of the Borrower such consent
not to be unreasonable withheld or delayed) disclose to a prospective
assignee, substitute or transferee or to any other person who may propose
entering into contractual relations with such Bank in relation to this
Agreement such information about the Borrower as such Bank shall consider
appropriate.
16 Facility Agent, Security Agent and Reference Banks
16.1 Appointment of the Facility Agent and the Security Agent
The terms and basis on which the Facility Agent and the Security Agent
have been appointed by the Banks as facility agent and by the Banks as
security agent and trustee respectively are set out in the Agency
Agreement including, among other things, the manner in which any decision
to exercise any right, powers, discretion or authority or to carry out
any duty are to be made between the Banks, the Facility Agent and the
Security Agent.
16.2 Reference Banks
If (a) the whole of the Contributions (if any) of any Reference Bank is
prepaid or (b) the Commitments (if any) of any Reference Bank are reduced
to zero in accordance with clauses 4.7 or 12 or (c) a Reference Bank
transfers the whole of its rights and obligations (if any) as a Bank
under this Agreement or (d), where applicable, any Reference Bank ceases
to provide quotations to the Facility Agent for the purposes of
determining LIBOR, the Facility Agent may, acting on the instructions of
the Majority Banks, terminate the appointment of such Reference Bank and
appoint another Bank to replace such Reference Bank.
17 Notices and other matters
17.1 Notices
17.1.1 Every notice, request, demand or other communication under this Agreement
or (unless otherwise provided therein) under any of the other Security
Documents shall:
(a) be in writing delivered personally or by first-class prepaid
letter (airmail if available) or facsimile transmission or other
means of telecommunication in permanent written form;
(b) be deemed to have been received, subject as otherwise provided in
the relevant Security Document, in the case of a letter, when
delivered personally or seven (7) days after it has been put in to
the post and, in the case of a facsimile transmission or other
means of telecommunication in permanent written form, at the time
of despatch (provided that if the date of despatch is not a
business day in the country of the addressee or if the time of
despatch is after the close of business in the country of the
addressee it shall be deemed to have been received at the opening
of business on the next such business day); and
(c) be sent:
(i) to the Borrower at:
Golar Gas Holding Company, Inc.
c/o Golar Management (UK) Ltd.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax no: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Chief Financial Officer
(ii) to the Facility Agent at:
Nordea Bank Norge ASA
P.O. Box 1166, Sentrum
0107 Oslo
Norway
Fax no: ▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: Shipping Dept.
(iii) to the Security Agent at:
Nordea Bank Norge ASA
P.O. Box 1166, Sentrum
0107 Oslo
Norway
Fax no: ▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: Shipping Dept.
(iv) to each Bank at its address, telex or fax number specified
in schedule 1 or in any relevant Transfer Certificate,
or to such other address and/or numbers as is notified by one party to
the other party under this Agreement.
17.2 No implied waivers, remedies cumulative
No failure or delay on the part of any Creditor to exercise any power,
right or remedy under any of the Security Documents shall operate as a
waiver thereof, nor shall any single or partial exercise by any Creditor
of any power, right or remedy preclude any other or further exercise
thereof or the exercise of any other power, right or remedy. The remedies
provided in the Security Documents are cumulative and are not exclusive
of any remedies provided by law.
17.3 Further assurance
The Borrower undertakes that the Security Documents shall both at the
date of execution and delivery thereof and so long as any moneys are
owing under any of the Security Documents, be valid and binding
obligations of the respective parties thereto and the rights of the
Creditors thereunder enforceable in accordance with their respective
terms and that they will, at their expense, execute, sign, perfect and
do, and will procure the execution, signing, perfecting and doing by each
of the other Security Parties of, any and every such further assurance,
document, act or thing as in the reasonable opinion of the Facility Agent
may be necessary or desirable for perfecting the security contemplated or
constituted by the Security Documents.
17.4 Conflicts
In the event of any conflict between this Agreement and any of the other
Security Documents, the provisions of this Agreement shall prevail.
17.5 English language
All certificates, instruments and other documents to be delivered under
or supplied in connection with any of the Security Documents shall be in
the English language or shall be accompanied by a certified English
translation upon which the Facility Agent shall be entitled to rely.
17.6 Contracts (Rights of Third Parties) Act 1999
No term of this Agreement is enforceable under the Contracts (Rights of
Third Parties) Act 1999 by a person who is not a party to this Agreement.
18 Governing law and jurisdiction
18.1 Law
This Agreement is governed by and shall be construed in accordance with
English law.
18.2 Submission to jurisdiction
The Borrower agrees, for the benefit of the Creditors, that any legal
action or proceedings arising out of or in connection with this Agreement
against the Borrower or any of its assets may be brought in the English
courts. The Borrower irrevocably and unconditionally submits to the
jurisdiction of such courts and irrevocably designates, appoints and
empowers Golar Management (UK) Ltd. at present of 30 ▇▇▇▇▇ Wall, London
E14 9TP to receive for it and on its behalf, service of process issued
out of the English courts in such legal action or proceedings. The
submission to such jurisdiction shall not (and shall not be construed so
as to) limit the right of any Creditor to take proceedings against the
Borrower in the courts of any other competent jurisdiction nor shall the
taking of proceedings in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction, whether concurrently or
not. The parties further agree that only the courts of England and not
those of any other State shall have jurisdiction to determine any claim
which the Borrower may have against any Creditor arising out of or in
connection with this Agreement.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
Schedule 1
The Banks and their Commitments
Name Address and fax number Commitment
$
Nordea Bank Norge ASA P.O. Box 1166, Sentrum 75,000,000
0107 Oslo
Norway
Fax: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: International Loan
Administration
DnB NOR Bank ASA Stranden 21 75,000,000
N-0021 Oslo
Norway
Fax: (▇▇) ▇▇ ▇▇ ▇▇ ▇▇
Attention: Loan Administration
Citibank, N.A. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 75,000,000
Canary Wharf
London
E14 5LB
Fax: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Fortis Bank (Nederland) N.V. Credit Administration 75,000,000
Fortis Bank (Nederland) N.V.,
Oslo Branch
Haakon VIIs ▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
Telephone: (▇▇) ▇▇ ▇▇ ▇▇ ▇▇
Fax: (▇▇) ▇▇ ▇▇ ▇▇ ▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Loan Administration Department
Fortis Bank (Nederland) ▇.▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇) ▇▇ ▇▇▇ ▇▇ ▇▇/
62 54
Fax: (▇▇) ▇▇ ▇▇▇ ▇▇ ▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇
▇▇▇ ▇▇▇▇/ ▇▇▇ ▇▇▇▇▇▇▇▇/ ▇▇▇ ▇▇▇▇
Total: 300,000,000
Schedule 2
The Ships
Part 1
Details of the Ships
(a) (b) (c) (d) (e) (f)
Name Lessor Bareboat Official No. and Classification Classification
Charterer Port of Registry Society
GOLAR Sovereign Spirit Golar Spirit UK 905529 +1A1 Tanker DnV
SPIRIT Limited Ltd. London for Liquified
or an official Gas EO SBM
number and Port
Registered office Registered office of Registry of
PO Box HM 666 30 ▇▇▇▇▇ Wall the ▇▇▇▇▇▇▇▇
Clarendon House London Islands
▇▇▇▇▇▇▇▇ HMCX E14 9TP
Bermuda
HILLI Sovereign ▇▇▇▇▇ ▇▇▇▇▇ Hilli UK 905531 +1A1 Tanker DnV
Limited Ltd. London for Liquified
Gas EO SBM
Registered office Registered office
PO Box HM ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
GIMI Sovereign ▇▇▇▇ ▇▇▇▇▇ Gimi UK 905533 +1A1 Tanker DnV
Limited Ltd. London for Liquified
Gas EO SBM
Registered office Registered office
PO Box HM ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Sovereign ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ UK 905532 +1A1 Tanker DnV
Limited Ltd. London for Liquified
Gas EO SBM
Registered office Registered office
PO Box HM ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
GOLAR Sovereign Freeze Golar Freeze UK 905530 +1A1 Tanker DnV
FREEZE Limited Ltd. London for Liquified
Gas EO SBM
Registered office Registered office
PO Box HM ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
In this schedule "DnV" means Det Norske Veritas.
Part 2
Details of Approved Charterers, Charter Guarantees
and Management Agreements as at the date of this Agreement
GOLAR SPIRIT
Approved Charter
Time charter dated 9 September 1983 between Pertamina and Golar Spirit UK Ltd.
(as amended by Addendum No. 1 dated 2 July 1986, Addendum No. 2 dated 20
February 1990 and Addendum No. 3 dated 1 February 2003 and novated and amended
pursuant to a consent and novation agreement dated 4 April 2003 expiry on or
about 1 December 2006 subject to charterer's option to extend.
Charter Guarantee
None.
Approved Management Agreement
Management Agreement dated 8 April 2003 between Golar Spirit UK Ltd. and Golar
Management (UK) Limited.
HILLI
Approved Charter
Long term charter dated 25 October 2001 as amended and restated by Addendum No 1
dated 31 January 2003 and novated and amended pursuant to a novation agreement
dated 4 April 2003 entered into between ▇▇▇▇▇ ▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇ UK Ltd.
and Methane Services Limited ("MSL") such charter to expire during 2011/2012,
subject to charterer's option to extend.
Charter Guarantee
Guarantee dated 4 April 2003 from BG International Limited in favour of ▇▇▇▇▇
▇▇▇▇▇ UK Ltd.
Approved Management Agreement
Management Agreement dated 8 April 2003 between ▇▇▇▇▇ ▇▇▇▇▇ UK Ltd. and Golar
Management (UK) Limited.
GIMI
Approved Charter
Long term time charter dated 25 October 2001 as amended and restated by Addendum
No. 1 dated 5 February 2003 and amended and novated pursuant to a novation
agreement dated 4 April 2003 between ▇▇▇▇▇ ▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇ UK Ltd. and MSL
expiring during 2010 subject to charterer's option to extend.
Charter Guarantee
Guarantee dated 4 April 2003 from BG International Limited in favour of ▇▇▇▇▇
▇▇▇▇ UK Ltd.
Approved Management Agreement
Management Agreement dated 8 April 2003 between ▇▇▇▇▇ ▇▇▇▇ UK Ltd. and Golar
Management (UK) Limited.
▇▇▇▇▇▇▇
Approved Charter
Long term time charter dated 25 October 2001 as amended and restated by Addendum
No. 1 dated 31 January 2003 and amended and novated pursuant to a novation
agreement dated 4 April 2003 between ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ UK Ltd.
and MSL expiring during 2009 subject to charterer's option to extend.
Charter Guarantee
Guarantee dated 4 April 2003 from BG International Limited in favour of ▇▇▇▇▇
▇▇▇▇▇▇▇ UK Ltd..
Approved Management Agreement
Management Agreement dated 8 April 2003 between ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. and Golar
Management (UK) Limited.
GOLAR FREEZE
Approved Charter
Time charter dated 25 September 2002 (the "5 Year Freeze Charter") as amended by
Addendum No. 1 dated 2 February 2003 and novated and amended pursuant to a
novation agreement dated 4 April 2003 between Golar Freeze Inc., Golar Freeze UK
Ltd. and MSL entered into pursuant to the Omnibus Agreement, such charter to
expire 5 years from the end of the Existing Freeze Charter (unless the Existing
Freeze Charter is extended pursuant to clause 4(b)(ii) thereof until 31 December
2009 in which event the 5 Year Freeze Charter shall become null and void).
Charter Guarantee
(a) Guarantee dated 4 April 2003 from BG International Limited and in favour
of Golar Freeze UK Ltd. (in respect of the Existing Freeze Charter).
(b) Guarantee dated 4 April 2003 from BG International Limited in favour of
Golar Freeze UK Ltd. (in respect of the 5 Year Freeze Charter).
Approved Management Agreement
Management Agreement dated 8 April 2003 between Golar Freeze UK Ltd. and Golar
Management (UK) Limited.
In this schedule:
"Omnibus Agreement" means the omnibus agreement dated 25 October 2001 between
(among others) all the parties to the Master Agreement, BG International Limited
and Golar LNG Limited.
Schedule 3
Form of Drawdown Notice
To: [Name and address of Facility Agent]
Attention:
[_] 2005
$300,000,000
Loan Agreement dated [_] 2005
We refer to the above Loan Agreement and hereby give you notice that we wish to
draw the Loan (in the amount of $300,000,000) on [_] 2005 and select an Interest
Period in respect thereof of [_] months. The funds should be credited to [name
and number of account] with [New York City].
We confirm that:
(a) no Default has occurred and is continuing or will result from our
borrowing the Loan;
(b) the representations and warranties contained in clauses 7.1 and
7.2 of the Loan Agreement are true and correct at the date hereof
as if made with respect to the facts and circumstances existing at
such date; and
(c) the borrowing to be effected by the drawdown of the Loan will be
within our corporate powers, has been validly authorised by
appropriate corporate action and will not cause any limit on our
borrowings (whether imposed by statute, regulation, agreement or
otherwise) to be exceeded.
Words and expressions defined in the Loan Agreement shall have the same meanings
where used herein.
For and on behalf of
................................
Golar Gas Holding Company, Inc.
Schedule 4
Documents and evidence required as conditions precedent (referred to in
clause 9)
Part 1
(General)
1 Corporate authorisation
in relation to each Security Party:
(a) Constitutional documents
copies certified by an officer of each Security Party, as a true,
complete and up to date copies, of all documents which contain or
establish or relate to the constitution of that party or an
officer's certificate confirming that there have been no changes
or amendments to the constitutional documents certified copies of
which were previously delivered to the Facility Agent pursuant to
the Previous Facility;
(b) Resolutions
copies of resolutions of each of its board of directors and (if
relevant) its stockholders approving such of the Transaction
Documents and Security Documents to which it is or is to be a
party and the terms and conditions hereof and thereof and
authorising the signature, delivery and performance of each such
party's obligations thereunder, certified by an officer of such
Security Party:
(i) being true and correct;
(ii) being duly passed at meetings of the directors of such
Security Party and (if applicable) of the stockholders of
such Security Party each duly convened and held;
(iii) not having been amended, modified or revoked; and
(iv) being in full force and effect
together with originals or certified copies of any powers of
attorney issued by any party pursuant to such resolutions; and
(c) Certificate of incumbency
a list of directors and officers of each Security Party specifying
the names and positions of such persons, certified by an officer
of such Security Party to be true, complete and up to date;
2 Consents
a certificate from an officer of each Security Party confirming that all
consents, authorisations, licences or approvals that are necessary for
such Security Party to authorise, or are required by each Security Party
or any other party (other than the Creditors) in connection with, the
execution, delivery, and performance of the Transaction Documents and
Security Documents to which they are or will be a party have been
obtained or will be obtained on or prior to the Drawdown Date for each
Ship;
3 Process agent
an original or certified true copy of a letter from each Security Party's
agent for receipt of service of proceedings accepting its appointment
under this Agreement and the other Transaction Documents and Security
Documents as the relevant Security Party's process agent.
Part 2
(Drawdown Date)
1 Previous Facility
Repayment of the Previous Facility in full including any interest accrued
up to and including the Drawdown Date.
2 Lessor and Ship conditions
evidence in respect of each Ship that:
(a) Registration and encumbrances
the Ship is registered in the name of the relevant Lessor in the
Registry and that such Ship and its Earnings, Insurances and the
Requisition Compensation are free from Encumbrances other than
Permitted Encumbrances;
(b) Classification
the Ship maintains its Classification free of all overdue
requirements and recommendations of its Classification Society;
(c) Insurance
the Ship is insured in accordance with the provisions of the
Security Documents and all requirements of the Security Documents
in respect of such insurances have been complied with; and
(d) Approved Charters
the Ship remains in service under its Approved Charter (such
evidence to be given in the form of certified copies of each
Approved Charter).
3 Security Documents
Each of the following documents duly executed by the relevant Security
Party together with the letters of assignment and acknowledgements
thereof and other documents referred to therein duly executed by the
relevant Security Party:
(a) the Security Assignments;
(b) the Three Party Deeds;
(c) the Subsidiary Guarantees;
(d) the Bareboat Charterers' Guarantees;
(e) the Parent Guarantee;
(f) the Lessor Parent Support Letter;
(g) the Proceeds Deeds;
(h) the Subsidiary Pledges;
(i) the Earnings Account Security;
(j) the Standby Purchaser Share Security;
(k) the Notices of Assignment and related acknowledgements; and
(l) such other documents as the Facility Agent may reasonably require.
4 Mortgage registration
Evidence that the Mortgage over each Ship has been registered against the
relevant Ship through the Registry.
5 Leasing arrangements
Evidence satisfactory to the Facility Agent that the persons who have
executed on behalf of the Lessors, the Lessor Parent and the Proceeds
Account Bank the Transaction Documents and/or Security Documents to which
they are respectively a party were properly authorised to do so.
6 Legal opinions
Such legal opinions or supplemental legal opinions in relation to the
laws of England, Liberia and Bermuda (or confirmation that such legal
opinions will be issued in an agreed form in due course) and any other
legal opinions as the Facility Agent shall in its reasonable discretion
deem appropriate.
7 Insurance notices
A notice of assignment of insurance in respect of each Ship in six (6)
originals signed by each of the Lessors, the Borrower, the Bareboat
Charterers and the Approved Manager.
8 Other matters
Such other documents or evidence as the Facility Agent may reasonably
require.
Schedule 5
Repayment Schedule
No. Repayment Date Installment ($)
1 14 July 2005 10,000,000
2 14 October 2005 10,000,000
3 16 January 2006 10,000,000
4 18 April 2006 10,000,000
5 14 July 2006 10,000,000
6 16 October 2006 10,000,000
7 15 January 2007 10,000,000
8 16 April 2007 10,000,000
9 16 July 2007 9,375,000
10 15 October 2007 9,375,000
11 14 January 2008 9,375,000
12 14 April 2008 9,375,000
13 14 July 2008 9,375,000
14 14 October 2008 9,375,000
15 14 January 2009 9,375,000
16 14 April 2009 9,375,000
17 14 July 2009 9,375,000
18 14 October 2009 9,375,000
19 14 January 2010 9,375,000
20 14 April 2010 9,375,000
21 14 July 2010 9,375,000
22 14 October 2010 9,375,000
23 14 January 2011 9,375,000
24 14 April 2011 79,375,000
Schedule 6
Form of Transfer Certificate
(referred to in clause 16.3)
Transfer Certificate
Banks are advised not to employ Transfer Certificates or otherwise to assign or
transfer interests in the Loan Agreement without further ensuring that the
transaction complies with all applicable laws and regulations, including the
Financial Services Act 1986 and regulations made thereunder and similar statutes
which may be in force in other jurisdictions
To: [_], as agent on its own behalf and for and on behalf of the Borrower,
the Security Agent and the Banks defined in the Loan Agreement referred
to below.
_200_
Attention: [_]
This certificate ("Transfer Certificate") relates to a Loan Agreement dated o
2005 (as amended from time to time the "Loan Agreement") and made between (1)
Golar Gas Holding Company, Inc. (the "Borrower"), (2) Nordea Bank Norge ASA, DnB
NOR Bank ASA, Citigroup Global Market Limited and Fortis Bank (Nederland) N.V.
(3), the banks and financial institutions defined therein as banks (the
"Banks"), (4) Nordea Bank Norge ASA as Facility Agent, (5) Nordea Bank Norge ASA
as Security Agent for a loan facility of up to three hundred million Dollars
($300,000,000). Terms defined in the Loan Agreement shall, unless otherwise
defined herein, have the same meanings herein as therein.
In this Certificate:
the "Transferor" means [full name] of [lending office]; and
the "Transferee" means [full name] of [lending office].
1 The Transferor with full title guarantee assigns to the Transferee
absolutely all rights and interests (present, future or contingent) which
the Transferor has as a Bank under or by virtue of the Loan Agreement and
all the Security Documents in relation to [ ] per centum ([ ]%) of the
Contribution of the Transferor (or its predecessors in title) which are
set out below:
Date of Contribution Amount
[_] $ [_]
2 By virtue of this Transfer Certificate and clause 15 of the Loan
Agreement, the Transferor is discharged [entirely from its undrawn
Commitment which amounts to $[_]] [from [_] per centum ([_]%) of its
undrawn Commitment, which percentage represents $[_]].]
3 The Transferee hereby requests the Borrower, the Facility Agent, the
Security Agent and the Banks to accept the executed copies of this
Transfer Certificate as being delivered pursuant to and for the purposes
of clause 15.3 of the Loan Agreement so as to take effect in accordance
with the terms thereof on [date of transfer].
4 The Transferee:
(a) confirms that it has received a copy of the Loan Agreement and the
Security Documents together with such other documents and
information as it has required in connection with the transaction
contemplated thereby;
(b) confirms that it has not relied and will not hereafter rely on the
Transferor, the Facility Agent or the Security Agent to check or
enquire on its behalf into the legality, validity, effectiveness,
adequacy, accuracy or completeness of the Loan Agreement, any of
the Security Documents or any such documents or information;
(c) agrees that it has not relied and will not rely on the Transferor,
the Facility Agent, the Security Agent or the Banks to assess or
keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the
Borrower or any other Security Party (save as otherwise expressly
provided therein);
(d) warrants that it has power and authority to become a party to the
Loan Agreement and has taken all necessary action to authorise
execution of this Transfer Certificate and to obtain all necessary
approvals and consents to the assumption of its obligations under
the Loan Agreement and the Security Documents;
(e) acknowledges and accepts the provisions of paragraph 4(iii) above;
and
(f) if not already a Bank, appoints the Facility Agent to act as its
agent and the Security Agent to act as its trustee as provided in
the Agreement and the Security Documents and agrees to be bound by
the terms of the Agency Agreement.
5 The Transferor:
(a) warrants to the Transferee that it has full power to enter into
this Transfer Certificate and has taken all corporate action
necessary to authorise it to do so;
(b) warrants to the Transferee that this Transfer Certificate is
binding on the Transferor under the laws of England, [the country
in which the Transferor is incorporated and the country in which
its lending office is located]; and
(c) agrees that it will, at its own expense, execute any documents
which the Transferee reasonably requests for perfecting in any
relevant jurisdiction the Transferee's title under this Transfer
Certificate or for a similar purpose.
6 The Transferee hereby undertakes with the Transferor and each of the
other parties to the Loan Agreement and the other Security Documents that
it will perform in accordance with its terms all those obligations which
by the terms of the Loan Agreement and the other Security Documents will
be assumed by it after delivery of the executed copies of this Transfer
Certificate to the Facility Agent and satisfaction of the conditions (if
any) subject to which this Transfer Certificate is expressed to take
effect.
7 By execution of this Transfer Certificate on their behalf by the Facility
Agent and in reliance upon the representations and warranties of the
Transferee, the Borrower, the Facility Agent, the Security Agent, the
Book Runner and the Banks accept the Transferee as a party to the Loan
Agreement and the Security Documents with respect to all those rights
and/or obligations which by the terms of the Loan Agreement and the
Security Documents will be assumed by the Transferee (including those
about pro-rata sharing and the exclusion of liability on the part of, and
the indemnification of, the Facility Agent and the Security Agent as
provided by the Agency Agreement and the Loan Agreement) after delivery
of the executed copies of this Transfer Certificate to the Facility Agent
and satisfaction of the conditions (if any) subject to which this
Transfer Certificate is expressed to take effect.
8 None of the Transferor, the Facility Agent, the Security Agent, the Book
Runner or the Banks:
(a) makes any representation or warranty nor assumes any
responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the Agreement or any
of the Security Documents or any document relating thereto;
(b) assumes any responsibility for the financial condition of the
Borrower or any other Security Party or any party to any such
other document or for the performance and observance by the
Borrower or any other Security Party or any party to any such
other document (save as otherwise expressly provided therein) and
any and all such conditions and warranties, whether express or
implied by law or otherwise, are hereby excluded (except as
aforesaid).
9 The Transferor and the Transferee each undertake that they will on demand
fully indemnify the Facility Agent and the Security Agent in respect of
any claim, proceeding, liability or expense which relates to or results
from this Transfer Certificate or any matter concerned with or arising
out of it unless caused by the Facility Agent's or Security Agent's gross
negligence or wilful misconduct, as the case may be.
10 The agreements and undertakings of the Transferee in this Transfer
Certificate are given to and for the benefit of and made with each of the
other parties to the Agreement and the Security Documents.
11 This Transfer Certificate shall be governed by, and construed in
accordance with, English law.
Transferor Transferee
By: By:
Dated: Dated:
Agent
Agreed for and on behalf of itself as Facility Agent,
the Borrower, the Security Agent,
the Banks and all other parties to the Agency Agreement
NORDEA BANK NORGE ASA
By:
Dated:
Note: The execution of this Transfer Certificate alone may not transfer
a proportionate share of the Transferor's interest in the security
constituted by the Security Documents in the Transferor's or
Transferee's jurisdiction. It is the responsibility of each
individual Bank to ascertain whether any other documents are
required to perfect a transfer of such a share in the Transferor's
interest in such security in any such jurisdiction and, if so, to
seek appropriate advice and arrange for execution of the same.
The Schedule
Outstanding Contribution $ [_]
Undrawn Commitment ($) $ [_]
Portion Transferred [_]%
Administrative Details of Transferee
Name of Transferee:
Lending Office:
Contact Person
(Loan Administration Department):
Telephone:
Fax:
Contact Person
(Credit Administration Department):
Telephone:
Fax:
Account for payments:
Schedule 7
Calculation of Additional Cost
1 The Additional Cost is an addition to the interest rate to compensate the
Banks 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 Facility Agent shall calculate, as a percentage rate, a
rate (the "Additional Cost Rate") for each Bank, in accordance with the
paragraphs set out below. The Additional Cost will be calculated by the
Facility Agent as a weighted average of the Banks' Additional Cost Rates
(weighted in proportion to the Commitments of each Bank in the Loan) and
will be expressed as a percentage rate per annum.
3 The Additional Cost Rate for any Bank lending from an office in a
Participating Member State will be the percentage notified by that Bank
to the Facility Agent as the cost of complying with the minimum reserve
requirements of the European Central Bank.
4 The Additional Cost Rate for any Bank lending from an office in the
United Kingdom will be calculated by the Facility Agent as follows:
(a) in relation to an amount in Sterling:
AB + C(B-D) + E x 0.01
---------------------- per cent. per annum.
100 - (A + C)
(b) in relation to an amount in any currency other than Sterling:
E x 0.01
-------- per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Bank 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
Additional Cost) payable for the relevant Interest Period on the
Loan.
C is the percentage (if any) of Eligible Liabilities which that Bank
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 Facility Agent on interest bearing Special Deposits.
E is the rate of charge payable by that Bank to the Financial
Services Authority pursuant to the Fees Regulations (but, for this
purpose, ignoring any minimum fee required pursuant to the Fees
Regulations) and expressed in pounds per (pound)1,000,000 of the
Fee Base of that Bank.
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 Regulations" means the Banking Supervision (Fees)
Regulations 2001 or such other law or regulation as may be in
force from time to time in respect of the payment of fees for
banking supervision;
(c) "Fee Base" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations; and
(d) "Participating Member State" means any member state of the
European Communities that adopts or has adopted the euro as its
lawful currency in accordance with legislation of the European
Union relating to European Monetary Union.
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 Each Bank shall supply any information required by the Facility Agent for
the purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Bank shall supply the following information in
writing on or prior to the date on which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of the
office through which it will perform its obligations under this
Agreement; and
(b) any other information that the Facility Agent may reasonably
require for such purpose.
Each Bank shall promptly notify the Facility Agent in writing of any
change to the information provided by it pursuant to this paragraph.
8 The percentages or rates of charge of each Bank for the purpose of A, C
and E above shall be determined by the Facility Agent based upon the
information supplied to it pursuant to paragraph 7 above and on the
assumption that, unless a Bank notifies the Facility Agent to the
contrary, each Bank's obligations in relation to cash ratio deposits,
Special Deposits and the Fees Regulations are the same as those of a
typical bank from its jurisdiction of incorporation with an office in the
same jurisdiction as the office through which it is performing its
obligations under this Agreement.
9 The Facility Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Bank and shall be entitled to assume that the information
provided by any Bank pursuant to paragraphs 3 and 7 above is true and
correct in all respects.
10 The Facility Agent shall distribute the additional amounts received as a
result of the Additional Cost to the Lenders on the basis of the
Additional Cost Rate for each Bank based on the information provided by
each Bank pursuant to paragraphs 3 and 7 above.
11 Any determination by the Facility Agent pursuant to this schedule in
relation to a formula, the Additional Cost, an Additional Cost Rate or
any amount payable to a Bank shall, in the absence of manifest error, be
prima facie evidence.
12 The Facility Agent may from time to time, after consultation with the
Borrower and the Banks, determine and notify to all the parties to this
Agreement 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 prima facie
evidence.
Schedule 8
Form of officer's certificate (referred to in clause 8.1.5(b)(iv))
Officer's Certificate issued pursuant to a
$300,000,000 Term Loan Agreement dated o 2005 (the "Loan Agreement")
I, [_], the Chief Financial Officer of Golar Gas Holding Company, Inc. (the
"Borrower"), hereby certify that:
1 Attached hereto are the latest [Annual Financial Statements][Quarterly
Financial Statements] for the [o] period ended on [o] (the "Reference
Date") for the Borrower. Such financial statements [were prepared in
accordance with GAAP] [were not prepared in accordance with GAAP and
attached hereto is a statement of the full details of the adjustments
required to such statements to reflect GAAP as necessary to calculate the
amounts referred to in paragraph 2 below].
2 Attached hereto is a statement of the respective amounts of:
o the Free Available Cash
o Current Assets and Current Liabilities
o Annualised EBITDA
o Net Debt,
as at, and for each relevant period ended on, the Reference Date.
3 The Borrower has complied with each of the financial undertakings set out
in clause 8.5 of the Loan Agreement and is not in default in the
performance or observance of any of such covenants [specify any
exceptions].
4 As at [date] no Default has occurred and is continuing [specify any
exceptions].
5 The person executing this certificate on our behalf has full information
concerning our financial affairs and has executed the same after having
made due investigation and enquiry as to the accuracy of the information
herein contained.
Terms used herein and not otherwise defined herein shall have the meanings set
forth in the said Loan Agreement. This certificate is rendered pursuant to
clause 8.1.5(b)(iv) of the Loan Agreement.
IN WITNESS WHEREOF, the undersigned has set his hand this [_] day of [_] [20__].
▇▇▇▇▇ GAS HOLDING COMPANY, INC.
By: ........................................
Chief Financial Officer
The Borrower
SIGNED by )
for and on behalf of )
GOLAR GAS HOLDING COMPANY, INC. ) ..........................
pursuant to a Power of Attorney ) Attorney-in-fact
Nordea Bank Norge ASA
SIGNED by )
for and on behalf of )
NORDEA BANK NORGE ASA )
as the Facility Agent, )
a Lead Arranger, Book Runner and as a Bank ) ..........................
pursuant to a Power of Attorney ) Attorney-in-fact
DnB NOR Bank ASA
SIGNED by )
for and on behalf of )
NORDEA BANK NORGE ASA )
as a Lead Arranger, Book Runner and as a Bank ) ..........................
pursuant to a Power of Attorney ) Attorney-in-fact
Citigroup Global Market Limited
SIGNED by )
for and on behalf of )
CITIGROUP GLOBAL MARKET LIMITED )
as a Lead Arranger and Book Runner ) ..........................
by its authorised signatory ) Authorised signatory
Fortis Bank (Nederland) N.V.
SIGNED by )
for and on behalf of )
FORTIS BANK (NEDERLAND) N.V. )
as a Lead Arranger and as a Bank ) ..........................
pursuant to a Power of Attorney ) Attorney-in-fact
Nordea Bank Finland Plc
SIGNED by )
for and on behalf of )
NORDEA BANK FINLAND PLC )
as the Documentation Agent, ) ..........................
pursuant to a Power of Attorney ) Attorney-in-fact
Citibank, N.A.
SIGNED by )
for and on behalf of )
CITIBANK, N.A. )
as a Bank ) ..........................
by its authorised signatory ) Authorised signatory