GOLAR LNG PARTNERS LP 4,300,000 Common Units Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit 1.1
Execution Version
4,300,000 Common Units
Representing Limited Partner Interests
New York, New York
November 1, 2012
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Golar LNG Partners LP, a limited partnership organized under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands (the “Partnership”), proposes to issue and sell to you (the “Underwriter”) 4,300,000 common units (the “Units”) of the Partnership, each representing a limited partner interest in the Partnership (the “Common Units”). Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3, which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 20 hereof.
▇▇▇▇▇ ▇▇ LLC, a limited liability company organized under the laws of the Republic of The ▇▇▇▇▇▇▇▇ Islands (the “General Partner”), serves as the sole general partner of the Partnership. Golar Partners Operating LLC, a limited liability company organized under the laws of the Republic of The ▇▇▇▇▇▇▇▇ Islands (the “Operating Company”), is a wholly owned direct subsidiary of the Partnership. The entities set forth on Schedule I hereto are direct or indirect subsidiaries of the Operating Company and are referred to herein collectively as the “Operating Subsidiaries.”
The General Partner, the Partnership and the Operating Company are hereinafter referred to collectively as the “Partnership Parties.” The General Partner, the Partnership, the Operating Company and the Operating Subsidiaries are hereinafter referred to collectively as the “Partnership Entities.”
This is to confirm the agreement among the Partnership Parties and the Underwriter concerning the purchase of the Units from the Partnership by the Underwriter.
1. Representations and Warranties. Each of the Partnership Parties, jointly and severally, represents and warrants to, and agrees with, the Underwriter as set forth below in this Section 1.
(a) Registration. The Partnership meets the requirements for use of Form F-3 under the Act and has prepared and filed with the Commission a registration statement (File number 333-181094) on Form F-3, including a related Base Prospectus, for registration under the Act of the offering and sale of the Units. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, has become effective. The Partnership may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Units, each of which has previously been furnished to the Underwriter. The Partnership will file with the Commission a final prospectus supplement relating to the Units in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except to the extent the Underwriter shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Underwriter prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has advised the Underwriter, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.
(b) No Material Misstatements or Omissions. On each Effective Date, the Registration Statement did, and when the Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date, the Prospectus (and any supplements thereto) will, comply in all material respects with the applicable requirements of the Act and the Exchange Act; on the Effective Date and at the Execution Time, the Registration Statement did not and does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each of the statements made by the Partnership in the Registration Statement and in any Preliminary Prospectus provided to the Underwriter for use in connection with the public offering of the Units, and to be made in the Prospectus and any further amendments or supplements to the Registration Statement or Prospectus within the coverage of Rule 175(b), including but not limited to any statements therein with respect to projected results of operations, estimated available cash and future cash distributions of the Partnership, was made or will be made with a reasonable basis and in good faith; provided, however, that the Partnership Parties make no representations or warranties as to the information contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Partnership by or on behalf of the Underwriter specifically for inclusion in the Registration Statement, the Preliminary Prospectus or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of the Underwriter consists of the information described as such in Section 8(b) hereof.
(c) No Material Misstatements or Omissions in Disclosure Package. (i) The Disclosure Package, when taken together as a whole, and (ii) each bona fide electronic road show, when taken together as a whole with the Disclosure Package and the number of Units to be included on the cover page of the Prospectus, do not, as of the Execution Time, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Partnership by or on behalf of the Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of the Underwriter consists of the information described as such in Section 8(b) hereof.
(d) No Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement that the Partnership or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Units and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Partnership was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Partnership be considered an Ineligible Issuer.
(e) Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, any Preliminary Prospectus or the Prospectus. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Partnership by or on behalf of the Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of the Underwriter consists of the information described as such in Section 8(b) hereof.
(f) Formation and Qualification of Partnership Entities. Each of the Partnership Entities has been duly formed or incorporated and is validly existing as a limited partnership, limited liability company or corporation, as applicable, in good standing under the laws of its respective jurisdiction of formation or incorporation with all limited liability company, limited partnership or corporate power and authority, as applicable, to enter into and perform its obligations under the Operative Agreements (as hereinafter defined) to which it is a party, to own or lease and to operate its properties currently owned or leased or to be owned or leased on the Closing Date and to conduct its business as currently conducted or as to be conducted on the Closing Date, in each case as described in the Disclosure Package and the Prospectus. Each of the Partnership Entities is duly qualified to do business as a foreign limited partnership, limited liability
company or corporation, as applicable, and is in good standing under the laws of each jurisdiction that requires such qualification or registration, except where the failure to be so qualified or registered would not, individually or in the aggregate, reasonably be expected to (i) have a material adverse effect on the condition (financial or otherwise), prospects, earnings, securityholders’ equity, results of operations, business or properties of the Partnership Entities taken as a whole (a “Material Adverse Effect”) or (ii) subject the limited partners of the Partnership to any material liability or disability.
(g) Power and Authority to Act as a General Partner. The General Partner has, and on the Closing Date, will have, full power and authority to act as general partner of the Partnership in all material respects as described in the Disclosure Package and the Prospectus.
(h) Ownership of the General Partner. Golar LNG Limited, a Bermuda exempted company (“Golar”), owns, and on the Closing Date will own, 100% of the limited liability company interests in the General Partner; such limited liability company interests have been duly authorized and validly issued in accordance with the limited liability company agreement of the General Partner (the “General Partner LLC Agreement”) and are fully paid (to the extent required by the General Partner LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 20, 31, 40 and 49 of the Republic of The ▇▇▇▇▇▇▇▇ Islands Limited Liability Company Act of 1996 (the “▇▇▇▇▇▇▇▇ Islands LLC Act”)); and Golar owns such limited liability company interests free and clear of all liens, encumbrances, security interests, charges, equities or other claims (“Liens”).
(i) Ownership of the General Partner Interest in the Partnership. As of the date hereof, the General Partner is the sole general partner of the Partnership, with a 2.0% general partner interest in the Partnership, which is represented by 946,355 general partner units (the “General Partner Units”); on the Closing Date, the General Partner will be the sole general partner of the Partnership with a 2.0% general partner interest in the Partnership, which will be represented by 1,065,224 General Partner Units; the General Partner Units have been duly authorized and validly issued in accordance with the partnership agreement of the Partnership (as the same may be amended and restated on or prior to the date hereof, the “Partnership Agreement”), and the General Partner owns such general partner interest free and clear of all Liens (except restrictions on transferability contained in the Partnership Agreement and as described in the Disclosure Package).
(j) Ownership of Sponsor Units and Incentive Distribution Rights. (i) As of the date hereof Golar owns 10,296,559 Common Units and 15,949,831 Subordinated Units (all such Common Units and Subordinated Units being collectively referred to herein as the “Sponsor Units”); on the Closing Date, after giving effect to the transactions described in the Unit Purchase Agreement, Golar will own 11,821,149 Common Units and 15,949,831 Subordinated Units; (ii) the General Partner owns 81% of the Partnership’s incentive distribution rights (the “General Partner Incentive Distribution Rights”); and (iii) Golar LNG Energy Limited, a Bermuda exempted company and an indirect subsidiary of Golar (“Golar Energy”), owns 19% of the Partnership’s incentive
distribution rights (the “Golar Energy Incentive Distribution Rights” and together with the General Partner Incentive Distribution Rights, the “Incentive Distribution Rights”). All of the Sponsor Units and the Incentive Distribution Rights, and the limited partner interests represented thereby, have been duly authorized and validly issued in accordance with the Partnership Agreement and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as described in the Disclosure Package and the Prospectus and except as such nonassessability may be affected by Sections 30, 41, 51 and 60 of The ▇▇▇▇▇▇▇▇ Islands Limited Partnership Act (the “▇▇▇▇▇▇▇▇ Islands LP Act”)); and Golar, Golar Energy and the General Partner own the Sponsor Units and the Incentive Distribution Rights, respectively, free and clear of all Liens (except restrictions on transferability contained in the Partnership Agreement, Liens under Golar’s 3.75% Convertible Bonds and as described in the Disclosure Package).
(k) Ownership of the Operating Company. The Partnership owns, and on the Closing Date will own, a 100% membership interest in the Operating Company; such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of the Operating Company (the “Operating Company LLC Agreement”) and is fully paid (to the extent required under the Operating Company LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 20, 31, 40 and 49 of The ▇▇▇▇▇▇▇▇ Islands LLC Act); and the Partnership owns such membership interest free and clear of all Liens other than Liens arising under the $285 million Senior Secured Credit Agreement, dated as of September 29, 2008, among the Partnership and the lenders party thereto (the “Credit Agreement”).
(l) Ownership of the Operating Subsidiaries. As of the date hereof, the Operating Company owns, and on the Closing Date will own, directly or indirectly, 100% of the equity interests in each of the Operating Subsidiaries, except Aurora Management Inc. and Faraway Maritime Shipping Company, in which it owns, directly or indirectly, 90% and 60%, respectively, of such equity interests and in which Chinese Petroleum Corporation owns, directly or indirectly, 10% and 40%, respectively, of such equity interests and except PT Golar Indonesia, in which it owns 49% of such equity interests and in which PT Pesona Sentra Utama owns 51% of such equity interests; in each case, such equity interests have been duly authorized and validly issued in accordance with the charter, bylaws, limited liability company agreement or other organizational documents of each Operating Subsidiary (the “Subsidiary Organizational Documents”) and are fully paid (to the extent required under the Subsidiary Organizational Documents) and nonassessable; and the Operating Company owns such equity interests free and clear of all Liens other than Liens arising under the Credit Agreement, the Secured Loan Facility dated November 26, 1997 by the Bank of Taiwan, as lead arranger, Faraway Maritime Shipping Company, as borrower, and the other lenders and arrangers party thereto (the “Mazo Loan Facility”), Liens under joint venture agreements regarding the ▇▇▇▇▇ ▇▇▇▇ (the “▇▇▇▇ ▇▇ Documents”), Liens arising under and related to the Lease Agreement dated August 27, 2003 among A&L CF June (3) Limited and Golar LNG 2215 Corporation, as amended, in respect of the Methane Princess and the Lease Agreement dated March 16, 2004 among Lloyds TSB Maritime Leasing (No. 13) Limited and Golar
LNG 2220 Corporation, as amended, in respect of the Golar Winter and Liens arising under the Credit Facility dated June 17, 2010 by and among Golar Freeze Holding Co., DnB Bank ASA (formerly DnB NOR Bank ASA), as facility agent, and the lenders party thereto (the “Freeze Credit Facility”).
(m) No Other Subsidiaries. Except as described in Sections 1(i), 1(j), 1(k) and 1(l), none of the Partnership Entities owns or, on the Closing Date, will own, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity.
(n) Capitalization. As of June 30, 2012, the Partnership had a capitalization as set forth in the “Capitalization” section of the Prospectus.
(o) No Preemptive Rights, Registration Rights or Options. Except as described in the Disclosure Package and the Prospectus, there are no (i) preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any equity interests in the Partnership Entities or (ii) outstanding options or warrants to purchase any securities of the Partnership Entities. Neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Common Units or other securities of the Partnership.
(p) Authority and Authorization. Each of the Partnership Parties has all requisite power and authority to execute and deliver this Agreement and perform its obligations hereunder. The Partnership has all requisite partnership power and authority to issue, sell and deliver the Units to the Underwriter in accordance with and upon the terms set forth in this Agreement, the Disclosure Package and the Prospectus. On each Closing Date, all corporate, partnership and limited liability company action, as the case may be, required to be taken by the Partnership Entities or any of their securityholders, members or partners, as the case may be, for the authorization, issuance, sale and delivery of the Units, the execution and delivery by the Partnership Entities of this Agreement and the consummation of the transactions contemplated by this Agreement to take place as of or prior to the Closing Date, shall have been validly taken.
(q) Authorization, Execution and Delivery of this Agreement. This Agreement has been duly authorized, executed and delivered by each of the Partnership Parties.
(r) Authorization, Execution, Delivery and Enforceability of Other Agreements. On or before the Closing Date:
(i) the General Partner LLC Agreement has been duly authorized, executed and delivered by Golar and is a valid and legally binding agreement of Golar, enforceable against Golar in accordance with its terms;
(ii) the Partnership Agreement has been duly authorized, executed and delivered by the General Partner and Golar and is a valid and legally binding agreement of the General Partner and Golar, enforceable against each of them in accordance with its terms;
(iii) the Operating Company LLC Agreement has been duly authorized, executed and delivered by the Partnership and is a valid and legally binding agreement of the Partnership, enforceable against the Partnership in accordance with its terms;
(iv) the Purchase, Sale and Contribution Agreement dated November 1, 2012 by and among the Partnership, Golar, Golar Energy, Golar Chartering Ltd. (“Golar Chartering”) and the Operating Company related to the acquisition of all of the issued and outstanding common shares of Golar LNG 2226 Corporation and all of the issued share capital of Golar 2226 (UK) Limited (collectively, the “Acquired Subsidiaries”) (the “Purchase Agreement”), has been duly authorized, executed and delivered by the Partnership, Golar, Golar Energy, Golar Chartering and the Operating Company and is a valid and legally binding agreement of the Partnership, Golar, Golar Energy, Golar Chartering and the Operating Company, enforceable against the Partnership, Golar Energy, the Operating Company and Golar in accordance with its terms; and
(v) the Unit Purchase Agreement dated November 1, 2012 between the Partnership and Golar (the “Unit Purchase Agreement”) has been duly authorized, executed and delivered by the Partnership and is a valid and legally binding agreement of the Partnership, enforceable against the Partnership in accordance with its terms;
provided, however, that with respect to each agreement described in this Section 1(r), the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and provided further that the indemnity, contribution and exoneration provisions with respect to violations of federal securities laws contained in any of such agreements may be limited by applicable laws and public policy.
The agreements described in clauses (i) through (iii) of this Section 1(r) are herein collectively referred to as the “Organizational Documents.” The agreements described in clauses (iv) and (v) of this Section 1(r) are herein collectively referred to as the “Operative Agreements.”
(s) No Conflicts. None of (i) the offering or sale by the Partnership of the Units to be issued and sold by the Partnership (a) to the Underwriter pursuant to the terms of this Agreement or (b) to Golar pursuant to the Unit Purchase Agreement, (ii) the execution, delivery and performance of this Agreement and the Operative Agreements by
the Partnership Entities party hereto or thereto, or (iii) the consummation of the transactions contemplated hereby or thereby (A) constituted, constitutes or will constitute a violation of the Organizational Documents or any of the organizational documents of the Partnership Entities, (B) conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a default (or an event that, with notice or lapse of time or both, would constitute such a default) under any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which any of the Partnership Entities is a party or by which any of them or any of their respective properties may be bound, (C) violates or will violate any statute, law or regulation or any order, judgment, decree or injunction of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any of the Partnership Entities or any of their properties or assets in a proceeding to which any of them or their property is a party or (D) resulted, results or will result in the creation or imposition of any Lien upon any property or assets of any of the Partnership Entities (other than Liens arising under the Credit Agreement), which conflicts, breaches, violations, defaults or Liens, in the case of clauses (B), (C) or (D), would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or would materially impair the ability of the Partnership Entities to consummate the transactions provided for in this Agreement or the Operative Agreements.
(t) No Consents. No permit, consent, approval, authorization, order, registration, filing or qualification of or with any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any of the Partnership Entities or any of their properties or assets is required in connection with (i) the issuance, offering or sale by the Partnership of the Units, (ii) the execution, delivery and performance of this Agreement and the Operative Agreements or the fulfillment of the terms hereof or thereof by the Partnership Entities party hereto or thereto or (iii) the consummation of any other transactions contemplated by this Agreement or the Operative Agreements, except (i) for such permits, consents, approvals and similar authorizations required under the Act, the Exchange Act and state securities or “Blue Sky” laws of any jurisdiction, (ii) for such permits, consents or approvals as may be required in connection with the transactions contemplated by the Purchase Agreement as disclosed in the Disclosure Package and the Prospectus, (iii) for such consents that have been, or prior to the Closing Date will be, obtained and (iv) for such consents that, if not obtained, would not, individually or in the aggregate, have a Material Adverse Effect.
(u) No Defaults. None of the Partnership Entities is (i) in violation of its organizational documents, (ii) in violation of any statute, law, rule or regulation or any order, judgment, decree or injunction of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any of the Partnership Entities or any of their properties or assets or (iii) in breach, default (or an event that, with notice or lapse of time or both, would constitute such a default) or violation in the performance of any obligation, agreement or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, which in the case of clauses (ii) and (iii) would, if continued, reasonably be expected to have a Material
Adverse Effect or materially impair the ability of any of the Partnership Entities to perform their obligations under this Agreement or the Operative Agreements.
(v) Conformity of Units to Description. The Units, when delivered in accordance with the terms of the Partnership Agreement and this Agreement against payment therefor as provided therein and herein, will conform in all material respects to the description thereof contained in the Disclosure Package and the Prospectus.
(w) No Labor Dispute. Except as set forth in the Disclosure Package and the Prospectus, no labor problem or dispute with the employees of any Partnership Entity exists or, to the knowledge of the Partnership Entities, is threatened or imminent, and none of the Partnership Entities is aware of any existing or imminent labor disturbance by the employees of any of the Partnership Entities’ principal suppliers, contractors or customers, which, in any case, would reasonably be expected to have a Material Adverse Effect.
(x) Financial Statements. The historical financial statements included in the Preliminary Prospectus, the Prospectus and the Registration Statement present fairly in all material respects the financial condition, results of operations and cash flows of the entities purported to be shown thereby and on the basis stated therein, as of the dates and for the periods indicated; such financial statements comply as to form with the applicable accounting requirements of Regulation S-X under the Act and have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved. All disclosures contained in the Registration Statement, the Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly present the information called for in all material respects and have been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(y) Independent Registered Public Accounting Firm. PricewaterhouseCoopers LLP, who has audited certain financial statements included in the Registration Statement, the Disclosure Package and the Prospectus of the Partnership, its combined predecessors and the General Partner and delivered its reports with respect thereto, is an independent registered public accounting firm with respect to such entities within the meaning of the Act and the applicable published rules and regulations thereunder and the rules and regulations of the Public Company Accounting Oversight Board (“PCAOB”).
(z) Absence of Litigation. Except as described in the Disclosure Package and the Prospectus, there is no (i) action, suit or proceeding before or by any court, arbitrator or governmental agency, body or official, domestic or foreign, now pending or, to the knowledge of any of the Partnership Parties, threatened, to which any of the Partnership Entities is or may be a party or to which the property of any of the
Partnership Entities is or may be subject, (ii) statute, rule, regulation or order that has been enacted, adopted or issued by any governmental agency with respect to any Partnership Entity or (iii) injunction, restraining order or order of any nature issued by a federal or state court or foreign court of competent jurisdiction, to which any of the Partnership Entities is or may be subject, that, in the case of clauses (i), (ii) and (iii) above, would, individually or in the aggregate, reasonably be expected to (A) have a Material Adverse Effect, (B) prevent or result in the suspension of the offering and sale of the Units or (C) in any manner draw into question the validity of this Agreement.
(aa) Title to Properties. As of the date hereof, the Partnership Entities have, and on the Closing Date will have, good title to all personal property described in the Disclosure Package and the Prospectus to be owned by the Partnership Entities, and each of the Partnership Entities and, to the Partnership Parties’ knowledge, the other entities identified on Exhibit B hereto hold the interest in the applicable vessel set forth opposite its name on Exhibit B (“Vessels”), in each case free and clear of all Liens except (i) as described, and subject to the limitations contained, in the Disclosure Package and the Prospectus, (ii) that arise from indebtedness expressly assumed by the Partnership, the Operating Company or the Operating Subsidiaries pursuant to the Purchase Agreement or (iii) as do not materially affect the value of such property, taken as a whole, and do not materially interfere with the use of such properties, taken as a whole, as they have been used in the past and are proposed to be used in the future, as described in the Disclosure Package and the Prospectus (the Liens described in clauses (i) through (iii) above being “Permitted Liens”); provided that with respect to any interest in real property and buildings held under lease by the Operating Company or any of the Operating Subsidiaries, such real property and buildings are held under valid and subsisting and enforceable leases (except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)). As of the date hereof, the Partnership Entities do not, and at each Closing Date will not, own, lease or otherwise have interest in any real property.
(bb) Vessel Registration. Each Vessel is duly registered under the laws of the jurisdiction set forth on Exhibit B.
(cc) Tax Returns. Each of the Partnership Entities has filed all foreign, federal, state and local tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not reasonably be expected to have a Material Adverse Effect) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not reasonably be expected to have a Material Adverse Effect.
(dd) Insurance. The Partnership Entities carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as are generally maintained by companies of established repute engaged in the
same or similar business, and all such insurance is in full force and effect. The Partnership Entities have no reason to believe that they will not be able to (i) renew their existing insurance coverage as and when such policies expire or (ii) obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct their business as now conducted and at a cost that would not reasonably be expected to have a Material Adverse Effect.
(ee) Distribution Restrictions. Except as provided by Section 43 of The ▇▇▇▇▇▇▇▇ Islands Business Corporation Act or Section 5.9 of the Liberian Business Corporation Act, the Credit Agreement, the Loan Agreement dated October 18, 2011 among Golar, as lender, and the Partnership, as borrower, the Mazo Loan Facility, the Freeze Credit Facility or the ▇▇▇▇ ▇▇ Documents, no subsidiary of the Partnership or the Operating Company is currently prohibited, directly or indirectly, from paying any distributions to the Partnership or the Operating Company, from making any other distribution on such subsidiary’s equity interests, from repaying to the Partnership or the Operating Company any loans or advances to such subsidiary from the Partnership or the Operating Company or from transferring any of such subsidiary’s property or assets to the Partnership or the Operating Company or any other subsidiary of the Partnership or the Operating Company, except as described in or contemplated by the Disclosure Package and the Prospectus.
(ff) Licenses and Permits. Except as described in or contemplated by the Disclosure Package and the Prospectus, and except for those that are the responsibility of the charter parties to obtain pursuant to the terms of the charter agreements relating to the Vessels as such agreements are currently in effect (the “Charter Agreements”), the Partnership Entities possess, and upon the consummation of the transactions contemplated by the Purchase Agreement the Acquired Subsidiaries will possess, such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to own or lease their properties and to conduct their business in the manner described in the Disclosure Package and the Prospectus, except where the failure so to possess would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; except as described in the Disclosure Package and the Prospectus, the Partnership Entities are, and upon the consummation of the transactions contemplated by the Purchase Agreement the Acquired Subsidiaries will be, in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the Partnership Entities have not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. To the knowledge of the Partnership Parties, the charter parties to the Charter Agreements
possess, or reasonably expect to possess in the ordinary course of business as necessary, the Governmental Licenses that are the responsibility of the charter parties to obtain pursuant to the terms of the Charter Agreements.
(gg) Environmental Laws. Each Partnership Entity (i) is in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to pollution or the protection of the environment or imposing liability or standards of conduct concerning the use, handling, storage or management of any Hazardous Materials (as defined below) (“Environmental Laws”), (ii) has received all permits required of it under applicable Environmental Laws to conduct its respective businesses as presently conducted (“Environmental Permits”) except for any such Environmental Permits that are the responsibility of the charter parties under the Charter Agreements and that the Partnership Parties reasonably expect such charter parties to obtain, (iii) is in compliance with all terms and conditions of any such permits and (iv) does not have any liability in connection with any known or threatened release into the environment of any Hazardous Material, except in the case of each of clauses (i), (ii), (iii) and (iv) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The term “Hazardous Material” means (A) any “hazardous substance” as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, (B) any “hazardous waste” as defined in the Resource Conservation and Recovery Act, as amended, (C) any petroleum or petroleum product, (D) any polychlorinated biphenyl and (E) any hazardous, toxic chemical, material, waste or substance regulated under or within the meaning of any applicable Environmental Law. In the ordinary course of business, the Partnership Entities periodically review the effect of Environmental Laws on their business, operations and properties, in the course of which they identify and evaluate costs and liabilities that they believe are reasonably likely to be incurred pursuant to such Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Partnership Entities have reasonably concluded that such associated costs and liabilities relating to the Vessels would not, individually or in the aggregate, have a Material Adverse Effect. To the knowledge of the Partnership Parties, the parties to the Charter Agreements possess, or reasonably expect to possess in the ordinary course as necessary, the Environmental Permits that are the responsibility of the charter parties to obtain pursuant to the terms of the Charter Agreements.
(hh) Intellectual Property. Except as would not result in a Material Adverse Effect, (i) the Partnership Entities own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on their business in the manner described in the Disclosure Package and the Prospectus, and (ii) the Partnership Entities have not received any notice and are not otherwise aware of any infringement of or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances that would render any Intellectual Property invalid or inadequate to protect the interests in the Partnership Entities.
(ii) Certain Relationships and Related Transactions. No relationship, direct or indirect, exists between or among any Partnership Entity, on the one hand, and the directors, officers, stockholders, affiliates, customers or suppliers of any Partnership Entity, on the other hand, that is required to be described in the Disclosure Package or the Prospectus but is not so described.
(jj) Description of Legal Proceedings and Contracts; Filing of Exhibits. There are no legal or governmental proceedings pending or, to the knowledge of the Partnership Parties, threatened or contemplated, against any of the Partnership Entities, or to which any of the Partnership Entities is a party, or to which any of their respective properties or assets is subject, that are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not so described, and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement, the Disclosure Package or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act. The statements included in the Registration Statement, the Disclosure Package and the Prospectus insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate summaries of such legal matters, agreements, documents or proceedings in all material respects.
(kk) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. On the Closing Date, the Partnership will be in compliance in all material respects with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, the rules and regulations promulgated in connection therewith and the rules of the Nasdaq Stock Market LLC that are effective and applicable to the Partnership.
(ll) Investment Company. None of the Partnership Entities is, and after giving effect to the offering and sale of the Units, none of the Partnership Entities will be, an “investment company” or a company “controlled by” an “investment company,” each as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(mm) Passive Foreign Investment Company. The Partnership will not be a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended (the “Code”), for the taxable year ending December 31, 2012, and based on the Partnership’s current and expected assets, income and operations as described in the Disclosure Package and the Prospectus, the Partnership does not believe that it is likely to become a PFIC for any future taxable year.
(nn) Section 883 Exemption. Based upon the assumptions and subject to the limitations set forth in the Registration Statement, the Disclosure Package and the Prospectus (or any documents incorporated by reference therein), the Partnership believes that it will qualify for the exemption from United States federal income tax with respect
to its U.S. source international transportation income under Section 883 of the Code for the taxable year ending December 31, 2012 and for future tax years, provided that less than 50 percent of its Common Units are owned by “5-percent shareholders” (other than Golar or its affiliates) as defined in Treasury Regulation 1.883-2(d)(3) for more than half the number of days during each such year.
(oo) Tax Status. The Partnership has properly elected to be classified as an association taxable as a corporation for United States federal income tax purposes. In addition, each of the General Partner, Golar Maritime (Asia) Inc., Oxbow Holdings Inc., Aurora Management Inc. and Faraway Maritime Shipping Inc. is properly classified as an association taxable as a corporation for United States federal income tax purposes. Each of the Partnership Entities, other than the Partnership and the entities referenced in the preceding sentence, has properly elected to be classified as disregarded as an entity separate from its owner for United States federal income tax purposes.
(pp) Books and Records. The Partnership Entities maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals, and appropriate action is taken with respect to any differences.
(qq) Market Stabilization. None of the Partnership Entities has taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units.
(rr) Foreign Corrupt Practices Act. No Partnership Entity nor, to the knowledge of the Partnership Parties, any director, officer, agent, employee or affiliate of any Partnership Entity, is aware of or has taken any action, directly or indirectly, that would result in a violation by such Persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Partnership Entities and, to the knowledge of the Partnership Parties, their affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures that are reasonably designed to ensure, and that are reasonably expected to continue to ensure, continued compliance therewith.
(ss) Anti-Money Laundering Laws. The operations of the Partnership Entities are and have been conducted at all times in compliance with, in each case to the extent applicable, the financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the anti-money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules or regulations, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any of the Partnership Entities with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Partnership Parties, threatened.
(tt) Sanctions Laws and Regulations. Neither the sale of the Units by the Partnership hereunder nor the use of the proceeds thereof would reasonably be expected to cause any U.S. person participating in the offering, either as underwriter and/or purchaser of the Units, to violate the Trading With the Enemy Act, as amended, the International Emergency Economic Powers Act, as amended, or any foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) (all such laws and regulations collectively referred to as the “Sanctions Laws and Regulations”) or any enabling legislation or executive order relating thereto.
(uu) Office of Foreign Assets Control. None of the Partnership Entities, nor, to the knowledge of the Partnership Parties, any director, officer, agent, employee or affiliate of a Partnership Entity is currently subject to or engaged in any activity in violation of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Partnership will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing any activities of any person currently subject to or engaged in any activities in violation of any U.S. sanctions administered by OFAC.
(vv) Statistical Data. Any statistical and market-related data included in the Registration Statement, the Disclosure Package or the Prospectus are based on or derived from sources that the Partnership believes to be reliable and accurate.
(ww) No Distribution of Other Offering Materials. None of the Partnership Entities has distributed or, prior to the Closing Date and completion of the distribution of the Units, will distribute any offering material in connection with the offering and sale of the Units other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the Underwriter has consented in accordance with this Agreement or any other materials, if any, permitted by the Act, including Rule 134 thereunder.
(xx) Listing on the Nasdaq Global Market. The Units have been approved to be listed on the Nasdaq Global Market, subject to official notice of issuance.
(yy) Disclosure Controls. (i) The Partnership has established and maintains disclosure controls and procedures (to the extent required by and as such term is defined in Rule 13a-15 under the Exchange Act), (ii) such disclosure controls and procedures are
designed to ensure that the information required to be disclosed by the Partnership in the reports it files or will file or submit under the Exchange Act, as applicable, is accumulated and communicated to management of the Partnership to allow timely decisions regarding required disclosure to be made and (iii) such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established to the extent required by Rule 13a-15 of the Exchange Act.
(zz) Transfer Taxes. No stamp or other issuance or transfer taxes are payable by or on behalf of the Underwriter in connection with (A) the delivery of the Units to be sold by the Partnership in the manner contemplated by this Agreement or (B) the sale and delivery by the Underwriter of the Units as contemplated herein.
Any certificate signed by any officer of any of the Partnership Parties and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Units shall be deemed a representation and warranty by such Partnership Party, as to matters covered thereby, to the Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Partnership agrees to sell to the Underwriter, and the Underwriter agrees to purchase from the Partnership, at a purchase price of $30.50 per unit, the Units.
3. Delivery and Payment. Delivery of and payment for the Units shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:00 a.m., New York City time, on November 7, 2012, or at such time on such later date not more than three Business Days after the foregoing date as the Underwriter shall designate, which date and time may be postponed by agreement between the Underwriter and the Partnership (such date and time of delivery and payment for the Units being herein called the “Closing Date”). Delivery of the Units shall be made to the Underwriter against payment by the Underwriter of the purchase price thereof to the Partnership or, upon the order of the Partnership, by wire transfers payable in same-day funds to accounts specified by the Partnership. Delivery of the Units shall be made through the facilities of DTC unless the Underwriter shall otherwise instruct.
4. Offering by Underwriter. It is understood that the Underwriter proposes to offer the Units for sale to the public as set forth in the Prospectus.
5. Agreements. Each of the Partnership Parties, jointly and severally, agrees with the Underwriter that:
(a) Preparation of Prospectus and Registration Statement. Prior to the termination of the offering of the Units, the Partnership will not file any amendment to the Registration Statement or supplement (including any Preliminary Prospectus or the Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless the Partnership has furnished the Underwriter a copy for its review prior to filing and will not file any such proposed amendment or supplement to which the Underwriter reasonably objects. The Partnership will cause the Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the Underwriter with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed (without reliance on Rule 424(b)(8)) and will provide evidence satisfactory to the Underwriter of such timely filing. The Partnership will promptly advise the Underwriter (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the offering of the Units, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Partnership will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) Amendment or Supplement of Disclosure Package and Issuer Free Writing Prospectus. If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the (i) Disclosure Package or any Issuer Free Writing Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or (ii) any Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Partnership will (A) promptly notify the Underwriter so that any use of the Disclosure Package or the Issuer Free Writing Prospectus, as the case may be, may cease until the Disclosure Package or such Issuer Free Writing Prospectus is amended or supplemented; (B) amend or supplement the Disclosure Package or the Issuer Free Writing Prospectus, as the case may be, to correct such statement, omission or conflict; and (C) supply any amendment or supplement to the Underwriter in such quantities as it may reasonably request.
(c) Amendment of Registration Statement or Supplement of Prospectus. If, at any time when a prospectus relating to the Units is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with the use or delivery of the Prospectus, the Partnership promptly will (i) notify the Underwriter of any such event; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment, supplement or new registration statement that will correct such statement or omission or effect such compliance; (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in the use of the Prospectus; and (iv) supply any supplemented Prospectus to the Underwriter in such quantities as the Underwriter may reasonably request.
(d) Reports to Unitholders. As soon as practicable, the Partnership will make generally available to its unitholders and to the Underwriter an earnings statement or statements of the Partnership and its subsidiaries that will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(e) Signed Copies of the Registration Statement and Copies of the Prospectus. The Partnership will furnish to the Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Underwriter may reasonably request. The Partnership will pay the expenses of printing or other production of all documents relating to the offering.
(f) Qualification of Units. The Partnership will arrange, if necessary, for the qualification of the Units for sale under the laws of such jurisdictions as the Underwriter may reasonably designate and will maintain such qualifications in effect so long as reasonably required for the distribution of the Units; provided, however, that in no event shall the Partnership be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Units, in any jurisdiction where it is not now so subject.
(g) Lock-Up Period. The Partnership Parties will not, without the prior written consent of the Underwriter, offer, sell, contract to sell, pledge, or otherwise dispose of, or enter into any transaction designed to or that might reasonably be expected to (i) result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by any of the Partnership Parties or any person in privity with any of them or any of their affiliates, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or (ii) establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act) in any common units of the Partnership or any securities convertible into, or exercisable or exchangeable for, such common units; or publicly announce an
intention to effect any such transaction, for a period of 45 days after the date of this Agreement; provided, however, that the Partnership (A) may issue and sell common units pursuant to, and file a registration statement on Form S-8 relating to, any employee benefit plan of the Partnership in effect at the Execution Time, and (B) the Partnership may issue common units issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(h) Price Manipulation. The Partnership Parties will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units.
(i) Expenses. The Partnership Parties agree to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Units; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Units, including any stamp or transfer taxes in connection with the execution of this Agreement or the original issuance and sale of the Units; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Units; (v) the expenses, if any, for the registration of the Units under the Exchange Act and the listing of the Units on the Nasdaq Global Market; (vi) any registration or qualification of the Units for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriter relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees); (viii) the expenses incurred by or on behalf of the Partnership representatives in connection with presentations to prospective purchasers of the Units; (ix) the fees and expenses of the Partnership’s accountants and the fees and expenses of counsel (including local and special counsel) for the Partnership; and (x) all other costs and expenses incident to the performance by the Partnership Parties of their respective obligations hereunder. Notwithstanding the foregoing, it is understood that except as expressly provided in this Section 5(i) or in Sections 7 and 8 hereof, the Underwriter will pay all of its own costs and expenses, including without limitation, fees and disbursements of its counsel and transfer taxes on the resale by them of any of the Units.
(j) Free Writing Prospectus. The Partnership agrees that, unless it has obtained or shall have obtained the prior written consent of the Underwriter, and the Underwriter agrees with the Partnership that, unless it has obtained or shall have
obtained, as the case may be, the prior written consent of the Partnership, it has not made and will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433; provided, however, that the prior written consent of the parties hereto shall be deemed to have been given in respect of each Free Writing Prospectus included in Schedule II hereto and any bona fide electronic road show within the meaning of Rule 433. Any such free writing prospectus consented to by the Underwriter or the Partnership is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Partnership agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) Rule 463. The Partnership will file with the Commission such information in Form 20-F as may be required by Rule 463 under the Act.
(l) Investment Company. As of the Closing Date, no Partnership Entity will be deemed an “investment company” as defined in the Investment Company Act. For a period of five years after the Closing Date, the Partnership will use its reasonable best efforts to ensure that no Partnership Entity, or any subsidiary thereof, shall become an “investment company” as defined in the Investment Company Act. Unless there has occurred a material change in the nature of the operations of the Partnership, for a period of five years after the Closing Date, the Partnership will use commercially reasonable efforts to ensure that the Partnership shall not become a PFIC.
(m) Sanctions Laws and Regulations. The Partnership will not take, and will cause each subsidiary not to take, directly or indirectly, any action that would reasonably be expected to result in a violation by any U.S. person participating in the offering contemplated by this Agreement of the Sanction Laws and Regulations with respect to the sale of the Units hereunder.
6. Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Units shall be subject to the accuracy of the representations and warranties on the part of the Partnership Parties contained herein as of the Execution Time, the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the Partnership Parties of their obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Partnership shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, special Republic of Liberia and Republic of The ▇▇▇▇▇▇▇▇ Islands counsel for the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-1.
(c) The Partnership shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., U.S. counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-2.
(d) The Partnership shall have requested and caused ▇▇▇▇▇▇ Westwood & Riegels, special British Virgin Islands counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-3.
(e) The Partnership shall have requested and caused ▇▇▇▇▇▇ Redo ▇▇▇▇▇▇▇ Advogados, special Brazilian counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-4.
(f) The Partnership shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (UK) LLP, special United Kingdom counsel for the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-5.
(g) The Partnership shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Asia Practice LLP, special Singapore counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-6.
(h) The Partnership shall have requested and caused Hanafiah Ponggawa & Partners, special Indonesian counsel to the Partnership Entities, to have furnished to the Underwriter its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriter, substantially to the effect set forth in Exhibit C-7.
(i) The Underwriter shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto)
and other related matters as the Underwriter may reasonably require, and the Partnership Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(j) The Partnership shall have furnished to the Underwriter a certificate of the Partnership, signed on behalf of the Partnership by the Principal Executive Officer and the Principal Financial Officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each bona fide electronic road show used in connection with the offering of the Units, and this Agreement and that:
(i) the representations and warranties of the Partnership Parties in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and each of the Partnership Parties have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, and no proceedings for that purpose have been instituted or, to the Partnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(k) The Partnership Parties shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Underwriter, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriter, (i) confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, adopted by the Commission and the PCAOB, and (ii) stating their conclusions and findings with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings in the United States.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the
Partnership Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(m) Prior to the Closing Date, the Partnership Entities shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(n) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Partnership Entities’ debt securities, if any such securities are outstanding, by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(o) The Units shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, subject to official notice of issuance, and reasonably satisfactory evidence of such actions shall have been provided to the Underwriter.
(p) At the Execution Time, the Partnership Entities shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each of the persons listed on Schedule III hereto.
(q) At the date of this Agreement and at the Closing Date, the Underwriter shall have received from the Partnership a certificate substantially in the form of Exhibit D hereto and signed by the Principal Financial Officer of the Partnership.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriter’s Expenses. If the sale of the Units provided for herein is not consummated because any condition to the obligations of the
Underwriter set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 9(i) hereof or because of any refusal, inability or failure on the part of the Partnership Parties to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriter, the Partnership Parties will reimburse the Underwriter on demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by the Underwriter in connection with the proposed purchase and sale of the Units.
8. Indemnification and Contribution.
(a) Each of the Partnership Parties agrees, jointly and severally, to (i) indemnify and hold harmless the Underwriter, the directors, officers, employees and agents of the Underwriter, affiliates of the Underwriter who have participated in the distribution of the Units as underwriters and each person who controls the Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (A) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or in any amendment thereof, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (B) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or any other “issuer information” contained in a Permitted Free Writing Prospectus filed or required to be filed pursuant to Rule 433(a) under the Act, or in any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (ii) reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Partnership Parties will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Partnership Parties by or on behalf of the Underwriter specifically for inclusion therein, which information consists solely of the information set forth in the last sentence of Section 8(b). This indemnity agreement will be in addition to any liability that the Partnership Parties may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless each of the Partnership Parties, each of their respective directors, each of the officers who signs the Registration Statement, and each person who controls any Partnership Party within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Partnership Parties to the Underwriter, but only with reference to written information relating to the Underwriter furnished to the Partnership Parties by or
on behalf of the Underwriter specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability that the Underwriter may otherwise have. Each Partnership Party acknowledges that the statements set forth in the last paragraph of the cover page regarding delivery of the Units and, under the heading “Underwriting,” (i) the sentences related to concessions and reallowances and (ii) the paragraphs related to stabilization, syndicate covering transactions and short sales in the Preliminary Prospectus and the Prospectus constitute the only information furnished in writing by or on behalf of the Underwriter for inclusion in the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ one separate counsel (in addition to local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not
include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Partnership Parties agree, jointly and severally, and the Underwriter agrees, to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively “Losses”) to which the Partnership Parties and the Underwriter may be subject in such proportion as is appropriate to reflect the relative benefits received by the Partnership Parties, on the one hand, and by the Underwriter, on the other, from the offering of the Units; provided, however, that in no case shall the Underwriter be responsible for any amount in excess of the underwriting discount or commission applicable to the Units purchased by the Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Partnership Parties, jointly and severally, and the Underwriter shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Partnership Parties, on the one hand, and of the Underwriter, on the other, in connection with the statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Partnership Parties shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by the Partnership, and benefits received by the Underwriter shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Partnership Parties, on the one hand, or the Underwriter, on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Partnership Parties and the Underwriter agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls the Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of the Underwriter shall have the same rights to contribution as the Underwriter, and each person who controls the Partnership Parties within the meaning of either the Act or the Exchange Act, each officer of any of the Partnership Parties who shall have signed the Registration Statement and each director of any of the Partnership Parties shall have the same rights to contribution as the Partnership Parties, subject in each case to the applicable terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination in the absolute discretion of the Underwriter, by notice given to the Partnership prior to delivery of and
payment for the Units, if at any time prior to such delivery and payment (i) trading in the Partnership’s Units shall have been suspended by the Commission or the Nasdaq Stock Market LLC, (ii) trading in securities generally on the New York Stock Exchange or the Nasdaq National Market shall have been suspended or limited or minimum prices shall have been established on either of such exchanges, (iii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Underwriter, impractical or inadvisable to proceed with the offering or delivery of the Units as contemplated by the Preliminary Prospectus or the Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Partnership Parties or their respective officers and of the Underwriter set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Underwriter or the Partnership Parties or any of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Units. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to (i) the Underwriter, will be mailed, delivered or telefaxed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equity Syndicates Desk (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇); or (ii) the Partnership Parties, will be mailed, delivered or telefaxed to the Partnership, c/o Golar Management Limited, ▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (fax no. (▇▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇), Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
13. No Fiduciary Duty. Each of the Partnership Parties hereby acknowledges that (a) the purchase and sale of the Units pursuant to this Agreement is an arm’s-length commercial transaction between the Partnership Parties, on the one hand, and the Underwriter and any affiliates through which it may be acting, on the other, (b) the Underwriter is acting as principal and not as an agent or fiduciary of the Partnership Parties and (c) the engagement of the Underwriter in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, each of the Partnership Parties agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether the Underwriter has advised or is currently advising the Partnership Parties on related or other matters). Each of the Partnership Parties agrees that it will not claim that the Underwriter has rendered advisory services of any nature or respect, or that the Underwriter owes an agency, fiduciary or similar duty to the Partnership Parties, in connection with the transactions contemplated by this Agreement or the process leading thereto.
14. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Partnership Parties and the Underwriter with respect to the subject matter hereof.
15. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
16. Judicial Proceedings.
(a) The Partnership Parties irrevocably (i) agree that any legal suit, action or proceeding against the Partnership Parties arising out of or based upon this Agreement, the transactions contemplated hereby or alleged violations of the securities laws of the United States or any state in the United States may be instituted in any New York court, (ii) waive, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding in any New York court and (iii) submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each of the Partnership Parties has appointed ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) LLP, New York, New York, as its authorized agent (the “Authorized Agent”), upon whom process may be served in any such action arising out of or based on this Agreement, the transactions contemplated hereby or any alleged violation of the securities laws of the United States or any state in the United States which may be instituted in any New York court, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable. The Partnership Parties represent and warrant that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Partnership Parties shall be deemed, in every respect, effective service of process upon the Partnership Parties.
(b) If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriter could purchase United States dollars with such other currency in the City of New York on the Business Day proceeding that on which final judgment is given. The obligations of the Partnership Parties in respect of any sum due from it to the Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first Business Day, following receipt by the Underwriter of any sum adjudged to be so due in such other currency, on which (and only to the extent that) the Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency; if the United States dollars so purchased are less than the sum originally due to the Underwriter hereunder, the Partnership Parties agree, as a separate obligation and notwithstanding any such judgment, that the party responsible for such judgment shall indemnify the Underwriter against such loss. If the United States
dollars so purchased are greater than the sum originally due to the Underwriter hereunder, the Underwriter agrees to pay to the Partnership Parties an amount equal to the excess of the dollars so purchased over the sum originally due to the Underwriter hereunder.
17. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same agreement.
18. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
19. Definitions. The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus dated November 1, 2012, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto, and (iv) the information set forth on Schedule IV hereto.
“Effective Date” shall mean each date and time that the Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” means 4:35 p.m. (Eastern time) on November 1, 2012.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus referred to in Section 1(a) hereof that is used prior to the filing of the Prospectus.
“Prospectus” shall mean the prospectus relating to the Units that is first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in Section 1(a) hereof, including exhibits and financial statements and any prospectus relating to the Units that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended at the Execution Time and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective prior to the Closing Date, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be.
“Rule 158,” “Rule 163,” “Rule 164,” “Rule 172,” “Rule 175(b),” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 430B,” “Rule 462,” and “Rule 433” refer to such rules under the Act.
“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in Section 1(a) hereof.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Partnership Parties and the Underwriter.
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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Title: Attorney-in-fact | |
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▇▇▇▇▇ ▇▇ LLC | |
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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Title: Attorney-in-fact | |
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GOLAR PARTNERS OPERATING LLC | |
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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Title: Attorney-in-fact | |
[Signature Page to Underwriting Agreement]
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The foregoing Agreement is hereby |
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confirmed and accepted as of the |
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date first above written. |
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LLC |
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/s/ ▇▇ ▇▇▇▇▇▇ |
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Name: ▇▇ ▇▇▇▇▇▇ |
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Title: Managing Director |
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[Signature Page to Underwriting Agreement]
SCHEDULE I
Operating Subsidiaries
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Name |
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Jurisdiction of Organization |
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Ownership |
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Golar Maritime (Asia) Inc. |
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Republic of Liberia |
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100 |
% |
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Oxbow Holdings Inc. |
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British Virgin Islands |
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100 |
% |
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Aurora Management Inc. |
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Republic of Liberia |
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90 |
% |
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Faraway Maritime Shipping Company |
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Republic of Liberia |
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60 |
% |
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Golar 2215 UK Ltd. |
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United Kingdom |
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100 |
% |
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Golar Spirit UK Ltd. |
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United Kingdom |
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100 |
% |
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Golar Serviços de Operação de Embarcaçŏes Ltda. |
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Brazil |
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100 |
% |
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Golar LNG 2215 Corporation |
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Republic of The ▇▇▇▇▇▇▇▇ Islands |
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100 |
% |
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Golar LNG 2220 Corporation |
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Republic of The ▇▇▇▇▇▇▇▇ Islands |
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100 |
% |
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Golar Winter UK Ltd. |
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United Kingdom |
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100 |
% |
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Golar LNG Holding Corporation |
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Republic of The ▇▇▇▇▇▇▇▇ Islands |
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100 |
% |
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Golar Freeze Holding Co. |
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Republic of The ▇▇▇▇▇▇▇▇ Islands |
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100 |
% |
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Golar Freeze (UK) Ltd. |
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United Kingdom |
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100 |
% |
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Golar Spirit Co. |
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Republic of The ▇▇▇▇▇▇▇▇ Islands |
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100 |
% |
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▇▇▇▇▇ ▇▇▇▇▇▇▇ Corp. |
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Republic of The ▇▇▇▇▇▇▇▇ Islands |
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100 |
% |
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Gas Solutions Corp. |
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Republic of The ▇▇▇▇▇▇▇▇ Islands |
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100 |
% |
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Golar LNG (Singapore) Pte Ltd. |
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Singapore |
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100 |
% |
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PT Golar Indonesia |
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Republic of Indonesia |
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49 |
% |
SCHEDULE II
Schedule of Issuer Free Writing Prospectuses included in the Disclosure Package
None.
SCHEDULE III
Parties to Deliver Lock-up Letters
(1) Golar LNG Limited
(2) Golar LNG Energy Limited
(3) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
(4) Tor Olav Troim
(5) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(6) ▇▇▇▇ ▇▇▇▇▇▇ Aas
(7) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(8) ▇▇▇▇▇▇▇ ▇▇▇▇
(9) ▇▇▇▇▇ ▇▇▇▇▇▇
(10) ▇▇▇▇ ▇▇▇▇▇, ▇▇.
(11) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(12) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SCHEDULE IV
1. Number of firm units: 4,300,000
2. Public offering price: Variable price offering; $30.85 initial price to public
EXHIBIT A
FORM OF LOCK-UP LETTER
November 1, 2012
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), among Golar LNG Partners LP (the “Partnership”), ▇▇▇▇▇ ▇▇ LLC (the “General Partner”) and Golar Partners Operating LLC, and you (the “Underwriter”), relating to an underwritten public offering of common units representing limited partner interests in the Partnership (the “Common Units”).
In order to induce you to enter into this Agreement, the undersigned will not, without the prior written consent of the Underwriter, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any Common Units or any securities convertible into, or exercisable or exchangeable for such Common Units, or publicly announce an intention to effect any such transaction, for a period of 45 days after the date of the Underwriting Agreement, other than Common Units disposed of as bona fide gifts approved by the Underwriter (provided that the transferee agrees to be bound by the terms hereof).
Notwithstanding the foregoing, the restrictions herein shall not apply to transactions relating to the Common Units acquired in open market transactions after completion of the public offering, provided that with respect to any proposed subsequent sales of Common Units acquired in such open market transactions, it shall be a condition to such proposed subsequent sales that no filing by any party or its affiliates under the Exchange Act shall be required or shall be voluntarily made in connection with such sales.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
EXHIBIT B
Vessels
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Vessel |
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Owner (Ownership Interest) |
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Jurisdiction of Registration |
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▇▇▇▇▇ ▇▇▇▇ |
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Faraway Maritime Shipping Company (100% ownership) |
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Liberia |
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Methane Princess |
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A&L CF June (3) Limited (100% ownership)
Golar LNG 2215 Corporation (100% leasehold interest)
Golar 2215 UK Ltd (100% sub-leasehold interest) |
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▇▇▇▇▇▇▇▇ Islands |
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Golar Spirit |
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Golar Spirit Corporation (100% ownership) |
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▇▇▇▇▇▇▇▇ Islands |
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Golar Winter |
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Lloyds TSB Maritime Leasing (No. 13) Limited (100% ownership)
Golar LNG 2220 Corporation (100% leasehold interest)
Golar Winter UK Ltd (100% sub-leasehold interest) |
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▇▇▇▇▇▇▇▇ Islands |
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Golar Freeze |
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Golar Freeze UK Holding Co. |
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▇▇▇▇▇▇▇▇ Islands |
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Nusantara ▇▇▇▇▇ ▇▇▇▇ |
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PT Golar Indonesia |
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Indonesia |
EXHIBIT C-1
FORM OF OPINION OF ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (NEW YORK) LLP
(i) Formation and Qualification. Each of the Partnership Parties and each subsidiary of the Partnership listed on Schedule I that is organized under the laws of the Republic of Liberia or the Republic of The ▇▇▇▇▇▇▇▇ Islands (the “Covered Laws,” and each a “Covered Law”) (such subsidiaries, the “Covered Subsidiaries” and, together with the Partnership Parties, the “Covered Entities”) is a limited partnership, limited liability company or corporation, as applicable, validly existing in good standing under the laws of its respective jurisdiction of formation or incorporation with full company, corporate or partnership power, as the case may be, and authority to own or lease its properties, to enter into this Agreement and the Operative Agreements and to consummate the transactions contemplated thereby, and to conduct its business, in each case in all material respects as described in the Disclosure Package and the Prospectus.
(ii) Ownership of the General Partner. Golar owns of record 100% of the limited liability company interests in the General Partner; such limited liability company interests have been duly authorized and validly issued in accordance with the General Partner LLC Agreement and are fully paid (to the extent required under the General Partner LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 20, 31, 40 and 49 of the ▇▇▇▇▇▇▇▇ Islands LLC Act and except as may otherwise be provided in the General Partner LLC Agreement).
(iii) Ownership of the General Partner Interest in the Partnership. The General Partner owns of record a 2.0% general partner interest in the Partnership and is the sole general partner of the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the Partnership Agreement, and, to such counsel’s knowledge, the General Partner beneficially owns such general partner interest free and clear of all Liens (except for restrictions on transferability as described in the Partnership Agreement, the Disclosure Package or the Prospectus or under applicable securities laws).
(iv) Ownership of Sponsor Units and the Incentive Distribution Rights. Golar owns all of the Sponsor Units and the General Partner and Golar Energy own all of the Incentive Distribution Rights. All of the Sponsor Units, and the limited partner interests represented thereby, and the Incentive Distribution Rights have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 30, 41, 51 and 60 of the ▇▇▇▇▇▇▇▇ Islands LP Act and subject to the provisions of the Partnership Agreement); and to such counsel’s knowledge, the General Partner beneficially owns its Incentive Distribution Rights free and clear of all Liens (except restrictions on transferability under applicable securities laws as described in the Disclosure Package and the Prospectus or with respect to the Incentive Distribution Rights).
(v) Ownership of the Operating Company. The Partnership owns of record 100% of the membership interests in the Operating Company; such membership interests have been duly authorized and validly issued in accordance with the Operating Company LLC Agreement and
are fully paid (to the extent required under the Operating Company LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 20, 31,40 and 49 of the ▇▇▇▇▇▇▇▇ Islands LLC Act and except as may otherwise be provided in the Operating Company LLC Agreement); and to such counsel’s knowledge, the Partnership beneficially owns such membership interests free and clear of all Liens (except for restrictions on transferability as described in the Disclosure Package or the Prospectus).
(vi) Ownership of the Covered Subsidiaries. The entities set forth on a schedule to such counsel’s opinion own 100% of the equity interests in the Covered Subsidiaries; to such counsel’s knowledge, such equity interests have been duly authorized and have been validly issued in accordance with the organizational documents of each Covered Subsidiary, as amended or restated prior to the Closing Date, and are fully paid (to the extent required under the organizational documents of each Covered Subsidiary) and nonassessable (except as such nonassessability may be affected by a Covered Law and subject to the provisions of the applicable organizational documents); and, to such counsel’s knowledge, the Operating Company, Golar Maritime (Asia) Inc. or Golar LNG Holding Co., as the case may be, beneficially owns such equity interests free and clear of all Liens other than the Liens pursuant to the Credit Agreement and related security agreements disclosed or referred to in the Disclosure Package and the Prospectus.
(vii) No Preemptive Rights, Registration Rights or Options. To such counsel’s knowledge, except as described in or incorporated by reference into the Disclosure Package or the Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any other restriction upon the voting or transfer of, any limited partner interests in the Partnership. To the knowledge of such counsel, or except as described in or incorporated by reference into the Disclosure Package or the Prospectus, there are no outstanding options or warrants to purchase (A) any Common Units, Subordinated Units, Incentive Distribution Rights or other interests in the Partnership, (B) any membership interests in the General Partner or the Operating Company, or (C) any equity interests in any Covered Subsidiary.
(viii) Authority and Authorization. The Partnership has all requisite limited partnership power and authority to issue, sell and deliver the Units in accordance with and upon the terms and conditions set forth in this Agreement, the Registration Statement and the Prospectus. Each of the Partnership Parties has all requisite limited partnership or limited liability company power, as the case may be, and authority to execute and deliver this Agreement and perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the Operative Agreements by the Partnership Parties have been duly authorized by all necessary limited partnership or limited liability company action, as the case may be, of such Partnership Parties. When the Units are issued against payment therefor in accordance with the terms and conditions of this Agreement, the Partnership Agreement and the Prospectus, the Units will be duly authorized and validly issued in accordance with the Partnership Agreement, and will be fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 30, 41, 51 and 60 of the ▇▇▇▇▇▇▇▇ Islands Limited Partnership Act and except as may otherwise be provided in the Partnership Agreement).
(ix) Authorization, Execution and Delivery of this Agreement and the Operative Agreements. This Agreement and the Operative Agreements to which any of the Partnership Parties is a party have been validly executed and delivered by each of the Partnership Parties.
(x) Enforceability of the Partnership Agreement. The Partnership Agreement constitutes a valid and legally binding obligation of the General Partner, Golar and Golar Energy, enforceable against each of the General Partner, Golar and Golar Energy in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that rights to indemnification and contribution thereunder may be limited by securities laws or considerations of public policy relating thereto.
(xi) Enforceability of the GP LLC Agreement. The GP LLC Agreement constitutes a valid and legally binding obligation of Golar, enforceable against Golar in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that rights to indemnification and contribution thereunder may be limited by securities laws or considerations of public policy relating thereto.
(xii) Enforceability of the Operating Company LLC Agreement. The Operating Company LLC Agreement constitutes a valid and legally binding obligation of the Partnership, enforceable against the Partnership in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that rights to indemnification and contribution thereunder may be limited by securities laws or considerations of public policy relating thereto.
(xiii) Vessel Ownership and Registration. The vessels ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ Spirit, Golar Winter, Methane Princess and the Golar Freeze are registered under the laws of the jurisdiction set forth opposite its name on Exhibit C hereto in the sole ownership of the entity identified on Exhibit B hereto, free and clear of all Liens of record except:
(A) for ▇▇▇▇▇ ▇▇▇▇, a First Preferred Mortgage dated January 6, 2000 in favor of Indosuez Asia Shipfinance Services Limited in the total amount of US$419,500,000 and interest and performance of mortgage covenants;
(B) for Golar Spirit, a First Preferred Mortgage dated March 29, 2011 in favor of Nordea Bank Norge ASA, as Security Agent and Trustee, in the total amount of US$310,500,000 plus interest, costs and performance of mortgage covenants, and a Second Preferred Mortgage dated March 29, 2011 in favor of Santander Asset Finance Plc, as Mortgagee and Trustee,
in the amount of GBP68,736,648 plus interest, costs and performance of mortgage covenants;
(C) for Methane Princess, a First Preferred Mortgage dated January 18, 2011 in favor of Golar LNG 2215 Corporation, as Mortgagee and Trustee, in the total amount of US$310,500,000 and the performance of the express mortgage covenants, and assigned to Nordea Bank Norge ASA pursuant to an Assignment of First Preferred Mortgage dated January 18, 2011; and
(D) for Golar Freeze, a First Preferred Mortgage dated March 29, 2011 in favor of DnB NOR Bank ASA, as Security Agent and Trustee, in the total amount of US$128,160,786.22 plus interest, costs and performance of mortgage covenants.
(xiv) No Conflicts. None of (i) the execution, delivery and performance of this Agreement or the Operative Agreements by the Partnership Parties and the performance by the Partnership Parties of their respective obligations hereunder or thereunder or (ii) the consummation of the transactions contemplated hereby or thereby, including the sale by the Partnership of the Units to the Underwriter, (a) will conflict with or constitute a violation of any limited partnership agreement, limited liability company agreement or other organizational documents of any Partnership Entity organized under a Covered Law, (b) violate any Covered Laws or (c) will violate any judgment, order or decree known to such counsel of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority situated in, the Republic of Liberia or the Republic of The ▇▇▇▇▇▇▇▇ Islands directed to any of the Partnership Entities in a proceeding before such court, regulatory body, administrative agency, governmental body, arbitrator or other authority in the Republic of the ▇▇▇▇▇▇▇▇ Islands or the Republic of Liberia to which any of them is a party.
(xv) No Consents. No permit, consent, approval, authorization, order, registration, filing or qualification of or with any governmental agency or body of the Republic of The ▇▇▇▇▇▇▇▇ Islands or the Republic of Liberia having jurisdiction over any of the Partnership Parties or any of their respective properties is required in connection with the execution and delivery by the Partnership Parties of this Agreement, the Operative Agreements, the consummation of the transactions contemplated hereby or thereby or the performance by the Partnership Parties of their obligations hereunder or thereunder, including the sale by the Partnership of the Units to the Underwriter.
(xvi) Permits. To the knowledge of such counsel, no Governmental Licenses (as such term is defined in Section 1(ff) hereof) of, or declarations or filings with, any governmental or regulatory authorities of the Republic of Liberia or the Republic of The ▇▇▇▇▇▇▇▇ Islands are required for any of the Partnership Entities to own or lease its properties and to conduct its business in the manner described in the Prospectus, other than such permits, consents, licenses, franchises, concessions, certificates and authorizations, declarations or filings with any ▇▇▇▇▇▇▇▇ Islands or Liberian governmental authority currently held or filed by any of the Partnership Entities.
(xvii) Distribution Restrictions. No Covered Subsidiary is prohibited under its organizational documents from paying any dividends to the Operating Company, from making any other distribution on such subsidiary’s equity interests, from repaying to the Partnership or the Operating Company any loans or advances to such subsidiary from the Partnership or the Operating Company or from transferring any of such subsidiary’s property or assets to the Partnership or the Operating Company or any other subsidiary of the Partnership or the Operating Company, except as disclosed in (including by incorporation by reference) or contemplated by the Disclosure Package and the Prospectus.
(xviii) Accuracy of Statements. The statements in the Registration Statement and Prospectus under the captions “Non-United States Tax Considerations-▇▇▇▇▇▇▇▇ Islands Tax Consequences” and “Service of Process and Enforcement of Civil Liabilities,” and the statements incorporated in the Prospectus from the Partnership’s annual report on Form 20-F for the fiscal year ended December 31, 2011 filed with the Commission on April 27, 2012 under the caption “Item 10.E. Taxation-Non-United States Tax Considerations-▇▇▇▇▇▇▇▇ Islands Tax Consequences” insofar as they purport to constitute summaries of a Covered Law or legal conclusions as to a Covered Law, fairly describe in all material respects the portions of the statutes and regulations addressed thereby, subject to the qualifications and assumptions stated therein.
(xix) No Additional Liability. The Operating Company constitutes a legal entity separate from its members; the debts and obligations of the Operating Company, whether arising in contract, tort or otherwise, are solely the debts, obligations and liabilities of the Operating Company; no member or manager of the Operating Company is obligated personally for any debts, obligations or liabilities of the Operating Company solely by reason of being a member or acting as manager of the Operating Company; and, accordingly, the Partnership is not obligated personally for any debts, obligations or liabilities of the Operating Company solely by reason of the Partnership being a member or acting as a manager of the Operating Company, except to the extent (i) of its capital invested or committed but not contributed or (ii) that any such debts or obligations are expressly assumed under the Operating Company LLC Agreement or otherwise in writing by the Partnership. Under the ▇▇▇▇▇▇▇▇ Islands LP Act, a limited partner of the Partnership is not liable for the obligations of the Partnership unless he or she is also a general partner or, in addition to the exercise of the rights and powers of a limited partner, he or she participates in the control of the business. However, if the limited partner does participate in the control of the business of the Partnership, he or she is liable only to persons who transact business with the Partnership reasonably believing, based upon the limited partner’s conduct, that the limited partner is a general partner of the Partnership.
(xx) Choice of Law. The choice of New York law to govern this Agreement constitutes a valid choice of law under the law of the Republic of The ▇▇▇▇▇▇▇▇ Islands.
(xxi) Non-Exclusive Jurisdiction. The submission by the Partnership Parties to the non-exclusive jurisdiction of any Federal or state court in the Borough of Manhattan, the City of New York, is a valid submission under the law of the Republic of The ▇▇▇▇▇▇▇▇ Islands.
(xxii) Enforcement of Judgments. A judgment granted by a foreign court against the Partnership Parties may be recognized in the Republic of The ▇▇▇▇▇▇▇▇ Islands, so long as the
foreign judgment grants or denies recovery of a sum of money, and is final and conclusive and enforceable where rendered even though an appeal therefrom is pending, or subject to appeal. A foreign judgment is not conclusive if: (i) the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law, (ii) the foreign court did not have personal jurisdiction over the defendant, (iii) the foreign court did not have jurisdiction over the subject matter, or (iv) the foreign court does not recognize or enforce the judgments of any other foreign nation. A foreign judgment need not be recognized if: (i) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend, (ii) the judgment was obtained by fraud, (iii), the cause of action on which the judgment is based is repugnant to the public policy of the Republic of The ▇▇▇▇▇▇▇▇ Islands, (iv) the judgment conflicts with another final and conclusive judgment, (v) the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in the court, or (vi) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Partnership Entities and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, and (C) state that their opinion is limited to the laws of the Republic of Liberia and the Republic of The ▇▇▇▇▇▇▇▇ Islands.
EXHIBIT C-2
FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
(i) The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (excluding the effect of Rule 424(b)(8)); to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or threatened by the Commission.
(ii) The Registration Statement, on the Effective Date, and the Prospectus, when filed with the Commission pursuant to Rule 424(b) and on the date hereof, appeared, on their face to be appropriately responsive, in all material respects, to the requirements of the Act, except that in each case such counsel expresses no opinion with respect to the financial statements and related schedules (including the notes and schedules thereto and the auditors’ reports thereon), and any other financial or accounting data contained in or omitted from the Registration Statement or the Prospectus.
(iii) To the knowledge of such counsel, other than as set forth in the Partnership Agreement, there are no contracts, agreements or understandings between any of the Partnership Entities and any person granting such person the right to have any securities registered pursuant to the Registration Statement.
(iv) Assuming that the Purchase Agreement and the Unit Purchase Agreement have been duly authorized and validly executed and delivered by Golar, Golar Energy and each of the Partnership Entities party thereto, the Purchase Agreement and the Unit Purchase Agreement constitute a valid and legally binding obligation of Golar, Golar Energy and such Partnership Entities, as applicable, enforceable against each of them in accordance with its respective terms, provided that (i) the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (ii) public policy, applicable law relating to fiduciary duties and indemnification and implied covenants of good faith and fair dealing.
(v) The description of the United States federal statutes and regulations incorporated by reference in the Prospectus from the Partnership’s Annual Report on Form 20-F for the year ended December 31, 2011 (the “2011 Form 20-F”) under the captions “Item 4. Information on the Partnership—Business Overview—Environmental and Other Regulation—United States Environmental Regulation of LNG Vessels” and “—Vessel Security Regulations,” constitute accurate summaries of such statutes and regulations in all material respects, subject to the qualifications and assumptions stated therein.
(vi) The statements in the Disclosure Package and the Prospectus under the captions “Our Cash Distribution Policy and Restrictions on Distributions” and “Description of the Common Units” and the statements incorporated by reference in the Prospectus from the 2011
Form 20-F under the caption “Item 7.B. Related Party Transactions—Omnibus Agreement,” insofar as they constitute descriptions of agreements, fairly describe in all material respects the portions of the agreements addressed thereby.
(vii) The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. that is filed as Exhibit 8.1 to the Registration Statement is confirmed, and the Underwriter may rely upon such opinion as if it were addressed to them.
(viii) The Partnership is not, and after giving effect to the offering and sale of the Units, the Partnership will not be, an “investment company” as defined in the Investment Company Act.
(ix) Insofar as matters of U.S. Federal law and New York State law are concerned, to the knowledge of such counsel, there are no (i) legal or governmental proceedings pending or threatened to which any of the Partnership Entities is a party or to which any of their respective properties is subject that are required to be described in the Registration Statement or the Prospectus but are not so described, or (ii) agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required by the Act.
In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon representations and warranties of the Partnership Parties, upon certificates of officers and employees of the Partnership Entities and upon information obtained from public officials, (ii) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, (iii) state that its opinion is limited to matters governed by federal law and the applicable laws of the State of New York and (iv) state that they express no opinion with respect to (a) any permits to own or operate any real or personal property or (b) any state or local, estate, gift or alternative minimum tax considerations concerning the ownership or disposition of the Units.
In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Partnership Entities, and the independent registered public accounting firm for the Partnership, the Underwriter and its counsel, at which the contents of the Registration Statement, the Disclosure Package and the Prospectus and related matters were discussed and, although they have not independently verified, are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in paragraphs (v), (vi) and (vii) above), on the basis of the foregoing (relying with respect to factual matters to the extent they deem appropriate upon statements by officers and other representatives of the Partnership Entities), no facts have come to such counsel’s attention that have led them to believe that
(A) the Registration Statement, at the Effective Date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
(B) the Disclosure Package, as of the Execution Time (which we have assumed, with your permission, is a time prior to the time of the first sale of the Units by the Underwriter), contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
(C) the Prospectus, as of its date and as of the applicable Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
it being understood that such counsel need not express any statement or belief with respect to (i) the financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon included in the Registration Statement, the Disclosure Package or the Prospectus, (ii) any other financial or accounting data, and included in, or excluded from, the Registration Statement, the Disclosure Package or the Prospectus or (iii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement.
EXHIBIT C-3
FORM OF OPINION OF ▇▇▇▇▇▇ WESTWOOD & RIEGELS
(i) Formation and Qualification. The subsidiary of the Partnership listed on Schedule I that is organized under the laws of the British Virgin Islands (the “BVI Subsidiary”) is a company duly registered with limited liability for an unlimited duration and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation with full power and authority to own or lease and to operate its properties currently owned or leased and to conduct its business as currently conducted, in each case as described in the Disclosure Package and the Prospectus. The BVI Subsidiary is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction set forth on a schedule to such counsel’s opinion, except where the failure to be so qualified or registered would not, individually or in the aggregate, reasonably be expected to (i) have a Material Adverse Effect, or (ii) subject the limited partners of the Partnership to any material liability or disability.
(ii) Ownership of the BVI Subsidiary. The Partnership and the Operating Company collectively own, directly or indirectly, 100% of the equity interests in the BVI Subsidiary; such equity interests have been duly authorized and been validly issued in accordance with the organizational documents of the BVI Subsidiary and are fully paid (to the extent required under the organizational documents of the BVI Subsidiary) and nonassessable; and the Partnership and the Operating Company owns such equity interests free and clear of all Liens other than the Liens pursuant to the credit agreements and related security agreements disclosed or referred to in the Disclosure Package and the Prospectus.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Partnership Entities and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, and (C) state that their opinion is limited to the laws of the British Virgin Islands.
EXHIBIT C-4
FORM OF OPINION OF ▇▇▇▇▇▇ REDO ▇▇▇▇▇▇▇ ADVOGADOS
(i) Formation and Qualification. The subsidiary of the Partnership listed on Schedule I that is organized under the laws of Brazil (the “Brazilian Subsidiary”) has been duly formed and is validly existing as a limited liability company in good standing under the laws of its jurisdiction of formation with full power and authority to own or lease and to operate its properties currently owned or leased and to conduct its business as currently conducted, in each case as described in the Disclosure Package and the Prospectus. The Brazilian Subsidiary is duly qualified to do business as a foreign limited liability company and is in good standing under the laws of each jurisdiction set forth on a schedule to such counsel’s opinion, except where the failure to be so qualified or registered would not, individually or in the aggregate, reasonably be expected to (i) have a Material Adverse Effect, or (ii) subject the limited partners of the Partnership to any material liability or disability.
(ii) Ownership of the Brazilian Subsidiary. The Partnership and the Operating Company collectively own, directly or indirectly, 100% of the equity interests in the Brazilian Subsidiary; such equity interests have been duly authorized and been validly issued in accordance with the organizational documents of the Brazilian Subsidiary and are fully subscribed and paid in (to the extent required under the organizational documents of the Brazilian Subsidiary); and the Partnership and the Operating Company own such equity interests free and clear of all Liens other than the Liens pursuant to the credit agreements and related security agreements disclosed or referred to in the Disclosure Package and the Prospectus.
(iii) Accuracy of Statements. The statements in the Partnership’s Annual Report on Form 20-F for the year ended December 31, 2011 under “Item 4 — Information on the Partnership — Business Overview — Taxation of the Partnership — Brazilian Taxation,” insofar as they purport to constitute summaries of law or legal conclusions, fairly describe in all material respects the portions of the statutes and regulations addressed thereby (except for the representations and statements of fact of the Partnership included in such discussion, as to which such counsel need not comment).
In rendering such opinion, such advisor may (A) rely in respect of matters of fact upon certificates of officers and employees of the Partnership Entities and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, and (C) state that their opinion is limited to the laws of Brazil.
EXHIBIT C-5
FORM OF OPINION OF ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (UK) LLP
(i) Formation and Qualification. Each of the Partnership Parties and each subsidiary of the Partnership listed on Schedule I that is organized under the laws of the United Kingdom (the “UK Covered Laws,” and each a “UK Covered Law”) (such subsidiaries, the “UK Covered Entities”) is a company incorporated with limited liability and is validly existing as a limited liability company under the laws of its respective jurisdiction of formation or incorporation with capacity to own or lease and to operate its properties and to conduct its business, in each case in all material respects as described in the Disclosure Package and the Prospectus. The UK Covered Entities are not in liquidation or administration and a winding-up petition has not been presented against any UK Covered Entity.
(ii) Ownership of the UK Covered Entities. The register of members of each UK Covered Entity shows that the Operating Company owns 100% of the issued equity interests in the UK Covered Entities; such equity interests have been validly issued in accordance with the organizational documents of each UK Covered Entity and, to such counsel’s knowledge, are fully paid up; and, to such counsel’s knowledge, the Operating Company owns such equity interests free and clear of all Liens other than the Liens pursuant to the Credit Agreement and related security agreements disclosed or referred to in the Disclosure Package and the Prospectus.
(iii) No Preemptive Rights, Registration Rights or Options. Except as described in the Registration Statement, the Disclosure Package or the Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any equity interests in any UK Covered Entity, in each case pursuant to their respective organizational documents. To the knowledge of such counsel, there are no outstanding options or warrants to purchase any equity interests in any UK Covered Entity.
(iv) Permits. No Governmental Licenses (as such term is defined in Section 1(ff) hereof) of, or declarations or filings with, any governmental agency of the United Kingdom are required for any of the UK Covered Entities to own or lease its properties and to conduct its business in the manner described in the Prospectus.
(v) Distribution Restrictions. No UK Covered Entity is prohibited under its organizational documents, directly or indirectly, from paying any distributions to the Operating Company or to Golar LNG Holding Co., from repaying to the Partnership, the Operating Company or to Golar LNG Holding Co., as applicable, any loans or advances to such UK Covered Entity from the Partnership, the Operating Company or Golar LNG Holding Co., as applicable, from transferring any of such UK Covered Entity’s property or assets to the Partnership, the Operating Company or Golar LNG Holding Co. or any other subsidiary of the Partnership, the Operating Company or Golar LNG Holding Co., except as described in or contemplated by the Disclosure Package and the Prospectus.
(vi) Accuracy of Statements. The statements in the Registration Statement and Prospectus under the captions “Material Tax Considerations—United Kingdom Tax
Consequences,” and “Non-United States Tax Considerations—United Kingdom Tax Consequences,” and the statements in the Partnership’s Form 20-F under the caption “United Kingdom Taxation”, insofar as they purport to constitute summaries of UK Covered Laws or legal conclusions, fairly describe in all material respects the portions of the statutes addressed thereby, subject to the qualifications and assumptions stated therein.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Partnership Entities and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, and (C) state that their opinion is limited to the laws of the United Kingdom.
EXHIBIT C-6
FORM OF OPINION OF ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ASIA PRACTICE LLP
(i) Formation and Qualification. The subsidiary of the Partnership listed on Schedule I that is organized under the laws of Indonesia (the “Singapore Subsidiary”) is a private company limited by shares and duly incorporated and validly existing under Singapore Law with capacity under its constitutive documents to own or lease and operate its properties and to conduct its business.
(ii) Ownership of the Indonesia Subsidiary. The Operating Company owns 100% of the issued share capital of the Singapore Subsidiary (the “Shares”); the Shares have been validly issued in accordance with the articles of association of the Singapore Subsidiary and are fully paid up and are owned by the Operating Company free and clear of all liens, encumbrances, security interests, charges, except (i) as otherwise described in, referred to or disclosed in the Supplementary Prospectus, (ii) any liens pursuant to credit agreements, security agreements or financing documents described in, referred to or disclosed in the Supplementary Prospectus, and (iii) restrictions on transferability contained in the articles of association of the Singapore Subsidiary.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Partnership Entities and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, and (C) state that their opinion is limited to the laws of Singapore.
EXHIBIT C-7
FORM OF OPINION OF HANAFIAH PONGGAWA & PARTNERS
(i) Formation and Qualification. PT Golar Indonesia (the “Indonesia Subsidiary”) is (i) a limited liability company duly established and validly existing under the laws of the Republic of Indonesia, (ii) a separate legal entity, (iii) subject to suit in its own name; (iv) an entity separate from, and not a department of the Republic of Indonesia or the Government of the Republic of Indonesia; and (v) has the capacity under its formation documents to own or lease and operate its properties and to conduct its business as currently conducted.
(ii) Ownership of the Indonesia Subsidiary. All of the voting shares of the Indonesia Subsidiary (representing forty nine percent (49%) of the issued shares capital of the Indonesia Subsidiary) is owned by Golar LNG (Singapore) Pte. Ltd; the remaining fifty one percent (51%) of the issued share capital of the Indonesia Subsidiary is owned by PT Persona Sentra Utama. All issued shares of the Indonesia Subsidiary have been validly issued in accordance with its formation documents, are fully paid up and are free and clear of all liens, encumbrances, security interests, charges, except (i) as otherwise described in, referred to or disclosed in the Supplementary Prospectus, (ii) any liens pursuant to credit agreements, security agreements or financing documents described in, referred to or disclosed in the Supplementary Prospectus, and (iii) restrictions on transferability contained in the formation document of the Indonesia Subsidiary.
(iii) Vessel Ownership and Registration. The vessel Nusantara ▇▇▇▇▇ ▇▇▇▇ is registered as a sea going vessel under the laws of the jurisdiction set forth opposite its name on Exhibit C hereto in the sole ownership of the entity identified on Exhibit B hereto, free and clear of all Liens of record, except with respect to Liens (a) otherwise described in the Prospectus, (b) pursuant to credit agreements, security agreements or financing documents described in, referred to or disclosed in the Prospectus and (c) restrictions on transferability contained in the Indonesian Subsidiary’s organizational documents.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Partnership Entities and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, and (C) state that their opinion is limited to the laws of Indonesia.
EXHIBIT D
FORM OF PRINCIPAL FINANCIAL OFFICER CERTIFICATE
The undersigned, the Principal Financial Officer acting for Golar LNG Partners LP, a limited partnership organized under the laws of the Republic of The ▇▇▇▇▇▇▇▇ Islands (the “Partnership”), hereby certifies pursuant to Section 6(o) of that certain Underwriting Agreement dated November 1, 2012 (the “Underwriting Agreement”), by and among the Partnership, ▇▇▇▇▇ ▇▇ LLC, a limited liability company organized under the laws of the Republic of The ▇▇▇▇▇▇▇▇ Islands, and Golar Partners Operating LLC, a limited liability company organized under the laws of the Republic of The ▇▇▇▇▇▇▇▇ Islands, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (the “Underwriter”), that as of the date hereof:
1. He is responsible for the Partnership’s financial accounting and is familiar with the internal accounting records of the Partnership.
2. To his knowledge, (i) at September 30, 2012, there was no decrease in the consolidated net current assets or decrease in partners’ capital of the Partnership (without regard to movements in cash and cash equivalents and accounting revaluations associated with the movement of foreign exchange rates or interest rates, including changes in fair value and/or changes due to hedging ineffectiveness, if any, of derivatives and assets and liabilities denominated in a foreign currency, and changes in the provision for income taxes of the Partnership; excluding impairment charges, if any; and, without regard to cash distributions declared and paid in the period between July 1, 2012 through September 30, 2012 but relating to reporting periods ending prior to June 30, 2012. However, to include an adjustment to consolidated net current assets and partners’ capital as of September 30, 2012 for the effect of recognizing a reduction for a cash distribution based on the most recent distribution paid, but prorated for the period from July 1, 2012 through September 30, 2012) as compared to the amounts shown in the June 30, 2012 balance sheet included in the Registration Statement, except in all instances for decreases that the Disclosure Package and the Prospectus disclose have occurred or may occur or (ii) for the period from July 1, 2012 through September 30, 2012, there was no decrease, as compared to the corresponding period in the preceding year, in operating revenues net of vessel operating expenses of the Partnership (prepared using estimated foreign exchange rates for the period from July 1, 2012 through September 30, 2012).
*For the avoidance of doubt the above statements only include the effect of the Nusantara ▇▇▇▇▇ ▇▇▇▇ from the date of its acquisition by the Partnership on July 19, 2012.
3. This certificate is given to assist the Underwriter in conducting and documenting its investigation of the affairs of the Partnership in connection with the offering of the Units as proposed in the Underwriting Agreement.
Capitalized terms used herein and not otherwise defined shall have the same meaning ascribed to such terms in the Underwriting Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate this 1st day of November 2012.
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By: |
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇ | |
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Title: Principal Financial Officer | |
[Principal Financial Officer Certificate]