THIRD SUPPLEMENTAL AGREEMENT
Private & Confidential Exhibit 4.16
DATED December,11 2014
relating to a
US$1,125,000,000 Loan
to
XXXXX XXXX M2021 CORP.
XXXXX XXXX M2026 CORP.
XXXXX XXXX M2031 CORP.
XXXXX XXXX M2022 CORP.
XXXXX XXXX M2023 CORP.
XXXXX XXXX M2027 CORP.
XXXXX XXXX M2024 CORP.
GOLAR LNG NB12 CORPORATION
arranged by
THE EXPORT-IMPORT BANK OF KOREA
CITIBANK, N.A. LONDON BRANCH
KOREA FINANCE CORPORATION
NORDEA BANK NORGE ASA
DANSKE BANK A/S
SWEDBANK AB (publ)
DVB BANK SE
SKANDINAVISKA ENSKILDA XXXXXX XX (publ)
Contents
Clause Page
1 Definitions 1
2 Agreement of the Lenders and Agent 2
3 Amendments to Principal Agreement 2
4 Representations and warranties 4
5 Conditions 4
6 Finance Documents 5
7 Costs and expenses 5
8 Miscellaneous and notices 5
9 Applicable law 6
Schedule 1 Documents and evidence required as conditions precedent 7
THIS THIRD SUPPLEMENTAL AGREEMENT is dated December 11, 2014 and made BETWEEN:
(1) | XXXXX XXXX M2021 CORP., XXXXX XXXX M2026 CORP., XXXXX XXXX M2031 CORP., XXXXX XXXX M2022 CORP., XXXXX XXXX M2023 CORP., XXXXX XXXX M2027 CORP., XXXXX XXXX M2024 CORP. and GOLAR LNG NB12 CORPORATION each of the address set out in Schedule 1 to the Facilities Agreement as Borrowers; |
(2) | GOLAR LNG LIMITED of the address set out in Schedule 1 to the Facilities Agreement as Parent; and |
(3) | SWEDBANK AB (publ) of the address set out in Schedule 1 to the Facilities Agreement as Agent for and on behalf of the Finance Parties. |
WHEREAS:
(A) | This Third Supplemental Agreement is supplemental to an agreement dated 25 July 2013 (as amended by a side letter dated 4 September 2013 and as further amended by a supplemental agreement dated 1 October 2013 and a second supplemental agreement dated 28 August 2014) and made between the same parties (the Principal Agreement), whereby the Lenders agreed to make available to the Borrowers loan facilities of up to US$1,125,000,000 upon the terms and subject to the conditions therein contained. |
(B) | The Borrowers have requested the Lenders to amend the Principal Agreement to the extent set out in this Third Supplemental Agreement. |
(C) | In accordance with clause 43 (Amendments and waivers) of the Principal Agreement, the relevant Finance Parties have consented to the amendments to certain provisions of the Principal Agreement as addressed in this Agreement. That consent is strictly subject to the occurrence of the Effective Date. Accordingly the Agent is authorised to execute this Agreement on behalf of the Finance Parties. |
NOW IT IS HEREBY AGREED as follows:
1 | Definitions |
1.1 | Defined expressions |
Words and expressions defined in the Principal Agreement shall unless the context otherwise requires or unless otherwise defined herein, have the same meanings when used in this Agreement.
1.2 | Definitions |
In this Agreement, unless the context otherwise requires:
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Effective Date means the date, no later than 14 December 2014 (or such later date as the Agent acting on the instructions of the Lenders may agree), on which the Agent notifies the Borrower in writing that the Agent has received the documents and evidence specified in clause 5 and Schedule 1 in a form and substance satisfactory to it.
Facilities Agreement means the Principal Agreement as amended by this Agreement.
Relevant Parties means each Borrower and the Parent or, where the context so requires or permits, means any or all of them.
1.3 | Principal Agreement |
References in the Principal Agreement to “this Agreement” shall, with effect from the Effective Date and unless the context otherwise requires, be references to the Principal Agreement as amended by this Agreement and words such as “herein”, “hereof”, “hereunder”, “hereafter”, “hereby” and “hereto”, where they appear in the Principal Agreement, shall be construed accordingly.
1.4 | Construction |
Clauses 1.2 (Construction), 1.3 (Third party rights) and 1.4 (Finance Documents) of the Facilities Agreement and any other provision of the Facilities Agreement which, by its terms, purports to apply to all of the Finance Documents and/or any Obligor shall apply to this Agreement as if set out in it but with all necessary changes and as if references in the provision to Finance Documents referred to this Agreement. This Agreement is a Finance Document.
2 | Agreement of the Lenders and Agent |
2.1 | Agreement |
The Agent (for itself and on behalf of the Lenders), relying upon the representations and warranties on the part of each Borrower and the Parent contained in clause 4, agree with the Borrowers that, subject to the terms and conditions of this Agreement and in particular, but without prejudice to the generality of the foregoing, fulfilment on or before 14 December 2014 of the conditions contained in clause 5 and Schedule 1, the Agent and the Lenders agree to the amendment of the Principal Agreement on the terms set out in clause 3.
3 | Amendments to Principal Agreement |
3.1 | Amendments |
The Principal Agreement shall, with effect on and from the Effective Date, be (and is hereby) amended by:
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i) | deleting the definition of Change of Control in clause 1.1 (Definitions) of the Principal Agreement and replacing it as follows: |
“Change of Control occurs if:
(a) | two or more persons acting in concert or any individual person (other than World Shipholding or an Affiliate of World Shipholding approved by the Lenders and K-Sure) (i) acquire, legally and/or beneficially and either directly or indirectly, in excess of 35 per cent of the issued share capital (or equivalent) of the Parent or (ii) have the right or ability to control, either directly or indirectly, the affairs or the composition of the majority of the board of directors (or equivalent) of the Parent; |
(b) | Xx Xxxx Xxxxxxxxxx and Mr Tor Olav Troim (or, in either case, any family trust or family company or shareholding structure of the relevant individual) cease to collectively own legally and/or beneficially at least 5 per cent of the issued share capital (or equivalent) of the Parent; |
(c) | two or more persons acting in concert or any individual person (other than the Parent) (i) acquires, legally and/or beneficially and either directly or indirectly, in excess of 50 per cent of the issued share capital (or equivalent) of Golar MLP or (ii) have the right or ability to control, either directly or indirectly, the affairs of Golar MLP (other than through the right or ability to appoint the majority of the board of directors (or equivalent) of Golar MLP or, following appointment, any continuing right or ability to exercise such control through the directors so appointed); |
(d) | the Parent ceases to own legally and/or beneficially, and either directly or indirectly, at least 25 per cent of the issued share capital (or equivalent) of Golar MLP; |
(e) | the General Partner is not or ceases to be a wholly owned subsidiary of the Parent; or |
(f) | the General Partner ceases to have veto rights over major transactions of Golar MLP such as mergers and major disposals of assets. |
For the purposes of this definition, two or more persons are acting in concert if pursuant to an agreement or understanding (whether formal or informal) they actively co-operate, through the acquisition (directly or indirectly) of shares in the Parent or Golar MLP (as applicable) by any of them, either directly or indirectly to obtain or consolidate control of the Parent or Golar MLP (as applicable).”;
ii) | deleting the numbers “$25,000,000” in clause 20.1.1 (Free Liquid Assets) of the Principal Agreement and replacing them with the numbers “$50,000,000”; |
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iii) | deleting the numbers “$2,000,000” in clause 20.1.1 (Free Liquid Assets) of the Principal Agreement and replacing them with the numbers “$3,000,000”; and |
iv) | deleting the numbers “$250,000,000” in clause 20.1.3 (Consolidated Tangible Net Worth) of the Principal Agreement and replacing them with the numbers “$450,000,000”, |
and the Principal Agreement (as so amended) will continue to be binding upon each of the parties hereto upon such terms as so amended.
3.2 | Continued force and effect |
Save as amended by this Agreement, the provisions of the Principal Agreement shall continue in full force and effect and the Principal Agreement and this Agreement shall be read and construed as one instrument.
4 | Representations and warranties |
Each of the Relevant Parties represents and warrants for the benefit of the each Finance Party, each in respect of itself, that the following statements shall, on the date of this Agreement and the Effective Date, be true and accurate as if made with reference to the facts and circumstances existing on such date:
(a) | it is duly incorporated as a limited liability company or corporation (as the case may be) and has power to carry on its business as it is now being conducted and to own its property and other assets; and |
(b) | it has power to execute, deliver and perform its obligations under this Agreement and all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and performance of the same. |
5 | Conditions |
5.1 | Documents and evidence |
The agreement of the Lenders and the Agent referred to in clause 2 shall be subject to the receipt by the Agent or its duly authorised representative of the documents and evidence specified in Schedule 1 in form and substance satisfactory to the Agent.
5.2 | General conditions precedent |
The agreement of the Lenders and the Agent referred to in clause 2 shall be further subject to:
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(a) | the representations and warranties in clause 4 being true and correct on the Effective Date as if each was made with respect to the facts and circumstances existing at such time; and |
(b) | no Default having occurred and continuing at the time of the Effective Date. |
5.3 | Waiver of conditions precedent |
The conditions specified in this clause 5 are inserted solely for the benefit of the Finance Parties and may be waived by the Agent (acting on the instructions of the Majority Lenders) in whole or in part with or without conditions.
6 | Finance Documents |
The Parent confirms its consent to the amendments to the Principal Agreement contained in this agreement and each Borrower and the Parent further acknowledges and agrees, for the avoidance of doubt, that:
(c) | each of the other Finance Documents to which it is a party, and its obligations thereunder, shall remain in full force and effect notwithstanding the amendments made to the Principal Agreement by this Agreement; and |
(d) | with effect from the Effective Date, references to the “Facilities Agreement” in any of the other Finance Documents to which it is a party shall henceforth be reference to the Principal Agreement as amended by this Agreement and as from time to time hereafter amended. |
7 | Costs and expenses |
For the avoidance of doubt, clause 16 of the Facilities Agreement shall apply in respect of all reasonably incurred costs and expenses of the Finance Parties in connection with this Agreement.
8 | Miscellaneous and notices |
8.1 | Notices |
The provisions of clause 39 of the Principal Agreement shall apply to this agreement if set out herein.
8.2 | Counterparts |
This Agreement may be executed in any number of counterparts and by the different parties on separate counterparts, each of which when so executed and delivered shall be an original but all counterparts shall together constitute one and the same instrument.
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9 | Applicable law |
9.1 | Governing law |
This Agreement and any non-contractual obligations connected with it are governed by English law.
9.2 | Jurisdiction of English courts |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement or any non-contractual obligations connected with it (including a dispute regarding the existence, validity or termination of this Agreement) (a Dispute).
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
This clause 9.2 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
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Schedule 1
Documents and evidence required as conditions precedent
Documents and evidence required as conditions precedent
1 | The conditions precedent set out in item 1 of Part 1 of Schedule 3 to the Facilities Agreement. |
2 | Evidence that any process agent referred to in clause 46.2 of the Facilities Agreement has accepted its appointment in relation to this Agreement. |
3 | Evidence that the fees, commissions, costs and expenses then due from the Borrowers pursuant to clause 7 of this Agreement and clause 16 of the Facilities Agreement have been paid. |
4 | Confirmation from K-Sure that K-Sure accepts the terms of this agreement. |
5 | Such legal opinions as the Agent may reasonably require. |
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SIGNATURES
XXX XXXXXXXXX
XXXXX XXXX X0000 CORP.
By: /s/ Xxxxxxxx Xxxxxx
XXXXX XXXX X0000 CORP.
By: /s/ Xxxxxxxx Xxxxxx
XXXXX XXXX X0000 CORP.
By: /s/ Xxxxxxxx Xxxxxx
XXXXX XXXX X0000 CORP.
By: /s/ Xxxxxxxx Xxxxxx
XXXXX XXXX X0000 CORP.
By: /s/ Xxxxxxxx Xxxxxx
XXXXX XXXX X0000 CORP.
By: /s/ Xxxxxxxx Xxxxxx
XXXXX XXXX X0000 CORP.
By: /s/ Xxxxxxxx Xxxxxx
XXXXX XXX XX00 CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
THE PARENT
GOLAR LNG LIMITED
By: /s/ Xxxxxxxx Xxxxxx
THE AGENT
SWEDBANK AB (publ)
By: /s/ Per Xxxxxxxx
(for and on behalf of the Finance Parties)
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