EXHIBIT 4.4
PURCHASE AGREEMENT
This Purchase Agreement ("AGREEMENT") is entered into this 21st day of
May, 2001, by and between Osprey Maritime Limited, a Singapore company
("SELLER"), and Golar LNG Ltd., a Bermuda company ("PURCHASER"). (Seller and
Purchaser hereinafter jointly referred to as the "PARTIES" and individually as a
"PARTY").
WHEREAS, Purchaser is a wholly owned subsidiary of Seller, and
WHEREAS, Purchaser desires to purchase by way of a purchase of the
applicable holding companies, owning companies, management company and the
Seller's various claims against these entities and assignment of one newbuilding
contract all of the LNG vessels as described in Schedule 1.01 hereto (the
"VESSELS"), and related assets, joint venture interests, newbuilding commitments
and operations of Seller (together, "LNG OPERATIONS"), and
WHEREAS, the Parties agreed the terms and conditions in principle for
such a sale on 16 May, 2001,
WHEREAS, Seller desires to sell its LNG Operations to Purchaser.
NOW, THEREFORE, in consideration of the foregoing recitals and the
agreements, representations, warranties and covenants herein set forth, the
parties hereto agree as follows:
I. PURCHASE AND SALE OF LNG OPERATIONS
1.01 PURCHASE. Seller shall sell, transfer, convey, assign and
deliver to Purchaser, and Purchaser shall purchase, acquire and accept from
Seller, the shares of the companies listed in Schedule 1.01, representing
directly or indirectly all of Seller's LNG Operations (the "LNG COMPANIES") and
all of the Seller's claims for money against the LNG Companies as of 31 May
2001, free and clear of all covenants, conditions, restrictions, voting trust
arrangements, liens, charges, encumbrances, options and adverse claims or rights
whatsoever (together, "LIENS"). Where a holding company owns other companies
included within Seller's LNG Operations, the seller shall sell, and the
Purchaser shall buy the shares of the holding Company. In addition, Seller shall
assign, and Purchaser shall assume, either directly or by way of a subsidiary,
the newbuilding contract specified on Schedule 1.01 (the "NEWBUILDING
CONTRACT").
With effect from the Closing or as soon as reasonably
practicable thereafter, Purchaser shall procure the discharge of Seller from all
obligations and liabilities (whether actual or contingent) in connection with
the LNG Operations (including, without limitation, obligations and liabilities
of Seller under or in connection with the Newbuilding Contract or any
guarantees, indemnities or securities made by Seller for the benefit of the LNG
Operations.
Purchaser, either directly or through a subsidiary, further
undertakes to provide Seller with an interest free loan in the amount of
approximately USD 32,000,000 for
the purpose of financing the first instalment due under the Newbuilding Contract
provided the due date therefor occurs prior to the Closing set forth in Section
1.03.
1.02 PURCHASE PRICE. The purchase price to be paid by Purchaser for
the LNG Operations (the "PURCHASE PRICE"), shall be the sum of:
(i) USD 635,000,000 less the outstanding principal of the
loan secured against M/V "Xxxxx Xxxx" as of 31 May 2001
plus USD 2,500,000;
plus
(ii) the book value of the equity in each of the LNG
Companies as of May 31, 2001 exclusive of the book
value of the Vessels and their financing but adjusted
for the market value of Osprey Maritime (Europe) Ltd.'s
lease contract for office space in London);
plus
(iii) the amount paid as the first instalment under the
Newbuilding Contract prior to Closing (as defined in
Clause 1.03).
The Purchase Price shall be paid seven business days after the
Closing set forth in Section 1.03.
The Seller shall, no later than 3 business days prior to the
Closing, provide Purchaser with a calculation of the Purchase Price. Such
calculation shall be made on the basis of the value of the shares in the LNG
Companies and the Seller's claims against the LNG Companies as of May 31, 2001
and shall, in reasonable detail, set forth in relation to such shares:
(i) the name of the Company:
(ii) the net equity value of the applicable LNG Company as
of 31 May, 2001 (exclusive of the value of the relevant
Vessels and the financing);
and in relation to claims:
(i) the amount and currency of the claim;
(ii) the debtor LNG Company;
(iii) the applicable interest rate;
(iv) accrued interest as of 31 May 2001.
Purchaser agrees and accepts that Seller shall use USD
125,000,000 of its claim for the Purchase Price as a set-off against Seller's
obligation to pay an equal amount in consideration for the subscription of
shares in the Purchaser as per the terms of a certain subscription agreement
between the Parties.
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1.03. CLOSING. The closing (the "Closing") of the sale of the LNG
Operation to Purchaser shall take place on 31 May 2001 or such subsequent
business day in Singapore, Oslo and New York prior to 15 June 2001 as Purchaser
shall nominate to Seller.
1.04 DELIVERY AT CLOSING. At the Closing, Seller shall deliver (i)
certificates evidencing the shares of the relevant holding companies comprising
the LNG Operations, duly endorsed for transfer, (ii) notices of assignment of
the claims on the LNG Companies to be included in the purchase and (iii) an
instrument of assignment of the Newbuilding Contract, to the Purchaser. The
Parties will determine mutually which other documents or instruments each should
deliver at the Closing.
II. REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.01 Purchaser represents and warrants to Seller that Purchaser is
duly organized, validly existing and in good standing under the laws of Bermuda,
and has all requisite corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. Purchaser also
represents that the execution and delivery by it of this Agreement has been duly
authorized, and that this Agreement constitutes its legal, valid and binding
obligation, enforceable by Seller in accordance with its terms. In addition,
Purchaser's execution and delivery of this Agreement, and its consummation of
its purchase of the LNG Operations will not breach any other agreement to which
Purchaser is bound, nor will it violate its bye-laws or applicable law.
III. REPRESENTATIONS AND WARRANTIES OF SELLER
3.01 Seller represents and warrants to Purchaser that Seller is
duly organized and validly existing and in good standing under the laws of
Singapore, and has all requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. Seller
also represents that the execution and delivery by it of this Agreement has been
duly authorized, and that this Agreement constitutes its legal, valid and
binding obligation, enforceable by Purchaser in accordance with its terms. In
addition, Seller's execution and delivery of this Agreement, and, following
receipt of appropriate waivers and consents, Seller's consummation of its sale
to Purchaser of the LNG Operations will not breach any other agreement to which
Seller or any of the LNG Companies or their assets is bound, nor will it violate
its or their respective charter documents or any law, regulation or judicial
order applicable to it or to them. Seller (or the relevant holding company) has
good and marketable title to all of the issued and outstanding shares of the LNG
Companies, which constitute all of the LNG Operations, and will deliver those
shares to Purchase at the Closing, free and clear of any and all Liens.
3.02 With respect to the LNG Companies, Seller represents and
warrants to Purchaser that each of them is duly organized and validly existing
and in good standing under the laws of its jurisdiction and foreign
jurisdictions, where required, and that it is legally and contractually able to
conduct its portion of the LNG Operations and that Seller has no assets or
operations related to liquid natural gas outside of the LNG Companies and the
Newbuilding Contract, which is in full force and effect. Seller also represents
that each of the issued and outstanding shares of the LNG Companies is duly
issued, fully paid and nonassessable and held by the shareholder listed in
Schedule 1.01 and that neither Seller nor any of the LNG Companies has any
agreements or commitments to issue additional securities. Purchaser has
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disclosed to Seller the details of its ownership of joint ventures comprising
part of its LNG Operations, and has disclosed to Purchaser the charters,
management agreements, loan agreements, indebtedness and guarantees, warranting
that there are no material liabilities other than such agreements, indebtedness
and guarantees, and other arrangements relating to the vessels that are part of
the LNG Operations, as set forth in Schedule 1.01, which disclosure Purchaser
warrants to be true. Seller will provide to Purchaser such audited historical
financial statements as Purchaser may reasonably request and which are in the
possession of Seller, such financial statements to be in accordance with the
books and records of the LNG Companies and the LNG Operations and to present
fairly in all material respects the consolidated financial position of the LNG
Companies as of the respective dates and the results of operations and cash flow
for the respective periods indicated, with Seller understanding that Purchaser
will require audited historical financial information as well. As soon as
practicable, Seller will deliver to Purchaser true and complete copies of all of
the corporate records of the LNG Companies and all Vessel records. The LNG
Companies have operated in compliance with all relevant law, paid all taxes, are
subject to no environmental liabilities, face no litigation, pension or
employment liability that would result in a material adverse effect on the LNG
Operations or their value. Seller makes the following representations concerning
the Vessels.
(i) All the debt to banks and financial institutions secured by
the Vessels (other than a loan in the outstanding principal amount of
approximately USD 128,700,000 secured by a mortgage over M/V "Xxxxx Xxxx") shall
have been repaid as of Closing and the Vessels (other than M/V "Xxxxx Xxxx")
shall be free and clear of all Liens as of Closing.
(ii) All facts relating to the Vessels which could materially and
adversely affect the value of the Vessels or their operations and which would be
likely to affect the decision of a prospective buyer of the Vessels have been
disclosed to Purchaser, (ii) the vessels were built and or rebuilt of first
class design material and workmanship; (iii) each of the Vessels complies with
the specifications and operating criteria previously delivered to Purchaser;
(iv) each of the Vessels is properly documented, has an up to date ITF blue
certificate, has been constructed, operated and equipped in accordance with and
continues to comply with all applicable laws, regulations and conventions; (v)
the Vessels are in good seaworthy state of repair and each is fit for its
intended purpose; (vii) the Vessels fully comply with all the requirements of
their present class (which has been disclosed to Purchaser) with all continuous
or progressive survey cycles up to date; all class certificates and all national
and international certificates of the Vessels are clean and valid and free of
recommendations and notations; (vii) the existing program of maintenance, repair
and renewal will be continued up to the Closing; (ix) the Vessels are being
operated and managed in accordance with custom and practice and good seamanship
in effect in the area of operations and the country of registry; (x) all
insurances have been disclosed to Purchaser and are in effect.
3.03 None of the LNG Companies, except Osprey Maritime (Europe),
Ltd. ("OMEL"), owns, leases or operates any real estate, and Seller has
delivered to Purchaser the lease for OMEL's premises, which is in full force and
effect. Seller will, as soon as practicable, deliver to Purchaser a true and
correct list of each contract or agreement material to the maintenance and
operation of the LNG Operations. Seller warrants that no representation or
warranty of the Seller in this Agreement contains or will contain any untrue
statement of a material fact nor shall such representations and warranties taken
as a whole omit any statement necessary in order to make any material statement
contained herein not
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misleading. To the knowledge of Seller, there is no fact that has not been
disclosed to Purchaser that might reasonably be expected to have or result in a
material adverse effect on or with respect to the LNG Companies or the LNG
Operations.
IV. CERTAIN UNDERSTANDINGS AND AGREEMENTS
4.01 Prior to Closing, the Seller shall obtain all necessary
consents and waivers to its sale of the LNG Companies to Purchaser and shall
cause the LNG Companies to conduct their business in the ordinary course, to
maintain all insurances, and to comply with all laws. Purchaser shall also cause
each of the LNG Companies to give to authorized representatives of Purchaser
full access to their books, records, and physical facilities.
4.02 At the request of either Party, Purchaser and Seller shall
negotiate and conclude a superseding purchase agreement containing more detailed
representations, warranties and covenants. Nevertheless, until the execution and
delivery of such superseding purchase agreement, this Agreement shall be fully
valid and binding.
V. CONDITIONS TO OBLIGATIONS OF EACH PARTY
5.01 The obligation of each Party to effect the transactions
contemplated hereby shall be subject to the fulfillment, at or prior to the
Closing, of the conditions that (i) any required governmental approvals or
waivers shall have been obtained, (ii) no claim, action, suit, investigation or
other proceeding shall be pending or threatened before any court or governmental
agency relating to this Agreement.
5.02 The obligation of Purchaser to purchase the LNG Operations
shall be subject to the conditions that all of Seller's representations and
warranties shall be true as if made of the Closing, and that Seller shall have
complied with all of its covenants set forth therein, and that Seller shall have
provided to Purchaser resignations of the officers and directors of the LNG
Companies to the extent requested by Purchaser.
5.03 The obligations of Seller to sell the LNG Operations to
Purchaser shall be subject to the conditions that all of Seller's
representations and warranties shall be true as if made as of the Closing, and
that Seller shall have complied with all of its covenants set forth herein.
VI. MISCELLANEOUS
6.01 The Parties shall indemnify and hold each other harmless for
their respective breaches of their respective representations and warranties.
6.02 This Agreement may not be assigned by either of the Parties.
This Agreement shall inure to the benefit of and be binding upon the Parties and
their respective successors.
6.03 This Agreement shall be governed by Norwegian law, and the
parties agree to submit to the non-exclusive jurisdiction of the courts of
Norway in connection with any dispute arising in connections with it.
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6.04 Either Party may terminate this Agreement if the Closing has
not taken place by June 15, 2001.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be signed
as of the date first above written.
SELLER: PURCHASER
OSPREY MARITIME LIMITED GOLAR LNG. LTD.
By: /s/ Torn Haugard Xxxxxxx By: /s/ Tor Orlav Troim
----------------------------- ------------------------
Name: Torn Haugard Xxxxxxx Name: Tor Orlav Troim
Title: Director Title: Director
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SCHEDULE 1.01
Action required to acquire
Name Shareholder company
---- ----------- --------------------------
HOLDING CO
Gotass-Xxxxxx Shipping Corporation 100% owned by OML TRANSFER SHARES
(GLSC)
Golar Gas Holding Company Inc. 100% owned by GLSC Will be acquired through purchase
(GGHC) [LNG Vessels] of GLSC
Golar Maritime (Asia) Inc. (GMA) 100% owned by GGHC Will be acquired through purchase
[Xxxxx Xxxx] of GLSC
Oxbow Holding Inc. (OH) [Xxxxx Xxxx] 100% owned by OML TRANSFER SHARES
SHIPHOLDING COMPANIES
Golar Freeze Inc. 100% owned by GGHC Will be acquired through purchase
of GLSC
Xxxxx Xxxx Inc. 100% owned by GGHC Will be acquired through purchase
of GLSC
Xxxxx Xxxxx Inc. 100% owned by GGHC Will be acquired through purchase
of GLSC
Xxxxx Xxxxxxx Inc. 100% owned by GGHC Will be acquired through purchase
of GLSC
Faraway Maritime Shipping Company 20% owned by GMA, 40% owned by GMA's participation will be
[Vessel: Xxxxx Xxxx] [60%] OH, 40% owned by third party acquired through purchase of GLSC.
Golar Gas Cryogenios Inc. [Vessel: 50% owned by GGHC, a wholly owned GGHC's interest will be acquired
Golar Spirit] subsidiary of GLSC; 50% owned by through the purchase of GLSC.
OML directly
MANAGEMENT COMPANIES TRANSFER SHARES
Osprey Maritime Management Limited 100% owned by OML
(OMML)
Aurora Management Inc. (AM) 80% owned by GMA, 10% owned by OH Will be acquired through the
[10% owned by third party] purchase of OH and GLSC.
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Osprey Maritime (Europe) Limited 100% owned by OMML Will be acquired through
acquisition of OMML
Gotass-Xxxxxx International Limited 100% owned by OMML Will be acquired through
acquisition of OMML
Golar International Limited 100% owned by OMML Will be acquired through
acquisition of OMML
NEWBUILDING CONTRACT
Newbuilding contract in the name of Assign contract to Purchaser or
OML (or its assignee) related to its designee
Hull 2215 (the "Newbuilding
Contract") with Daewoo Shipbuilding
and Engineering Corporation Ltd.
for the construction of one 138
cbm3 LNG carrier with an option to
contract another vessel
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LIST OF VESSELS AND CHARTERS
CHARTER CHARTER
NAME CAPACITY(CBM) YEAR BUILT TYPE CHARTERER EXPIRATION
--------------- --------------- -------------- --------------- --------------- ---------------
Xxxxx Xxxx 138,000 2000 Time Pertamina/ December 2017
KOGAS
Golar Spirit 129,013 1981 Time Pertamina/ December 2006
KOGAS
Golar Freeze(1) 125,862 1977 Time BG Methane December 2002
Svcs.
Hilli 124,890 1975 Time BG Methane January 2011
Svcs.
Xxxxxxx 125,003 1977 Time BG Methane June 2009
Svcs.
Gimi 124,872 1976 Time BG Methane December 2009
Svcs.
00000.000#000000
----------
(1) BG Methane Services has time charter options on the Golar Freeze through
December 2009.
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