Exhibit 4.9
Second Priority
Credit Facility
for an amount not exceeding
USD 60,000,000
dated 11 October 2002
Golar Gas Holding Company, Inc.
as Borrower
The Financial Institutions
listed in Schedule 1
as Banks
Nordea Bank Norge ASA
as Agent
Nordea Bank Norge ASA, Den norske Bank ASA
and Fortis Bank (Nederland) N.V.
as Arrangers
XXXX & WIIG AS
INDEX
1 Interpretation.................................................4
2 Commitment....................................................13
3 Purpose and utilisation.......................................13
4 Conditions precedent..........................................13
5 Facility .....................................................14
6 Security .....................................................14
7 Interest .....................................................15
8 Interest periods..............................................15
9 Substitute basis..............................................16
10 Repayment.....................................................17
11 Prepayment....................................................18
13 Payments .....................................................19
14 Increased costs...............................................20
15 Illegality....................................................21
16 Representations and Warranties................................22
17 Undertakings..................................................28
18 Default ......................................................34
19 The Agent.....................................................37
20 Fees and Commission...........................................41
21 Expenses .....................................................42
22 Indemnities...................................................42
23 Amendments....................................................43
24 Assignment....................................................43
25 Sharing of payments...........................................44
26 Tax Lease Option..............................................45
27 Severability..................................................46
28 Notices ......................................................46
29 Conflicting provisions........................................47
30 Jurisdiction..................................................47
31 Governing law.................................................47
32 Service of process............................................47
Page 2
Schedule 1 Banks and commitments....................................48
Schedule 2 Conditions precedent documents...........................49
Schedule 3 Form of Drawdown Notice..................................52
Schedule 4 Form of Renewal Notice...................................53
Schedule 5 Form of Deed of Assignment ..............................54
Schedule 6 Form of Pledge of Accounts...............................69
Schedule 7 Form of Pledge of Borrower Shares........................76
Schedule 8 Form of Subsidiary Pledge................................84
Schedule 9 Form of Compliance Certificate...........................93
Schedule 10A Form of Guarantee........................................94
Schedule 10B Form of Guarantee.......................................101
Schedule 11 Form of Mortgage........................................108
Schedule 12 List of Charters and Management Agreements..............124
Schedule 13 Form of Co-ordination Agreement.........................128
Page 3
THIS AGREEMENT (the "Agreement") dated 11 October 2002 is made between:
(1) GOLAR GAS HOLDING COMPANY, INC., a company incorporated in the
Republic of Liberia, having its registered office at 00 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx, as borrower (the "Borrower");
(2) THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 as banks (the
"Banks");
(3) NORDEA BANK NORGE ASA, X.X.Xxx 1166 Sentrum, Middelthunsgt. 17, 0368
Oslo, Norway, as agent (the "Agent"); and
(4) NORDEA BANK NORGE ASA, X.X.Xxx 1166 Sentrum, Middelthunsgt. 17, 0368
Oslo, Norway, DEN NORSKE BANK ASA, Stranden 21, 0021 Oslo, Norway and
FORTIS BANK (NEDERLAND) N.V., Blaak 555, 3011 GB Rotterdam, The
Netherlands acting through its Oslo Branch office, Xxxxxxxxxxxxxx 00X,
0000 Xxxx, Xxxxxx, as arrangers (the "Arrangers").
WHEREAS
The Banks have agreed to grant the Borrower a second priority credit facility
for an amount not exceeding USD 60,000,000, subject to the terms and conditions
of this Agreement.
NOW IT IS HEREBY AGREED as follows:
1 Interpretation
1.1 Definitions
In this Agreement and the preambles hereof;
"Annualised EBITDA" means, at any relevant time, the EBITDA for the
three month period ending on such date multiplied by four (4).
"Borrowed Money" means Indebtedness incurred in respect of (i) money
borrowed or raised and debit balances at banks, (ii) any bond, note,
loan stock, debenture or similar debt instrument, (iii) acceptance or
documentary credit facilities, (iv) receivables sold or discounted
(otherwise than on a non recourse basis), (v) deferred payments for
assets or services acquired (other than assets or services acquired on
normal commercial terms in the ordinary course of business where payment
is deferred by no more than 180 days), (vi) Capitalised Lease
Obligations, (vii) any other transaction (including without limitation
forward sale or purchase agreements) having the commercial effect of a
borrowing or raising of money, (viii) guarantees in respect of
Indebtedness of any person falling within any of (i) to (vii) above and
(ix) preference share capital in the Borrower or any member of the Golar
Gas Group which is or may be redeemable prior to the Maturity Date
and/or the full and final discharge of all Indebtedness and liabilities
of the Borrower under this Agreement.
"Business Day" means a day upon which banks and foreign exchange markets
are open for business of the nature required by this Agreement in Oslo,
Amsterdam, London and New York.
"Capitalised Lease Obligation" of any person means the obligation to pay
rent or other payment amounts under a lease of (or other Borrowed Money
arrangements conveying the right to use) real or personal property which
is required to be classified and accounted for as a capitalised lease or
a liability on the face of a balance sheet of such person in accordance
with GAAP.
Page 4
"Charter" means, in relation to a Vessel as at the date hereof, the
charterparty in respect of such Vessel (if any), details of which are
specified in Schedule 12 and any future charters of any of the Vessels.
"Charterer" means, in relation to a Vessel, the person or company or
entity who is the charterer or employer of such Vessel.
"Charter Guarantee" means, in relation to a Vessel:
(a) as at the date hereof, any guarantee in respect of the current
Charter of the Vessel which is specified in Schedule 12; and
(b) any other guarantee, letter of credit, Encumbrance or other
security given by any person to the relevant Owning Company in
respect of the obligations of the Charterer under the Charter of
that Vessel.
"Charter Guarantor" means, in relation to a Vessel, any person who has
given a Charter Guarantee to the Owning Company of that Vessel.
"Commitment" means, in relation to a Bank, the principal amount set
opposite its name in Schedule 1, constituting the total commitment of
such Bank in relation to the Facility, to the extent not cancelled,
reduced or transferred under this Agreement.
"Commitment Period" means the period from the date of this Agreement
until the date 12 months prior to the Maturity Date.
"Compliance Certificate" means a certificate in the form set out in
Schedule 9.
"Co-ordination Agreement" means the agreement dated 11 October 2002
entered into between the Security Agent, the Borrower and the Agent (on
behalf of the Banks), substantially in the form set out in Schedule 13.
"Current Assets" mean, on a consolidated basis, the current assets (as
determined in accordance with GAAP) of the Golar Gas Group (excluding
for this purpose, Oxbow, Golar Maritime, Faraway and Aurora Management
Inc.).
"Current Liabilities" mean, on a consolidated basis, the current
liabilities (as determined in accordance with GAAP) of the Golar Gas
Group (excluding for this purpose, Oxbow, Golar Maritime, Faraway and
Aurora Management Inc.).
"Deeds of Assignment" means each of the general assignments in favour of
the Agent (on behalf of the Banks) on second priority (subject always to
the First Deeds of Assignment) of (i) the Charters of the Vessels, (ii)
the Earnings and any of the Owning Companies' present and future
interest therein, (iii) the Charter Guarantees, (iv) the insurance
proceeds in respect of all insurances of any of the Vessels and (v) any
other moneys payable to any of the Owning Companies in relation to any
of the Vessels or otherwise, as security for the Borrower's obligations
under this Agreement, substantially in the form as set out in Schedule
5.
"Default" means each Event of Default and each event that, with the
giving of notice, lapse of time, or fulfilment or non-fulfilment (as the
case may be) of any other applicable condition (or any combination of
the foregoing), would become such an Event of Default.
"Drawdown Date" means the date of an advance of a Drawing as specified
by the Borrower in a Drawdown Notice.
"Drawdown Notice" means a request made by the Borrower for the drawdown
and advance of a Drawing, substantially in the form set out in Schedule
3.
Page 5
"Drawing" means the advance in the minimum amount of USD 10,000,000 and
in integral multiples of USD 5,000,000, to be made in accordance with
Clause 5.
"Earnings" means, in relation to any Vessel, all moneys whatsoever from
time to time due and payable to the relevant Owning Company during the
Security Period arising out of the use or operation of such Vessel
including (but without limiting the generality of the foregoing) all
freight, hire and passage moneys, income arising out of pooling
arrangements, compensation payable to the relevant Owning Company in the
event of requisition of such Vessel for hire, remuneration for salvage
or towage services, demurrage and detention moneys and damages for
breach (or any payments for variation or termination) of any
charterparty or other contract for the employment of such Vessel and any
sums recoverable under any loss of earnings insurance.
"EBITDA" means, for any period, the earnings before interest, taxes,
depreciation and amortisation (calculated as income from operations plus
any depreciation and amortisation, Interest Expense and Taxes on Overall
Net Income deducted in calculating income from operations in respect of
such period) of the Golar Gas Group (excluding for this purpose Oxbow,
Golar Maritime, Faraway and Aurora Management Inc.) determined in
accordance with GAAP on a consolidated basis.
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, security deposit arrangement,
trust arrangement or security interest or other encumbrance of any kind
securing any obligation of any person or any type of preferential
arrangement (including without limitation, conditional sale or title
transfer and/or retention arrangements having a similar effect).
"Environmental Approval" means any consent, authorisation, licence or
approval of any governmental or public body or authorities or courts,
applicable to any vessel or its operation required under any
Environmental Law.
"Environmental Claim" means any and all enforcement, clean-up, removal
or other governmental or regulatory actions or orders instituted or
completed pursuant to any Environmental Law or any Environmental
Approval together with claims made by any third party relating to
damage, contribution, loss or injury, resulting from any actual or
threatened emission, spill, release or discharge of a Pollutant from any
vessel.
"Environmental Laws" mean all national, international and state laws,
rules, regulations, treaties and conventions applicable to any vessel,
pertaining to the pollution or protection of human health or the
environment including, without limitation, the carriage of Pollutants
and actual or threatened emissions, spills, releases or discharges of
Pollutants.
"Event of Default" means any of the events specified as such in Clause
18.1 (Events of Default).
"Facility" means the credit facility available to the Borrower under
Clause 5.1 of this Agreement.
"Facility Amount" means an amount not exceeding USD 60,000,000.
"Faraway" means Faraway Maritime Shipping Company Limited, a company
incorporated in the Republic of Liberia whose registered office is at 00
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
"Faraway Documents" mean (i) the Faraway Shareholders Agreement being
the shareholders agreement dated 14 June 1997 between Oxbow, Chinese
Petroleum Corporation and Golar Maritime, (ii) the Xxxxx Xxxx Management
Agreement being the management agreement dated 28 October 1997 in
respect of Xxxxx Xxxx between Faraway and Aurora Management Inc. and
(iii) the Faraway Loan Agreement.
"Faraway Loan Agreement" means a loan agreement dated 26 November 1997
for a secured loan facility of up to USD 214,500,000 made between i.a.
Bank of Taiwan (lead arranger), the banks and financial institutions
referred to therein as lenders, Indosuez Asia Shipfinance Services
Limited (agent) and Faraway (borrower).
Page 6
"First Deeds of Assignment" means the general assignments on first
priority of i.a. the Earnings, the Charters and the Insurances of each
Vessel executed by each of the Owning Companies under the USD 325 mill.
Facility Agreement.
"First Mortgages" means the first priority mortgage over each of the
Vessels executed by each of the Owning Companies and the Security Agent
under the USD 325 mill. Facility Agreement.
"First Pledge of Accounts" means the first priority pledges and
assignments of the Borrower's accounts executed by the Borrower and the
Security Agent under the USD 325 mill. Facility Agreement.
"First Security Documents" means the security documents in favour of the
Security Agent under the USD 325 mill. Facility Agreement.
"First Subsidiary Pledge" means, in relation to each of the Owning
Companies, Oxbow and Golar Maritime, the pledge of all of the issued
shares of such companies, on first priority entered into by the Borrower
in favour of the Security Agent as security for the Borrower's
obligations under the USD 325 mill. Facility Agreement.
"Free Available Cash" means, at any relevant time, the amount of the
cash balances (being at any relevant time, an amount equal to the
aggregate amount which is, at such time, credited to and/or invested in
the accounts of the Borrower and the Owning Companies), freely available
for use by the Borrower and/or any of the Owning Companies which may,
notwithstanding any Encumbrance, right of set-off or agreement with any
other party, be withdrawn and/or encashed and used by it for any lawful
purposes without restriction (save for any pledge of accounts pursuant
to the Security Documents and the First Security Document).
"GAAP" means generally accepted accounting principles in the United
States, consistently applied.
"Golar Gas Group" means the Borrower and its Subsidiaries.
"Golar LNG Group" means the Ultimate Owner and its Subsidiaries.
"Xxxxx Xxxx" means M/V "XXXXX XXXX" registered under Liberian flag in
the ownership of Faraway under Official Number 11170.
"Xxxxx Xxxx Charter" means the time charterparty relative to M/V Xxxxx
Xxxx dated 2 July 1997 made between Faraway (as owner) and Pertamina (as
charterer), which is scheduled to expire on 31 December 2017.
"Golar Maritime" means Golar Maritime (Asia) Inc., a company
incorporated in the Republic of Liberia whose registered office is at 00
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
"Guarantees" means the on demand guarantees issued or (as the context
may require) to be issued by (i) the Ultimate Owner and (ii) the
Subsidiary Guarantors (acting jointly and severally), respectively, in
favour of the Agent (on behalf of the Banks) as security for the
Borrower's obligations under this Agreement substantially in the form
set out in Schedule 10A (to be issued by the Subsidiary Guarantors) and
Schedule 10B (to be issued by the Ultimate Owner) and a "Guarantee"
means any one of them.
Page 7
"Guarantors" mean the Ultimate Owner, and the Subsidiary Guarantors and
a "Guarantor" means any of them.
"Indebtedness" means any payment obligations or commitments of any
nature for the payment or repayment of money, whether as principal or as
surety and whether present or future, actual or contingent, hereunder
any payment obligation incurred in respect of or resulting from any
Borrowed Money, including but not limited to, subordinated debt and
other equity contributions as accepted by the Agent (on behalf of the
Banks).
"Insurances" mean, in relation to any Vessel, all policies and contracts
of insurance (which expression includes all entries of such Vessel in a
protection and indemnity or war risk association) which are from time to
time during the Security Period in place or taken out or entered into by
or for the benefit of the relevant Owning Company (whether in the sole
name of such Owning Company or in the joint names of such Owning Company
and any other person) in respect of such Vessel or otherwise howsoever
in connection with such Vessel and all benefits thereof (including
claims of whatsoever nature and return of premiums).
"Interest Expense" means, for any period, interest charges and related
expenses for such period of the Golar Gas Group determined (excluding
for this purpose Oxbow, Golar Maritime, Faraway and Aurora Management
Inc.) in accordance with GAAP.
"Interest Payment Date" means the last day of each Interest Period, and
in respect of Interest Periods exceeding three months, also the date
falling three months after the commencement thereof, and each date
falling at three-monthly intervals thereafter.
"Interest Period" means each period ascertained in accordance with
Clause 8 (Interest Periods) of this Agreement.
"ISM Code" means the International Safety Management Code for the Safe
Operation of Ships and for Pollution Prevention constituted pursuant to
Resolution A.741 (18) of the International Maritime Organisation and
incorporated into the Safety of Life on Sea Convention and includes any
amendments or extensions of it and any regulation issued pursuant to it.
"LIBOR" means for any Interest Period:
(a) the rate per annum equal to the offered quotation for deposits
in USD ascertained by the Agent to be the rate established by
the British Bankers' Association and appearing on the Xxxxxx
page LIBOR, published or reported by Xxxxxx through its monitor
service or any equivalent successor to such service at or about
11:00 hours a.m. (London time) on the applicable Quotation Date;
or
(b) if no such rate is available, the rate per annum at which the
Agent is able to acquire the relevant currency for the relevant
Interest Period in the London Interbank Euro-currency Market at
about 11:00 hours a.m. (London time) on the applicable Quotation
Date, as conclusively certified by the Agent to the Borrower.
"Loan" means the principal amount from time to time outstanding under
the Facility.
"Loss Payable Clauses" mean the provisions regulating the manner payment
of sums receivable under the Insurances of a Vessel which are to be
incorporated in the relevant insurance documents, such Loss Payable
Clauses to be in the form as set out in Appendix 2A to the Deeds of
Assignment or in such other form as may from time to time be agreed in
writing by the Agent.
Page 8
"Management Agreement" means, in relation to a Vessel; (a) the
management agreement between the relevant Owning Company and the Manager
thereof, providing (inter alia) for the Manager to provide technical
management of (inter alia) such Vessel and (b) any future management
agreement relative (inter alia) to that Vessel entered into by the
relevant Owning Company with a Manager on terms previously approved by
the Agent (such approval not to be unreasonably withheld) or in relation
to Xxxxx Xxxx, the management agreement between Faraway and Aurora
Management Inc. and the "Management Agreements" means all of such
agreements.
"Manager" means, in relation to a Vessel: (a) such manager as set out in
Schedule 12, being approved by the Agent (on behalf of the Banks)
(including, but not limited to, any other manager or sub-manager to whom
such manager may delegate its management of such Vessel on terms, inter
alia, that such manager remains wholly responsible as principal to the
relevant Owning Company for the due performance of the relevant
management obligations; or (b)any other entity appointed with the prior
written consent of the Agent as manager of such Xxxxxx, and in relation
to Golar Xxxx, Xxxxxx Management Inc.
"Margin" means 2.0% (two point zero per cent) per annum, increasing by
0.25% (zero point twenty five per cent) per annum on 30 November 2004
and 30 November 2005.
"Market Value" means the fair market value of each of the Vessels and
Xxxxx Xxxx in USD determined as the arithmetic average of independent
valuations of the Vessels and Xxxxx Xxxx obtained (at the cost of the
Borrower) from two independent and well reputed shipbrokers experienced
in the valuation of this kind of vessels, one nominated by the Agent and
the other nominated by the Borrower from a list of independent firms of
shipbrokers from time to time approved in writing by the Agent or,
failing such nomination (within 7 days of a request from the Agent to
nominate a firm) or approval, appointed by the Agent in its sole
discretion. Such valuations to be made on the basis of a sale for prompt
delivery for cash at arms length on commercial terms as between a
willing buyer and willing seller taking into account the benefit of any
Charter or the Xxxxx Xxxx Charter or any other charterparty or other
engagement concerning each vessel and, if the Agent requires, such
valuation to be made after physical inspection, with such physical
inspection having been carried out. Unless one such valuations is for an
amount which is 110% or more of the other, the mean of such valuations
shall constitute the value of the relevant Vessel. If one such valuation
is for such amount, the Agent shall appoint (as the cost of the
Borrower) a third independent firm of shipbrokers to value such Vessel
on the same basis and in the same manner and the mean of all three such
valuations shall constitute the value of the relevant Vessel.
"Master Agreement" means the master agreement dated 12 August 1999 as
amended by addendum no 1 thereto dated 5 January 2000 between Xxxxx
Xxxxxxx Inc., Golar Freeze Inc., Xxxxx Xxxx Inc., Xxxxx Xxxxx Inc.,
Osprey Maritime and Methane Services Limited.
"Maturity Date" means 31 May 2007.
"Mortgage" means a second priority mortgage of each of the Vessels in
the principal amount of USD 60,000,000 plus interest (including default
interests) and costs, executed or (as the context may require) to be
executed by the relevant Owning Company in favour of the Agent (on
behalf of the Banks) as security for the Borrower's obligations under
this Agreement, substantially in the form set out in Schedule 11 hereto,
and being registered against each of the Vessels in the Liberian Ship
Registry and "Mortgages" mean all of such mortgages.
Page 9
"Net Debt" means, on a consolidated basis, an amount equal to the
aggregate of all Borrowed Money of the Golar Gas Group (excluding for
this purpose Oxbow, Golar Maritime, Faraway and Aurora Management Inc.)
other than subordinated debt less Free Available Cash.
"Omnibus Agreement" means the agreement dated 25 October 2001 entered
into between Methane Services Ltd., BG International Ltd., BG Asia
Pacific Pte. Ltd., Osprey Maritime Ltd., Golar Management Ltd., the
Utlimate Owner, Golar Kahnnur Inc., Golar Freeze Inc., Xxxxx Xxxx Inc.,
Xxxxx Xxxxx Inc., Xxxxx LNG 2215 Corporation and Poten & Partners Inc.
"Owning Company" means each of (i) Golar Gas Cryogenics Inc. a company
incorporated in the Republic of Liberia having its registered office at
00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx being the owner of M/V "GOLAR
SPIRIT", (ii) Xxxxx Xxxxx Inc. a company incorporated in the Republic of
Liberia having its registered office at 00 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx being the owner of M/V "HILLI", (iii) Xxxxx Xxxx Inc. a company
incorporated in the Republic of Liberia having its registered office at
00 Xxxxx Xxxxxx, Xxxxxxxx, Liberia being the owner of M/V "GIMI", (iv)
Xxxxx Xxxxxxx Inc. a company incorporated in the Republic of Liberia
having its registered office at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx being
the owner of M/V "XXXXXXX" and (v) Golar Freeze Inc. a company
incorporated in the Republic of Liberia having its registered office at
00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx being the owner of M/V "GOLAR FREEZE"
and "Owning Companies" mean all of such companies.
"Oxbow" means Oxbow Holdings Inc., a company incorporated in the British
Virgin Islands whose registered address is at P.O. Xxx 0000, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx.
"Parent" means Xxxxxx-Xxxxxx Shipping Corporation., a company
incorporated in the Republic of Liberia whose registered address is at
00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
"Party" means a party to this Agreement.
"Permitted Encumbrances" means (i) any Encumbrance created pursuant to
the First Security Documents and (ii) any Encumbrance created pursuant
to the Security Documents.
"Pertamina" means Perusahaan Pertambangan Minyak Xxx Gas Bumi Negara of
Xxxxx Xxxx Building, 2nd Floor, Jl. Jend. Gatot Soebroto Kav. 32-34,
Jakarta 12950, Indonesia.
"Pledge of Accounts" means a second priority pledge of the Borrower's
account no. 6018.04.41444 with the Agent and such other account or
accounts which may later be agreed between the Borrower and the Agent to
be executed by the Borrower and the Agent (on behalf of the Banks) and
the Account Bank (as defined therein) as security for the Borrower's
obligations under this Agreement, substantially in the form set out in
Schedule 6.
"Pledge of Borrower Shares" means, in relation to the Borrower, the
pledge of all of the issued shares of such company, on first priority to
be entered into between the Parent and the Agent (on behalf of the
Banks), as security for the Borrower's obligations under this Agreement,
substantially in the form set out in Schedule 7.
"Pollutant" means and includes pollutants, contaminants, toxic
substances, oil as defined in the United States Oil Pollutant Act of
1990 and all hazardous substances as defined in the United States
Comprehensive Environmental Response, Compensation and Liability Act
1980.
"Quotation Date" means the second Business Day before the first day of
an Interest Period.
Page 10
"Renewal Notice" means a request made by the Borrower for renewal of the
Loan, substantially in the form set out in Schedule 4.
"Security Agent" means Den norske Bank ASA in its capacity as security
agent under the USD 325 mill. Facility Agreement.
"Security Documents" means the Mortgages, the Deeds of Assignment, the
Pledge of Accounts, the Pledge of Borrower Shares, the Subsidiary
Pledges and the Guarantees.
"Security Interest" means any mortgage, pledge, lien, charge (whether
fixed or floating), assignment by way of security, finance lease,
sale-and-repurchase or sale-and-leaseback arrangement, sale of
receivables on a recourse basis or security interest or any other
agreement or arrangement having the effect of conferring security,
except for liens arising solely by operation of law and/or in the
ordinary course of business securing amounts not more than 30 days
overdue.
"Security Period" means the period commencing on the date of this
Agreement and so long as any moneys are owning, actually or contingently
under the Security Documents and while all or any part of the Loan or
Commitments remain outstanding.
"Subsidiary Guarantors" means the Owning Companies, Oxbow and Golar
Maritime.
"Subsidiary" of a person means any company or entity directly or
indirectly controlled by such person and any sub-subsidiaries thereof.
"Subsidiary Pledge" means, in relation to each of the Owning Company,
Oxbow and Golar Maritime, the pledge of all of the issued sharers of
such companies, with second priority after the First Subsidiary Pledge,
to be entered into between the Borrower and the Agent (on behalf of the
Banks) as security for the Borrower's obligations under this Agreement,
substantially in the form set out in Schedule 8 and "Subsidiary Pledges"
means all of such pledges.
"Taxes" includes any present or future taxes, levies, duties, imposts,
withholdings, deductions, fees or charges of any nature, together with
interest thereon and penalties in respect thereof, and "tax" and
"taxation" shall be construed accordingly.
"Tax Lease Option" means the option referred to in Clause 26.
"Tax on Overall Net Income" of a Bank shall be construed as a reference
to tax imposed on that Bank by the jurisdiction under the laws of which
it has been incorporated or in which it is located on (i) the net
income, profits or gains of that Bank world wide or (ii) such of the net
income, profits or gains of that Bank as are considered to arise in or
to relate to or are taxable in that jurisdiction.
Page 11
"Total Loss" means any event which will entitle any of the Owning
Companies to claim payment of the insured value under any of the
Insurances pursuant to Clause 17.14 (Insurances), which shall include
actual, constructive, compromised or arranged total loss or compulsory
acquisition of any of the Vessels.
"Transaction Documents" means this Agreement, the Security Documents,
the Co-ordination Agreement, the Faraway Documents, the Charters, the
Omnibus Agreement, the Charter Guarantees, the Master Agreement, the
Xxxxx Xxxx Charter, the USD 325 mill. Facility Agreement, the First
Security Documents, the Management Agreements and the agreements or
documents contemplated herein or therein.
"Ultimate Owner" means Golar LNG Ltd., a company incorporated in Bermuda
whose registered address is Par-la Xxxxx Xxxxx, 0xx Xxxxx, 00 Xxx-xx
Xxxxx Xxxx, Xxxxxxxx XX00, Xxxxxxx, being the owner of the Parent.
"USD" means the lawful currency for the time being of the United States
of America.
"USD 325 mill. Facility" means the term loan facility granted to the
Borrower under the USD 325 mill. Facility Agreement.
"USD 325 mill. Facility Agreement" means the USD 325 mill. term loan
facility dated 31 May 2001 entered into between (i) the Borrower (as
borrower), (ii) the banks and financial institutions listed therein,
(iii) Christiania Bank og Kreditkasse ASA (now Nordea Bank Norge ASA),
Den norske Bank ASA, Citibank N.A. and Fortis Bank (Nederland) N.V. as
lead arrangers, (iv) Den norske Bank ASA and Christiania Bank og
Kreditkasse ASA as swap banks, (v) Christiania Bank og Kreditkasse ASA
as administrative agent and (vi) Den norske Bank ASA as security agent.
"Vessels" means each of M/V "GOLAR SPIRIT", M/V "HILLI", M/V "GIMI", M/V
"XXXXXXX" and M/V "GOLAR FREEZE" owned by the relevant Owning Company
and a "Vessel" means any of the Vessels.
1.2 Construction
In this Agreement, unless the context or any express provisions of this
Agreement otherwise requires:
(a) words importing the singular shall include the plural and vice
versa;
(b) the index to and the headings in this Agreement are for
convenience only and shall be ignored in construing this
Agreement;
(c) reference to any Party shall, subject to Clause 24, be deemed to
be a reference to or include, as appropriate, such Party's
permitted successors and assignees or transferees;
(d) references to Clauses and sub-Clauses and the Schedules are
references to, respectively, the Clauses and sub-Clauses of, and
the Schedules to, this Agreement;
(e) all references to statutes and other legislation include all
modifications, re-enactments and amendments thereof; and
(f) a reference to this Agreement, the Transaction Documents or to
another agreement or document shall be construed as including a
reference to all permitted amendments or variations thereof or
supplements thereto from time to time in force, but without
prejudice to the Borrower's obligations to obtain necessary
consent in respect of such amendment or supplement.
Page 12
2 Commitment
2.1 Facility
Subject to the terms of this Agreement, each Bank agrees to make
available to the Borrower the Facility in an aggregate principal amount
not exceeding its Commitment.
2.2 Obligations several
The obligations of the Banks under this Agreement are several, to the
effect that;
(a) failure of a Bank to carry out its obligations under this
Agreement shall not relieve any other party hereto of any of its
obligations under this Agreement; and
(b) no Bank shall be responsible for the obligations of any other
Bank hereunder.
3 Purpose and utilisation
3.1 Facility
The purpose of the Facility is to provide the Borrower with funds for
the purpose of financing the payment of dividends to the Parent and,
subsequently to the Ultimate Owner and/or the provision of a loan to the
Ultimate Owner which the Ultimate Owner will use to finance its
newbuilding program.
3.2 No inquiry
Without prejudice to the foregoing and to the remaining provisions of
this Agreement, neither the Agent nor any Bank shall be bound to inquire
as to, nor shall any of them be responsible for, the application by the
Borrower of the Facility Amount.
4 Conditions precedent
4.1 Initial conditions
The obligations of the Agent and each Bank hereunder are subject to the
condition that the Agent (on behalf of the Banks) has received all the
documents set out in Schedule 2 in a form and substance satisfactory to
it no less than five Business Days prior to the first Drawdown Date
hereunder.
If the documents set out in Schedule 2 are not submitted as originals,
photocopies of the original documents must be certified by a lawyer
before submittal to the Agent.
4.2 Specific conditions
The obligations of the Agent and each Bank hereunder in respect of the
Facility are further subject to the specific conditions that for any
Drawing, on both the date of the Drawdown Notice and the Drawdown Date:
(a) the representations and warranties in Clause 16 (Representations
and Warranties) deemed to be repeated on those dates are true,
correct and not misleading and will be true, correct and not
misleading immediately after advance of the Drawing under this
Agreement with reference to the facts and circumstances then
prevailing, unless otherwise informed to the Agent in writing
and, if not permitted under this Agreement, waived by the Banks
prior to such dates; and
Page 13
(b) no Default has occurred or is threatening or would result from
the advance of the Drawing.
5 Facility
Subject to the terms of this Agreement, the Facility Amount will be made
available to the Borrower to be drawn in the Commitment Period in up to
three Drawings.
5.1.1 Drawdown Notice
The Borrower shall, not later than 10:00 a.m. (London time) five
Business Days prior to the requested Drawdown Date, or on such earlier
or later date as may be agreed with the Agent by the Banks, serve to the
Agent the Drawdown Notice which, once received by the Agent, shall be
irrevocable.
5.1.2 Effect
The giving of each Drawdown Notice by the Borrower shall be deemed to
constitute a representation and warranty by the Borrower that all the
representations and warranties set forth in Clause 16 (Representations
and Warranties) are true, correct and not misleading as of such date as
if made on such date, that the conditions specified in Clause 4 have
been or will upon each Drawdown Date be fully performed, and that no
Event of Default or any event which, with the giving of notice or lapse
of time or both, would constitute an Event of Default, has occurred or
is threatening.
5.1.3 Participation
The Banks shall upon confirmation from the Agent that the Agent has
received a duly completed Drawdown Notice and subject to the terms and
conditions of this Agreement, and provided that no Event of Default has
occurred or is threatening, make their Commitments in respect of the
relevant Drawing available to the Borrower in one disbursement on the
requested Drawdown Date.
5.1.4 Availability
Each Drawing shall be made available to the Borrower by the Agent who
shall promptly transfer all amounts received by it from the Banks to the
Borrower to the account specified in the Drawdown Notice in the same
funds as they have been received by the Agent.
6 Security
6.1 Security
The Borrower's obligations towards the Banks and the Agent under or in
connection with this Agreement and the Facility, including without
limitation the obligation to repay the Loan together with all unpaid
interest, default interest, commissions, charges, fees and expenses, or
any liability whatsoever derived therefrom, shall be secured by the
Security Documents.
Page 14
6.2 Set-off
In the event of non-payment of any amount hereunder when due, the Agent
(acting on its own behalf and on behalf of the Banks) and each of the
Banks individually (acting on its own behalf and on behalf of the Agent
and the other Banks) shall, to the extent permitted by applicable law
and always subject to the Co-ordination Agreement, have a separate right
of set-off in respect of any credit balance, in any currency, on any
account the Borrower might have with either the Agent or any of the
Banks (branches included), from time to time towards satisfaction of any
sum due to the Agent or any of the Banks hereunder.
7 Interest
7.1 Rate
The rate of interest applicable to the Loan for each Interest Period
shall be the rate per annum determined by the Agent to be the aggregate
of:
(a) the Margin; and
(b) LIBOR for the relevant Interest Period.
7.2 Payment
Except as otherwise provided herein, accrued interest in relation to the
Loan for each Interest Period is payable by the Borrower on each
Interest Payment Date, and in relation to any amount prepaid, on the
date of such prepayment as set out in Clause 11.4.
7.3 Accrual
Interest shall accrue from day to day and on the basis of a year of 360
days and for the actual number of days elapsed and shall be paid in USD.
7.4 Default interest
In the event of any payments hereunder not being received on the due
date therefore, interest is payable by the Borrower from the due date
until such payment is received, at a rate to be determined by the Agent
to be the aggregate sum of 2.0 per cent per annum, the Margin and the
costs the Banks will incur in financing the Loan for such periods as the
Banks shall determine (each such period referred to as a "Designated
Interest Period"), such interest being payable by the Borrower upon the
Agent's written demand.
7.5 Notification
The Agent shall without undue delay notify each relevant Party of the
determination of a rate of interest under this Agreement.
7.6 Effective Annual Interest Rate
The Borrower has acknowledged and agreed to the calculation of effective
annual interest payable by the Borrower under the Facility as set out in
a letter from the Agent (on behalf of the Banks) to the Borrower of even
date herewith.
8 Interest periods
8.1 Selection
(a) The Borrower shall select the first Interest Period for the
first Drawing in the Drawdown Notice such Interest Period
commencing on the Drawdown Date, and each subsequent Interest
Period will commence forthwith upon expiry of the immediately
preceding Interest Period;
(b) each subsequent Drawing shall be consolidated with previous
Drawings;
Page 15
(c) the Borrower shall, by serving the Renewal Notice to the Agent
not later than 10:00 hours a.m. (London time) two Business Days
before the beginning of each Interest Period, specify the
duration of that Interest Period. The Renewal Notice shall
constitute a representation and warranty to the effect that, on
the date of that notice, the representations and warranties in
Clause 16 (Representations and Warranties) remain true, correct
and not misleading and that no Event of Default has occurred or
is threatening.
8.2 Duration
Subject to the provisions of this Clause 8, each Interest Period is to
be for a period of one, three or six months, subject always to
availability to all the Banks, and provided that the number of one month
Interest Periods in one calendar year never shall exceed three.
8.3 Deemed Selection
If the Borrower fails to select an Interest Period in accordance with
the preceding provisions, or if the Agent after consultation with the
Banks shall certify to the Borrower that the funds requested are not
available for an Interest Period of the length requested by the
Borrower, there shall be deemed to have been selected an Interest Period
of three months.
8.4 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall be extended to the next
Business Day in that calendar month, or if the next Business Day would
fall in the next calendar month, the Interest Period shall be shortened
to the preceding Business Day.
8.5 Notification
The Agent shall notify the Banks of the duration of each Interest Period
promptly after ascertaining the same.
9 Substitute basis
9.1 Suspension
If, on or prior to a Quotation Date:
(a) the Agent reasonably determines that adequate and fair means do
not exist for ascertaining LIBOR; or
(b) prior to 2:00 p.m. (London time) on the Quotation Date the Agent
receives notification from any Bank (the "Affected Bank") that:
(i) matching deposits are not available to them in the
London interbank market in sufficient amounts to fund
their participation in the relevant Drawing for the
relevant Interest Period; or
(ii) the cost to them of obtaining matching deposits in the
London interbank market to fund their respective
participation in the relevant Drawing would be in excess
of LIBOR for the relevant Interest Period,
Page 16
the Agent shall immediately give written notice (the "Suspension
Notice") of such determination or notification to the Borrower and the
Banks.
9.2 Before utilisation
If a Suspension Notice relates to a Drawing before it has been advanced
then the Banks shall not be obliged to advance the Drawing and each
Affected Bank shall not be obliged to participate in the Drawing until
written notice to the contrary is given by the Banks or such Affected
Bank to the Borrower. In such case, during the period of 30 days from
such Suspension Notice, each Bank or Affected Bank and the Agent shall
negotiate in good faith with the Borrower with a view to agreeing to an
alternative basis for the borrowing of the Drawing or of such Affected
Bank's participation in the Drawing. If such alternative basis is agreed
between the Borrower and the Banks or such Affected Bank, it shall apply
in accordance with its terms.
9.3 Following utilisation
If a Suspension Notice relates to a Drawing or the Loan after it has
been advanced, the Banks or such Affected Bank shall, during the period
of 30 days from such Suspension Notice, in consultation with the Agent
and the Borrower, certify to the Agent and the Borrower such alternative
basis as the Banks or such Affected Bank in their sole and absolute
discretion shall determine (in this Agreement referred to as their
"Substitute Basis") for maintaining the participation of the Banks or
such Affected Bank in the Drawing or the Loan. Without limitation, such
Substitute Basis may be retroactive to the beginning of such Interest
Period (being the Interest Period commencing at or around the date of
the Suspension Notice), and may include an alternative method of fixing
the interest rate (which shall reflect the cost to the Banks or such
Affected Bank of funding its participation in the Drawing or the Loan
from other sources plus the Margin and alternative Interest Periods).
Each Substitute Basis so certified shall be binding upon the Borrower
and the Banks or Affected Bank and shall be treated as part of this
Agreement.
9.4 Consultation
So long as any Substitute Basis is in force the Agent (in consultation
with the Borrower and each Bank certifying a Substitute Basis) shall
from time to time, but not less often than monthly, review whether or
not the circumstances referred to in Clause 9.1 still prevail with a
view to returning to the normal provisions of this Agreement.
10 Repayment
The Borrower shall repay the Loan in quarterly consecutive instalments
of USD 4,000,000, the first instalment being payable on 30 November
2003. The Loan shall be repaid in full on the Maturity Date.
Page 17
11 Prepayment
11.1 Voluntary prepayment
The Borrower may (subject to the payment of applicable breakage costs)
upon fifteen Business Days' written notice to the Agent (on behalf of
the Banks), on the last Business Day of an Interest Period, prepay the
Loan by minimum amounts of USD 5,000,000 and integral multiples of USD
1,000,000.
11.2 Mandatory prepayment
To the extent that the Borrower is obliged to make a mandatory
prepayment pursuant to Clause 4 of the USD 325 mill. Facility Agreement,
the balance between the proceeds received by the Borrower and the
prepayment made under the 325 mill. Facility Agreement shall be used as
prepayment hereunder.
11.3 Effect of prepayment
Any amount prepaid pursuant to this Clause 11 shall be applied against
the remaining instalments in inverse order of maturity and may not be
drawn again.
11.4 Additional right of prepayment
If:
(a) the Borrower is required to pay to a Bank any additional amounts
under Clause 13.6 (Taxes); or
(b) the Borrower is required to pay to a Bank any amount under
Clause 14 (Increased costs);
then, without prejudice to the obligations of the Borrower under those
Clauses, the Borrower may, subject to Clause 11.5 (Conditions), whilst
the circumstances continue, serve a notice of prepayment on that Bank
through the Agent. On the date falling five Business Days after the date
of service of the notice:
(i) the Borrower shall prepay that Bank's participation in
the Loan; and
(ii) any undrawn part of that Bank's Commitment in respect of
the Facility Amount shall be cancelled.
11.5 Conditions
(a) Any notice of prepayment under this Agreement is irrevocable and
shall specify the date on which the prepayment is to become
effective and the amount is to be prepaid. The Agent shall
notify the Banks promptly of receipt and contents of any such
notice.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid and any amounts due in
respect of such prepayment under Clause 22 (Indemnities).
12 Cancellation
The Borrower may, upon ten Business Days' written notice to the Banks
which shall be irrevocable, cancel the Facility Amount (in whole or in
part) in multiples of minimum USD 10,000,000 and in integral multiples
of USD 5,000,000 without premium of penalty. Any amount so cancelled,
will not be reinstated.
Page 18
13 Payments
13.1 Place
All payments by the Borrower or a Bank under this Agreement shall be
made to the Agent to its account at such office or bank as the Agent may
from time to time designate.
13.2 Funds
Payments under this Agreement to the Agent shall be made for value on
the due date at such times and in such amounts as the Agent may specify
to the Party concerned as being customary at the time for the settlement
of transactions in the relevant currency in the place for payment.
13.3 Distribution
Each payment received by the Agent under this Agreement for another
Party shall be made available by the Agent to that Party by payment (on
the date and in the currency and funds of receipt) to its account with
such office or bank in the principal financial centre of the country of
the relevant currency as it may notify to the Agent for this purpose by
not less than five Business Days prior written notice.
13.4 Currency
(a) Any amount payable under this Agreement is, except as otherwise
provided for herein, payable in USD.
(b) Amounts payable in respect of costs, expenses, taxes and the
like are payable in the currency in which they are incurred.
13.5 Set-off and counterclaims
All payments made by the Borrower under this Agreement shall be made
without set-off or counterclaim.
13.6 Taxes
All payments by the Borrower under this Agreement shall be made free and
clear of and without deduction for or on account of any Taxes, except to
the extent that the Borrower is required by law to make payment subject
to any Taxes. If by requirement of law any Tax or amounts in respect of
Tax must be deducted or withheld from any amounts payable or paid by the
Borrower, or paid or payable by the Agent to a Bank, under this
Agreement, the Borrower (or the Agent, if required) shall pay such Tax
to the relevant authority and the Borrower shall pay such additional
amounts as may be necessary to ensure that the relevant Bank receives
(free from any liability in respect of any such deduction or
withholding) a net amount equal to the full amount which it would have
received had payment not been made subject to Tax or other deduction.
The Borrower shall promptly deliver to the Agent any receipts,
certificates or other proof evidencing the amounts paid or payable in
respect of any deduction or withholding as aforesaid.
Page 19
13.7 Non-Business Days
If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall be extended to the
next Business Day in the same calendar month provided that if the next
Business Day would fall in the next calendar month, the due date for
that payment shall instead be the preceding Business Day.
13.8 Partial payments
If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Borrower under this Agreement and
the Security Documents, the Agent shall apply that payment towards the
discharge of the obligations of the Borrower under this Agreement in the
following order:
(a) firstly, in or towards payment pro rata of any unpaid costs and
expenses of the Agent and the Banks;
(b) secondly, in or towards payment pro rata of any accrued fees due
but unpaid under Clause 20 (Fees);
(c) thirdly, in or towards payment pro rata of any accrued interest
unpaid;
(d) fourthly, in or towards payment pro rata of any principal due
from the Borrower but unpaid; and
(e) fifthly, in or towards payment pro rata of any other sum due but
unpaid.
14 Increased costs
14.1 Recovery
(a) Subject to Clause 14.2 (Exceptions) and the relevant Bank
notifying the Borrower of any event referred to below promptly
upon becoming aware thereof, the Borrower shall, promptly after
demand by a Bank, pay to that Bank the amount of any increased
cost relating to this Agreement incurred by it as a result of:
(i) any change in, or any change in the interpretation or
application by any competent authority of, any relevant
law or regulation after the date of this Agreement; or
(ii) compliance with any regulation made by a competent
authority of the jurisdiction in which it is
incorporated and/or in which its principal office is
located after the date of this Agreement,
Page 20
including any law or regulation relating to taxation, or reserve asset,
special deposit, cash ratio, liquidity or capital adequacy requirements
or any other form of banking or monetary control.
(b) In this Agreement "increased cost" means:
(i) a reduction in any amount payable to a Bank or the
effective return to a Bank on its capital which would
not have occurred had that Bank not entered into this
Agreement; or
(ii) the amount of any payment made by a Bank, or the amount
of any interest or other return foregone by a Bank,
calculated by reference to any amounts received or
receivable by that Bank from the Agent or the Borrower
under this Agreement,
all as certified by the relevant Bank, such certificate to set out in
reasonable detail the circumstances giving rise to the claim for payment
of increased costs and the calculations of the amount claimed and shall
be conclusive evidence, save for manifest error, of the amount due from
the Borrower.
14.2 Exceptions
Clause 14.1 (Increased costs) does not apply to any increased cost:
(a) provided for by the operation of Clause 13.6 (Taxes); or
(b) attributable to any change in the rate of Tax on Overall Net
Income of a Bank.
15 Illegality
If any change in or introduction of any law, regulation, treaty,
official directive or official request, or any change in the
interpretation or application thereof, makes it unlawful (or contrary to
such directive or request) hereunder or in any jurisdiction applicable
to a Bank for any Bank to make available or fund or maintain the
Facility or to give effect to its obligations as contemplated hereby,
such Bank may, by written notice thereof to the Borrower through the
Agent, declare that such Bank's obligations shall be terminated
forthwith whereupon the Borrower will prepay that Bank's participation
in the Facility through the Agent within ten Business Days thereafter
without penalty.
Page 21
16 Representations and Warranties
16.1 Initial warranties
The Borrower represents and warrants to the Agent and each Bank that:
16.1.1 Status The Borrower is a limited liability company duly incorporated in
the Republic of Liberia, validly existing and registered under the laws
of the Republic of Liberia, with an authorised share capital of 1.000
shares of no par value each of which 500 shares have been issued and
fully paid and is outstanding in registered form and the legal title and
beneficial ownership of all such shares is held by the Parent, and has
the power to own its assets and carry on its business as presently being
conducted.
The Parent is a limited company duly incorporated in the Republic of
Liberia, validly existing and registered under the laws of the Republic
of Liberia, with an authorised share capital of 44,000,000 shares of USD
1.00 par value each of which 1 share has been issued and fully paid and
is outstanding in registered form and the legal title and beneficial
ownership of all such shares is held by the Ultimate Owner, and has the
power to own its assets and carry on its business as presently being
conducted.
Each of Golar Maritime, Xxxxx Xxxx Inc., Xxxxx Xxxxx Inc. and Xxxxx
Xxxxxxx Inc. is a limited company duly incorporated in the Republic of
Liberia, validly existing and registered under the laws of the Republic
of Liberia, with an authorised share capital of 1.000 shares of no par
value each of which 1.000 Class A share have been issued and fully paid
and is outstanding in registered form and the legal title and beneficial
ownership of all such shares is held by the Borrower, and has the power
to own its assets and carry on its business as presently being
conducted.
Golar Freeze Inc. is a limited company duly incorporated in the Republic
of Liberia, validly existing and registered under the laws of the
Republic of Liberia, with an authorised share capital of 1.000 shares of
no par value each of which 500 Class A shares have been issued and fully
paid and is outstanding in registered form and the legal title and
beneficial ownership of all such shares is held by the Borrower, and has
the power to own its assets and carry on its business as presently being
conducted.
Golar Gas Cryogenics Inc. is a limited company duly incorporated in the
Republic of Liberia, validly existing and registered under the laws of
the Republic of Liberia, with an authorised share capital of 1.000
shares of no par value each of which 1.000 Class A shares have been
issued and fully paid and is outstanding in registered form and the
legal title and beneficial ownership of all such shares is held by the
Borrower, and has the power to own its assets and carry on its business
as presently being conducted.
Page 22
Oxbow is a limited company duly incorporated in the British Virgin
Islands, validly existing and registered under the laws of the British
Virgin Islands, with an authorised share capital of 50.000 shares of USD
1.00 par value each of which 100 shares have been issued and fully paid
and is outstanding in registered form and the legal title and beneficial
ownership of all such shares is held by the Borrower, and has the power
to own its assets and carry on its business as presently being
conducted.
The Ultimate Owner is a limited company duly incorporated in Bermuda,
validly existing and registered under the laws of Bermuda, with a share
capital divided into 56,012,000 shares of USD 1.00 of which
approximately 50% of all such shares are ultimately owned by Greenwich
Holdings Ltd., and has the power to own its assets and carry on its
business as presently being conducted.
16.1.2 Powers and Authority
Each of the Borrower, the Parent and the Guarantors has the power to
enter into and perform, and has taken all necessary corporate actions to
authorise the entry into, performance and delivery of, this Agreement
and/or the Transaction Documents to which it is a party, and the
transactions contemplated herein and therein and no limitation on the
powers of any of the Guarantors to borrow will be exceeded as a result
of the obligations of the Guarantors under the Security Documents.
16.1.3 Legal Validity and Enforceability
This Agreement and each of the Transaction Documents will when executed
by the respective parties thereto (and, in the case of the Security
Documents which require registration, when duly registered) constitute a
legal, valid and binding obligation of the respective party, enforceable
in accordance with its terms and no registration, filing, payment of tax
or fees or other formalities are necessary or desirable to render this
Agreement and/or any of the Transaction Documents enforceable against
the parties thereto, and for the Security Documents to constitute valid
and enforceable security documents and Security Interest with the
priority as contemplated therein or herein.
16.1.4 Non-conflict with laws etc.
The entry into and performance by each of the Borrower, the Parent and
the Guarantors of this Agreement and the Transaction Documents to which
they are a party, and the transactions contemplated herein and therein,
do not and will not conflict with:
(a) any present law or regulation or judicial or official order
(including the Directive 91/308/EEC of the Council of the
European Communities implemented to combat "money laundering");
Page 23
(b) any provisions of the Memorandum and Articles of Association,
by-laws or similar corporate documents of the Borrower or any of
the Guarantors or the Parent; or
(c) any document or agreement which is binding upon the Borrower,
the Parent or any of the Guarantors or any of their assets.
16.1.5 No Default
(a) No Default has occurred or is threatening or might result from
the utilisation of the Facility by the Borrower; and
(b) no other event has occurred which (with the giving of notice,
lapse of time, determination of materiality or the fulfilment of
any other applicable condition, or any combination of the
foregoing), might constitute an event of default under any
document which is binding on the Borrower, the Parent or any of
the Guarantors or any member of the Golar LNG Group or any of
their assets, and which may result in a material effect on the
business or condition of the Borrower, the Parent or any of the
Guarantors or any member of the Golar LNG Group or a material
effect on the Borrower's, the Parent's or any of the Guarantors'
or any member of the Golar LNG Group's ability to perform their
respective obligations under this Agreement or the Security
Documents (as the case may be) or any agreement relating to
Indebtedness to which it is a party or by which it may be bound;
and
(c) no amendments or waivers have been made under any of the
Transaction Documents, and no event of default has occurred or
is threatening thereunder.
16.1.6 Authorisations/consents
All authorisations, approvals, consents and other matters required in
connection with the entry into, performance, validity and enforceability
of, and the transactions contemplated by, this Agreement and each of the
Transaction Documents have been obtained or effected and are in full
force and effect and there are no circumstances which indicate that any
of the same are likely to be revoked in whole or in part.
16.1.7 Financial Information
(a) The audited accounts of the Borrower, the Parent and the
Guarantors most recently delivered to the Agent:
(i) represent a true and fair view of the financial position
of the Borrower, the Parent and the Guarantors at the
date of such accounts; and
(ii) have (save as stated therein) been prepared in
accordance with GAAP consistently applied; and there has
been no material adverse change in the financial
condition of any of the Borrower, the Parent or the
Guarantors since the date of such accounts, which might
be expected to have a material adverse effect on the
ability of any of the Borrower, the Parent or the
Guarantors to perform their respective obligations under
this Agreement and the Transaction Documents to which
they are a party.
Page 24
(b) All financial documents and information relating to the
Borrower, the Parent or the Guarantors or otherwise relevant to
the matters contemplated by this Agreement which have been
supplied to the Agent or the Banks (as the case may be) are
complete and correct in all material respects, and none of the
Borrower, the Parent or the Guarantors have omitted to disclose
to the Agent or the Banks (as the case may be) any information,
documents or agreements which, if disclosed, could reasonably be
expected to affect the decision of the Banks to enter into this
Agreement.
16.1.8 Litigation
No litigation, arbitration or administrative proceedings are current,
pending or threatened against any of the Borrower or the Guarantors or
any other member of the Golar LNG Group which might, if adversely
determined, be reasonably expected to have a material adverse effect on
the ability of any of the Borrower, the Parent or the Guarantors to
perform their respective obligations under this Agreement or any of the
Transaction Documents.
16.1.9 Compliance with Environmental Laws and Approvals
Except as may already have been disclosed by the Borrower prior to the
date of this Agreement in writing to, and acknowledged in writing by,
the Agent:
(a) to the best of the Borrower's knowledge and belief after due
enquiry, all members of the Golar LNG Group have complied in all
respects with the provisions of all applicable Environmental
Laws;
(b) to the best of the Borrower's knowledge and belief after due
enquiry, all members of the Golar LNG Group have obtained all
Environmental Approvals and are in compliance in all respects
with all such applicable Environmental Approvals; and
(c) no member of the Golar LNG Group has received any notice of any
Environmental Claim pending or, to the best of the Borrower's
knowledge and belief after due enquiry, threatened against any
member of the Golar LNG Group, Faraway, any Vessel or Xxxxx
Xxxx.
16.1.10 No Environmental Claims
Except as may already have been disclosed by the Borrower prior to the
date of this Agreement in writing to and acknowledged by the Agent, to
the best of the Borrower's knowledge and belief after due enquiry, there
is no Environmental Claim pending or, to the best of the Borrower's
knowledge and belief after due enquiry, threatened against any member of
the Golar LNG Group, Faraway, any Vessel or Xxxxx Xxxx.
Page 25
16.1.11 No Environmental incidents
Except as may already have been disclosed by the Borrower prior to the
date of this Agreement in writing to, and acknowledged by, the Agent, to
the best of the Borrower's knowledge and belief after due enquiry, there
has been no emission, spill, release or discharge of a Pollutant from
any Vessel or Xxxxx Xxxx.
16.1.12 No Environmental problems
Except as may already have been disclosed by the Borrower prior to the
date of this Agreement in writing to, and acknowledged by, the Agent, to
the best of the knowledge and belief of the Borrower and its directors
and officers (having made due enquiry), there are no circumstances
arising from any breach of Environmental Laws or which may give rise to
an Environmental Claim which constitutes, or may give rise to, an Event
of Default.
16.1.13 Compliance with ISM Code
Each of the Owning Company and the Managers has complied at all times in
all respects with the ISM Code.
16.1.14 No Taxes
No Taxes are imposed by withholding or otherwise on any payment to be
made by the Borrower under the Agreement or any of the Security
Documents or by any of the Guarantors or the Parent under the Security
Documents or are imposed on or by virtue of the execution or delivery by
the Borrower under the Agreement or any of the Security Documents or any
of the Guarantors or the Parent under the Security Documents or any
other document or instrument to be executed or delivered under the
Agreement or any of the Security Documents.
16.1.15 Tax compliance
All tax returns required to be filed in all jurisdictions in which the
Borrower or any other member of the Golar LNG Group are situated or
carry on business or are otherwise subject to taxation, have been filed
and all Taxes shown to be due and payable on such returns or any
assessments made against such company has been paid (other than those
being contested in good faith where such payment may be lawfully
withheld) and adequate reserves have been made for such payments should
it be found to be payable.
16.1.16 No material adverse change
There has been no material adverse change in the consolidated financial
position of the Golar LNG Group from that set out in the financial
statements referred to in Clause 16.1.7.
Page 26
16.1.17 The Vessels
Each Vessel is, and will on a Drawdown Date be:
(i) in the sole, legal and beneficial ownership of the
relevant Owning Company free and clear of all
Encumbrances other than crew wages and the relevant
First Mortgages;
(ii) registered in the name of the relevant Owning Company in
the Liberian Ship Registry as a ship under the laws and
flag of the Republic of Liberia;
(iii) operationally seaworthy and in every way fit for
service;
(iv) classed with the relevant classification free of all
overdue requirements and recommendations of the relevant
classification company;
(v) managed by the relevant Manager under the relevant
Management Agreement; and
(vi) continuing in the service of the relevant Charterer
under its Charter (if any).
16.1.18 Xxxxx Xxxx
Xxxxx Xxxx is, and will on a Drawdown Date be:
(i) in the sole, legal and beneficial ownership of Faraway ;
(ii) registered in the name of Xxxxxxx in the Liberian Ship
Registry as a ship under the laws and flag of the
Republic of Liberia;
(iii) operationally seaworthy and in every way fit for
service;
(iv) classed with the classification +100A1, Liquified Gas
Carrier, free of all overdue requirements and
recommendations of Lloyd's Register of Shipping;
(v) managed by the relevant Manager under the relevant
Management Agreement; and
(vi) continuing in the service of Pertamina under the Xxxxx
Xxxx Charter.
16.1.19 Faraway ownership and Faraway Borrowed Money
40% of the issued share capital of Faraway is legally and beneficially
owned by Oxbow and 20% is legally and beneficially owned by Golar
Maritime and the remaining 40% of such share capital is legally and
beneficially owned by Chinese Petroleum Corporation.
Faraway is not liable for, and has not incurred, any Borrowed Money
except pursuant to the Faraway Loan Agreement.
Page 27
16.2 Repetition
The representations and warranties in Clause 16.1 (Representations and
Warranties) are made by the Borrower on the date of this Agreement and
shall be deemed to be repeated by the Borrower at the date of each
Drawdown Notice, Drawdown Date and Renewal Notice as well as the first
day in each Interest Period, with reference to the facts and
circumstances then existing, unless otherwise notified to the Agent in
writing, and if not permitted under this Agreement, waived by the Banks
prior to such dates.
17 Undertakings
17.1 Duration and extent
The undertakings in this Clause 17 remain in force from the date of this
Agreement and for so long as any amount is outstanding under this
Agreement.
17.2 Notification
The Borrower shall immediately notify and procure that each of the
Owning Companies and Xxxxxxx immediately notifies the Agent of:
(i) any Default (and the steps, if any, being taken to
remedy it) upon its occurrence;
(ii) any accident to any of the Vessels or Xxxxx Xxxx
involving repairs the cost of which is likely to exceed
USD 500,000;
(iii) any requirement or recommendation made in relation to
any of the Vessels or Xxxxx Xxxx by any insurer or its
classification society or by any competent authority
which is not complied with in accordance with its terms;
(iv) any Total Loss relevant to any of the Vessels or Xxxxx
Xxxx;
(v) any arrest or detention of any of the Vessels or Xxxxx
Xxxx or the accounts pledged under the Deeds of
Assignment and the Pledge of Accounts or the exercise or
purported exercise of any lien on any of the Vessels or
Xxxxx Xxxx or any of the accounts pledged under the
Deeds of Assignment and the Pledge of Accounts; or
(vi) the occurrence of any material Environmental Claim
against an Owning Company or Faraway, any Vessel or
Xxxxx Xxxx or any member of the Golar LNG Group or any
other vessel from time to time owned, technically
managed or crewed by, or bareboat chartered to, any
member of the Golar LNG Group or any incident, event or
circumstances which may give rise to any such
Environmental Claim or Event of Default specified in
Clause 17.18.
Page 28
17.3 Financial information
The Borrower shall supply to the Agent, in a form satisfactory to the
Agent:
(a) as soon as reasonably practicable after the same are available
(and in any event within 120 days of the end of each of its
financial years) the audited accounts (prepared in accordance
with GAAP consistently applied) of the Borrower and the Golar
LNG Group; and
(b) as soon as reasonably practicable after the same are available
(and in any event within 60 days of the end of each quarter),
the unaudited accounts and any other financial reports of the
Borrower and the Golar LNG Group for such three months.
17.4 Financial covenants
The Borrower undertakes that its and the Owning Companies' financial
condition (on a consolidated basis) throughout the Security Period shall
be such that:
(a) Free Available Cash: at all times shall be not less than USD
25,000,000;
(b) Working Capital: as at the end of each quarterly period during
and at the end of each financial year of the Borrower, the ratio
of Current Assets to Current Liabilities (excluding the current
portion of long term debt) shall not be less than 1.50:1.00; and
(c) Leverage: as at 31 December 2002 and as at the end of each
subsequent quarterly period and during and at the end of each
financial year of the Borrower, the ratio of Net Debt as at the
end of such period to Annualised EBITDA calculated by reference
to such quarter shall not exceed: : (i) 6,5 to 1 for quarterly
periods ending during or at the end of 2002 and 2003, (ii) 6,0
to 1 for quarterly periods ending during or at the end of 2004
and (iii) 5,0 to 1 for all subsequent quarterly periods to the
Maturity Date.
The financial covenants set out in this Clause 17.4 are subject to
evaluation each quarter upon presentation of the quarterly results of
the Borrower and as set out in the relevant Compliance Certificate.
17.5 Compliance Certificate
The Borrower undertakes to provide the Agent (on behalf of the Banks)
with a Compliance Certificate in the form set out in Schedule 9 as soon
as possible and in any event within five Business Days after the
presentation of the Borrower's quarterly financial results, first time
at 31 December 2002, enabling the Agent to observe the compliance with
the financial covenants set out in Clause 17.4.
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17.6 Information - Miscellaneous
The Borrower shall supply to the Agent:
(a) promptly, such specific financial or other information regarding
the financial condition and operations of the Borrower, the
Parent or the Guarantors or such other information as the Agent
may reasonably request;
(b) promptly upon becoming aware of them, relevant details of any
material litigation, arbitration or administrative proceedings
which are current or, to its knowledge, threatened or pending
against the Borrower, the Parent or any of the Guarantors and
which might, if adversely determined, be reasonably expected to
have a material adverse effect on the ability of the Borrower,
the Parent or any of the Guarantors to perform their respective
obligations under the Transaction Documents (as the case may
be), and further details of any such matters previously
disclosed to the Agent, if the likelihood of an adverse
determination has increased, as the Agent may reasonably
request; and
(c) promptly upon becoming aware of the same, relevant details of
any Event of Default.
17.7 Transaction Documents
The Borrower shall not make or agree and shall procure that none of the
Guarantors, the Parent or Faraway makes or agrees to any changes to any
of the Transaction Documents or waive any of the terms thereof or
release any other party from any of its material obligations under the
Transaction Documents.
17.8 Negative Pledge and no further borrowings or investments
Except as contemplated by this Agreement and the Transaction Documents,
the Borrower shall not and shall procure that none of the Guarantors,
the Parent or (in respect of Xxxxx Xxxx) Faraway does not:
(a) create, incur or assume any Security Interest on any of the
Vessels or Xxxxx Xxxx or any of their other assets (including
the shares in the Guarantors, the shares in the Parent, the
shares in the Borrower, the shares in Faraway and the Borrower's
accounts with the Agent, but for the sake of clarity, excluding
the assets of any Subsidiary of the Parent which is not
mentioned in this Clause 17.8), and not make any assignment of
right to receive any earnings or monies in relation to any of
the Vessels or Xxxxx Xxxx or any of their other assets, except
for the Permitted Encumbrances; or
(b) make any investment of any nature except as required by the
relevant class society or any other relevant authorities in
respect of the operation of any of the Vessels or Xxxxx Xxxx or
capital expenditure in upgrading a Vessel or Xxxxx Xxxx to meet
the requirements of a third party charterer or on upgrading or
improving any Vessel or Xxxxx Xxxx for other operational
purposes provided that such expenditure on any Vessel or Xxxxx
Xxxx does not in any period of 30 consecutive months exceed USD
5,000,000; or
Page 30
(c) incur any Indebtedness of any nature or incur any other debt or
obligations; or
(d) incur or permit to exist any Borrowed Money of any member of the
Golar Gas Group except for Borrowed Money pursuant to the
Security Documents, Borrowed Money owing by the Borrower or a
wholly owned subsidiary of the Borrower to the Borrower or
another wholly owned subsidiary of the Borrower (other than
Oxbow and Golar Maritime) and subordinated debt.
without the prior written consent of the Banks.
17.9 Dividends/distributions
The Borrower undertakes not to pay any dividends or any other
distributions (including group contributions and cash pooling
arrangements) or make any loans to its shareholder(s) or guarantee or
otherwise secure any indebtedness thereof or reduce its equity in order
to make any distributions thereof to its shareholder(s), and the
Borrower shall procure that no dividends are paid by the Parent until
the Loan has been repaid in full without the prior written consent of
the Banks.
Regardless of the above, dividends or other distributions received from
Faraway in respect of Xxxxx Xxxx may be distributed freely by the
Borrower as dividends or otherwise, subject to the compliance by the
Borrower with all of the terms of this Agreement and the USD 325 mill.
Facility Agreement.
17.10 Shareholders
The Borrower shall not and shall procure that the Parent does not agree
to any transfer of shares, the granting of options of ownership,
issuance of further shares or change in ultimate ownership of the
Borrower, without the prior written consent of the Agent (on behalf of
the Banks).
17.11 Ownership, class or flag
The Borrower shall procure that each of the Vessels are registered in
the Liberian Ship Registry, and that no change of flag, class or ship
registry of any of the Vessels take place without the prior written
consent of the Agent (on behalf of the Banks).
17.12 Operation of the Vessels etc.
(a) Unless otherwise agreed with the Agent (on behalf of the Banks),
the Vessels shall be employed under the relevant Charter and
Xxxxx Xxxx shall be employed under the Xxxxx Xxxx Charter.
(b) The Borrower shall procure that no amendment or supplement is
made to, or any waiver of any of the terms of the Charters, the
Management Agreements or the Xxxxx Xxxx Charter are made or
agreed to, save for immaterial amendments, supplements and
waivers considered to be necessary for the ordinary operation of
the Vessels or Xxxxx Xxxx and which will have no negative impact
of the earnings attributable to any of the Vessels under the
relevant Charters or of Xxxxx Xxxx under the Xxxxx Xxxx Charter.
(c) The Borrower shall procure that no change of Manager takes place
without the prior written approval of the Agent.
Page 31
(d) The Borrower undertakes that no other agreement related to the
chartering and operation of any of the Vessels or Xxxxx Xxxx
exceeding twelve months or any pooling arrangement related to
the Earnings of any of the Vessels or Xxxxx Xxxx are entered
into without the prior written consent of the Agent (on behalf
of the Banks). The Borrower shall procure that such agreements
are entered into and such notifications given as may be required
to perfect the assignment of such contracts of employment to the
Agent (on behalf of the Banks).
(e) The Borrower undertakes not to charter in any tonnage from any
person and shall procure that none of the Owning Companies or
(in respect of Xxxxx Xxxx) Faraway charters in any additional
tonnage from any person save for the Vessels or Xxxxx Xxxx (as
the case may be).
17.13 Accounts
The Borrower shall maintain all its bank accounts with the Agent.
17.14 Insurances
(a) The Borrower shall procure that each of the Owning Companies
keep each of the Vessels fully insured against such risks
(including, but not limited to, Hull and Machinery, Hull
Interest, Protection & Indemnity (including a maximum cover for
Excess Oil Pollution and Pollution & Indemnity term cover as
amended effective from 20 February 2000), War Risk and Offhire),
in all cases in such amount, on such terms (always applying
Norwegian law or such other law as the Agent may approve in
writing and including terms of the Norwegian Marine Insurance
Plan of 1996 or equivalent terms in relation to losses payable
thereunder) and with such insurance brokers and with such
insurers as the Agent may approve with the agreement of the
Security Agent.
(b) The insurance value against Total Loss of the Vessels shall at
all times be equal to or higher than the higher of the total
Market Value of the Vessels and 120% of the aggregate
outstanding amount at any time under the USD 325 mill. Facility
Agreement and this Agreement. The Offhire insurance of the
Vessels shall furthermore, at all times cover up to 180 days per
claim less a 14 day deductible period at rates at least as high
as due under the Charters (as appropriate).
(c) Not later than two Business Days prior to the first Drawdown
Date hereunder, the Borrower shall deliver to the Agent a
certificate from an insurance broker acceptable to the Agent
evidencing that all the insurances required under this Clause
17.14 have been effected as set out herein and are in full force
and effect.
(d) Not later than fourteen days prior to the expiry date of the
relevant insurances, the Borrower shall deliver to the Agent a
certificate from the insurance broker(s) through whom the
insurances relevant to each of the Vessels have been placed,
evidencing that all insurances referred to under (a) and (b)
above have been renewed and taken out in respect of each of the
Vessels with insurance values as required under (a) and (b)
above, that such insurances are in full force and effect and
that the Agent's and the Banks' interest therein (as second loss
payees) have been noted by the relevant insurers.
(e) The Borrower shall procure that each of the Vessels always is
employed in conformity with the terms of the instruments of
insurances (including any warranties expressed or implied
therein) and complies with such requirements as to extra premium
or otherwise as the insurers may prescribe.
(f) The Borrower shall make no change to the insurances as described
under (a) and (b) above without the prior written consent of the
Agent (on behalf of the Banks).
Page 32
(g) If any of the insurances referred to above form part of a fleet
cover, the Borrower shall procure that the insurance broker(s)
shall (if required by the Agent) undertake to the Agent that
they shall neither set off against any claims in respect of any
Vessel any premiums due in respect of other vessels under such
fleet cover or any premiums due for other insurances, nor cancel
the insurance for reason of non-payment of premiums for the
other vessels under such fleet cover or of premiums for such
other insurances, and shall undertake to issue a separate policy
in respect of each Vessel is and when so requested by the Agent.
17.15 Total Loss
In the event that any of the Vessels shall suffer a Total Loss, the
Borrower shall, and procure that each of the Owning Companies within a
period of 90 days after the Total Loss, obtain and present to the Agent,
a written confirmation from the relevant insurers that the claim
relating to the Total Loss has been accepted in full, and the insurance
proceeds shall as soon as they have been released be paid to the Agent
(on behalf of the Banks) and subject to the First Deeds of Assignment.
17.16 Tax filings and payment of Taxes
The Borrower undertakes to file or cause to be filed all tax returns
required to be filed in all jurisdictions in which it and any other
member of the Golar LNG Group are situated or carry on business or are
otherwise subject to taxation and pay all Taxes shown to be due and
payable on such returns or any assessments made against it (other than
those being contested in good faith where such payment may be lawfully
withheld) and adequate reserves have been made for such payments should
it be found to be payable.
17.17 No merger etc.
The Borrower will not enter into, and procure that none of the Owing
Companies enters into any form of amalgamation, merger, de-merger,
split-up, consolidate with any other person or company or any form of
reconstruction or reorganisation without the prior written consent of
the Banks and it will not enter into any sales or sale / and leaseback
arrangements without the prior written approval of the Banks.
17.18 Compliance with Environmental Laws
The Borrower shall procure the compliance by the companies in the Golar
LNG Group in all material respects with all Environmental Laws
applicable to such company or any of the Vessels or Xxxxx Xxxx,
including without limitation, requirements relating to xxxxxxx and
establishment of financial responsibility and to obtain and comply with
all Environmental Approvals applicable to such company and/or any of the
Vessels or Xxxxx Xxxx.
17.19 Laws and regulations
The Borrower shall procure that the business of the companies in the
Golar Gas Group shall at all times be conducted in a manner consistent
with then applicable statutory and regulatory requirements, including
without limitation any Environmental Laws.
17.20 No prepayments under the USD 325 mill. Facility Agreement
The Borrower undertakes that it will not make any prepayments under the
USD 325 mill. Facility Agreement other than mandatory prepayments in
accordance with the terms of the USD 325 mill. Facility Agreement.
17.21 Interest Rate Hedging
The Borrower shall, at any time upon the written request of the Agent
(on behalf of the Banks), enter into such interest rate hedging
instruments in respect of the Loan at such terms and conditions as are
satisfactory to the Banks.
17.22 Business of the Borrower and the Owning Companies, transactions with
affiliates
The Borrower and each of the Owning Companies shall maintain their
business as carried out at the date hereof and shall not undertake any
other business.
Further, the Borrower shall ensure that any transactions with any
affiliated party is carried out on commercial terms and subject to arms
length principles.
Page 33
17.23 Undertakings concerning Xxxxxxx and Xxxxx Xxxx
The Borrower undertakes that it will, throughout the Security Period,
use its best efforts to cause Faraway to ensure the following, which
best efforts shall include, without limitation, giving instructions to
directors of Faraway elected or appointed by Oxbow or Golar Maritime and
otherwise voting its Faraway shares in order to ensure that:
(a) Faraway does not create, incur, assume or suffer to exist or
directly or indirectly guarantee or in any other manner become
directly or indirectly liable for the payment of any Borrowed
Money secured by an Encumbrance over Xxxxx Xxxx other than
Borrowed Money under the Faraway Loan Agreement and any
refinancing as contemplated under (d);
(b) Faraway does not create, incur, assume or suffer to exist any
Encumbrance of any kind upon the Xxxxx Xxxx, her Earnings,
Insurances or requisition compensation or the Xxxxx Xxxx Charter
(other than Permitted Encumbrances);
(c) Faraway does not merge or consolidate with any other person save
with the prior written consent of the Banks (not to be
unreasonably withheld if such merger or consolidation will have
no material adverse effect on the overall value of the security
constituted by the Security Documents at such time); and
(e) not refinance the existing Indebtedness under the Faraway Loan
Agreement in respect of Xxxxx Xxxx without the prior written
consent of the Banks (not to be unreasonably withheld) provided
that it shall be reasonable for the Banks to refuse their
consent if such refinancing will have a material adverse effect
on the overall value of the security constituted by the Security
Documents at such time.
17.24 Disposals
The Borrower shall not and shall procure that none of the Guarantors,
the Parent or Faraway does not, sell, transfer, lease or otherwise
dispose of all or a substantial part of the assets of the Borrower or of
the Golar Gas Group taken as a whole (whether by one transaction or a
series of transactions and whether related or not) without the prior
written consent of the Agent.
18 Default
18.1 Events of Default
Each of the events set out below is an Event of Default (whether or not
caused by any reason whatsoever outside the control of the Borrower or
any other person):
Page 34
18.1.1 Non-payment
The Borrower does not pay on the due date an amount payable by it under
this Agreement at the place at, and in the currency in which it is
expressed to be payable, provided that if such failure to pay has arisen
as a consequence of an administrative or technical error only then such
event shall not be an Event of Default unless such failure continues for
a period in excess of five Business Days.
18.1.2 Breach of other obligations
The Borrower does not comply with (i) any provision of this Agreement
(other than Clause 18.1.1) or (ii) any of the provisions of the USD 325
mill. Facility Agreement (or under any of the First Security Documents)
provided that such default has been declared under the USD 325 mill.
Facility or any of the First Security Documents, - and such
non-compliance is considered by the Majority Banks (as defined in Clause
19.15) to be material and provided that if such non-compliance is, in
the opinion of the Majority Banks, capable of remedy:
(i) the Agent notifies the Borrower of such non-compliance;
and
(ii) such non-compliance remains unremedied for a period of
fifteen Business Days after such notice of
non-compliance has been sent.
18.1.3 Misrepresentation
A representation, warranty or statement made or repeated in or in
connection with this Agreement or in any document delivered by or on
behalf of the Borrower in connection with this Agreement was incorrect
or misleading in any respect when made or deemed to be made or repeated,
unless such misrepresentation is remedied within seven days after notice
from the Agent.
18.1.4 Cross-default
An event of default howsoever described (or any event which with the
giving of notice, lapse of time, determination of materiality or
fulfilment of any other applicable condition or any combination of the
foregoing would constitute such an event of default) occurs under any of
the Transaction Documents, or under any other agreement related to the
Indebtedness of the Borrower and/or the Parent and/or the Guarantors
and/or Faraway.
18.1.5 Liens
A maritime or other lien, arrest, distress or similar charge is levied
upon, or against, any of the Vessels, the earnings or any other part of
the assets of the Borrower, the Parent or any of the Guarantors and is
not discharged and satisfactory security for the release of such lien,
arrest, distress or charge is not given within ten Business Days after
the Borrower, the Parent or any of the Guarantors became aware of the
same.
18.1.6 Insolvency
An order of a competent court or an event analogous thereto shall be
made or any effective resolution passed with a view to the bankruptcy,
commencement of composition proceedings, debt negotiations, liquidation,
winding-up or similar event of the Borrower, the Parent or any of the
Guarantors.
Page 35
18.1.7 Admittance of non-payment
The Borrower is unable or admits in writing its inability to pay its
lawful debts as they fall due.
18.1.8 Termination of business
The Borrower, the Parent or any of the Guarantors ceases or threatens to
cease to carry on its business, engages in any business other than i.a.
the ownership, operation, chartering or other use of the Vessels and
activities related thereto (as the case may be), including the ownership
of stock companies involved in the shipping business or effectuate any
mergers, splits or de-mergers without the prior written consent of the
Agent (on behalf of the Banks).
18.1.9 Permits
Any licence, consent, permission or approval required in order to
enforce, complete or perform the Agreement and/or the Transaction
Documents is revoked, terminated or modified in a manner unacceptable to
the Agent, and is not remedied within fourteen days after notice from
the Agent.
18.1.10 Impossibility or illegality
It becomes impossible or unlawful for the Borrower to fulfil any of the
terms of the Transaction Documents to which it is a party, for the Agent
to exercise any right or power vested in the Agent under the Security
Documents, or the security created by any of the Security Documents is
imperilled, or for any reason whatsoever ceases to be valid and
enforceable with its intended priority, and is not remedied within
fourteen days after notice from the Agent.
18.1.11 Transaction Documents
Any of the Transaction Documents are materially amended or terminated
without the prior written consent of the Agent (on behalf of the Banks),
or any waivers of any material terms thereof are agreed thereunder.
18.1.12 Material adverse change
Any event or series of events occurs which, in the opinion of the Agent
(on behalf of the Banks), may have a material adverse effect on the
ability of any of the Borrower and/or the Parent and/or the Guarantors
and/or Faraway to comply with their respective obligations under any of
the Transaction Documents unless such adverse effect is remedied within
fourteen days after notice from the Agent.
18.1.13 Ownership
(a) The existing ultimate shareholder of the Ultimate Owner,
Greenwich Holdings Ltd., not maintaining a minimum 25%
shareholding and corresponding voting rights in the Ultimate
Owner.
(b) Any change in control of the ownership of any of the Borrower,
the Parent or the Subsidiary Guarantors.
Page 36
(c) the Ultimate Owner is not maintaining its status as a listed
company at the Oslo Stock Exchange, Nasdaq and/or the New York
Stock Exchange.
18.1.14 Technical condition of the Vessels
Any class recommendation for any of the Vessels or Xxxxx Xxxx is not
complied with when due and the same has not been remedied within
fourteen days from the date the Borrower, any of the Owning Companies or
Faraway was notified or otherwise aware of such non-compliance.
18.1.15 Breach or cancellation of any Charter etc.
Any Charter of any Vessel or the Xxxxx Xxxx Charter is cancelled or
terminated by the relevant Charterer by reason of the Owning Companies'
or Faraway's breach.
18.2 Remedies
On and at any time after the occurrence of an Event of Default and
whilst such Event of Default is continuing unremedied and unwaived, the
Agent may, and shall if so directed by the Majority Banks (as defined in
Clause 19.15), by notice to the Borrower:
(a) cancel the Facility if the Facility Amount is not drawn.
(b) demand that all or part of the Loan, together with accrued
interest, and all other amounts accrued under this Agreement be
immediately due and payable, whereupon they shall become
immediately due and payable.
(c) without prejudice to any of the Banks' other rights, with or
without notice to the Borrower, take such other action as is
available to the Banks under the Agreement and the Security
Documents.
19 The Agent
19.1 Authorisation
Each Bank irrevocably authorises the Agent on its behalf to perform such
duties and to exercise such rights, powers and discretion that are
specifically delegated to the Agent by the terms of this Agreement and
the Security Documents, together with such rights, powers and discretion
that are incidental hereto. The Agent shall have only those duties that
are expressly specified in this Agreement and the Security Documents.
Without prejudice to the binding nature of such duties, they are solely
of a mechanical and administrative nature.
19.2 Relationship
The relationship between the Agent and the Banks is that of agent and
principal only. Except as regards it holding title to the Mortgages as
security trustee for the Banks; nothing in this Agreement constitutes
the Agent as trustee or fiduciary for any other Party or any other
person and the Agent need not hold in trust any moneys paid to it for a
Party or be liable to account for interest on those moneys. With respect
to the Mortgages each of the Banks hereby appoints the Agent as its
security trustee/mortgage holder with full power to receive, hold,
administer and enforce the Mortgage for the benefit of the Banks.
Page 37
19.3 Directions
The Agent will be fully protected if it acts in accordance with the
instructions of the Banks in connection with the exercise of any right,
power or discretion or any matter not expressly provided for in this
Agreement. Any such instructions given by the Banks will be binding on
all of the Banks. In the absence of such instructions, the Agent may act
in relation thereto as it considers being in the best interests of all
of the Banks. The Agent may not commence legal proceedings in a Bank's
name without such Bank's consent.
19.4 Responsibility
Neither the Agent, nor any of their officers, employees or agents is
responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or
sufficiency of this Agreement or the Security Documents or any
other document;
(b) the collectability of amounts payable under this Agreement; or
(c) the accuracy of any statements (whether written or oral) made in
or in connection with this Agreement.
19.5 Default
(a) The Agent shall not be required to ascertain or inquire as to
the performance of the Borrower of the terms of this Agreement
or whether or not a Default has occurred. The Agent shall not be
deemed to have knowledge of the occurrence of a Default unless
the Agent has received a written notice from a Party, describing
such Default and stating that the event is a Default. The Agent
shall refrain from taking such action with respect to such
Default as shall be reasonably directed by the Banks.
Until the Agent shall have received such directions, the Agent
may (but shall not be obliged to) take or refrain from such
action with respect to such Default as it shall see fit.
(b) The Agent may require the receipt of security satisfactory to it
from any Bank, whether by way of payment in advance or
otherwise, against any liability or loss which it will or may
incur in taking any proceedings or action arising out of or in
connection with this Agreement before it commences those
proceedings or takes that action.
19.6 Liability
Neither the Agent nor any of its employees or agents shall be liable to
any Bank for any action taken or omitted under or in connection with
this Agreement, unless caused by gross negligence or wilful misconduct.
19.7 Reliance
The Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of,
the proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed to
be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in the Agent's employment and
those representing a Party other than the Agent).
Page 38
19.8 Independent Evaluation
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with this Agreement, each
Bank severally represents and warrants to the Agent that:
(a) it has made its own independent evaluation of the financial
condition and affairs of the Borrower and its related entities
in connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by the
Agent in connection herewith; and
(b) it shall continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities while
any amount is or may be outstanding under this Agreement or its
Commitment is in force.
19.9 Notices and information
(a) The Agent shall without undue delay forward to the individual
concerned the original or a copy of any document which is
delivered to the Agent by a Party for that individual.
(b) The Agent shall supply each Bank with a copy of each document
received by the Agent under Xxxxxx 4 (Conditions precedent).
(c) Except where this Agreement specifically provides otherwise, the
Agent is not obliged to review or check the accuracy or
completeness of any document it forwards to another Party.
19.10 No Accounting
The Agent shall, for as long as it is a Bank, have the same rights and
powers under this Agreement as any other Bank and may exercise those
rights and powers as though it were not, as the case may be, the Agent.
The Agent may carry on any business with the Borrower or its related
entities, act as agent or trustee for, or in relation to any financing
involving, the Borrower or its related entities and retain any profits
or remuneration in connection with their activities under this Agreement
or in relation to any of the foregoing.
19.11 Indemnity
(a) Without limiting the liability of the Borrower under this
Agreement, the Banks agree to indemnify the Agent on demand for
their proportion of any and all liabilities or losses incurred
by or asserted against the Agent in any way relating to or
arising out of its acting as Agent, except to the extent that
the liabilities or losses have arisen from the Agent's gross
negligence or wilful misconduct.
(b) A Bank's proportion of the liabilities or losses set out in
paragraph (a) above will be the proportion which its
participation in the Facility bears on the date of the demand.
If, however, there is no part of the Facility outstanding on the
date of demand, then the proportion will be the proportion which
its Commitment bears to the Commitments of all the Banks at the
date of demand or, if the Commitment has then been cancelled,
bore to the Commitments immediately before being cancelled.
Page 39
(c) The Borrower shall forthwith on demand reimburse each Bank for
any payment made by it under paragraph (a) above provided that
the Borrower shall not thereby be liable for any additional
costs for which it would not otherwise be liable.
(d) Without prejudice to the liability of the Borrower, each Bank
shall reimburse the Agent the amount of such Bank's pro rata
share of charges and expenses covered under, but not reimbursed
by the Borrower under, Clause 21 (Expenses) below.
19.12 Compliance
(a) The Agent may refrain from doing anything which would or might,
in its opinion, constitute a breach of any law or regulation or
be otherwise actionable at the suit of any person, and may do
anything which, in its opinion, is necessary or desirable to
comply with any law or regulation of any jurisdiction.
(b) Without limiting paragraph (a) above, the Agent does not need to
disclose any information relating to the Borrower or any of its
related entities if the disclosure might, in the reasonable
opinion of the Agent, constitute a breach of any law or
regulation or any duty of secrecy or confidentiality or be
otherwise actionable at the suit of any person.
19.13 Resignation
(a) If the Banks so direct, due to a default by the Agent hereunder,
or due to a conflict of interest between the Agent's duties
hereunder and other interests the Agent may have which involve
the Borrower, the Agent shall resign by giving notice to the
Banks and the Borrower, in which case the Banks may, with the
Borrower's prior written approval, such approval not to be
unreasonably withheld, appoint a successor Agent.
Page 40
(b) The Agent may, with the consent of the Borrower (not to be
unreasonably withheld or delayed), resign by giving notice
thereof to the Banks and the Borrower. In that event, the Banks
may, with the consent of the Borrower (not to be unreasonably
withheld or delayed), appoint a successor Agent. If the Banks
have not, within sixty days after such notice of resignation,
appointed a successor Agent which shall have accepted such
appointment, the retiring Agent shall have the right to appoint
a successor Agent. The resignation of the retiring Agent and the
appointment of any successor Agent shall both become effective
upon the successor Agent, subject as provided below, notifying
all the parties hereto in writing that it accepts such
appointment, whereupon the successor Agent shall succeed to the
position of the retiring Agent and the term Agent herein shall
mean the successor Agent. This Clause shall continue to benefit
a retiring Agent in respect of any action taken or omitted by it
hereunder while it was Agent.
19.14 Banks
The Agent may treat each Bank as a Bank, entitled to payments under this
Agreement until it has received not less than five Business Days' prior
notice from that Bank to the contrary. The Agent shall maintain a list
of the Banks and their respective addresses for notices, and shall,
promptly upon request from any Party from time to time, supply a copy of
that list to that Party.
19.15 Votes
Any decision proposed to be made by and between the Banks is adopted if
Banks representing 66,66% or more of the Loan (the "Majority Banks") or
(to the extent not drawn) the Facility Amount have voted in favour of
such decision, always provided that a decision to make any amendment,
variation or waiver in respect of the following requires unanimous
agreement by and between all Banks:
(a) the dates, or the amount of, payment of principal, interest,
fees or other sums payable hereunder;
(b) the currency in which any payment hereunder is to be made;
(c) the definition of the Margin;
(d) a change to a Bank's participation in accordance with Schedule
1;
(e) where this Agreement expressly provides for the consent of all
Banks;
(f) any change to or release of any Security Document; and
(g) any change to this Clause 19.15.
20 Fees and Commission
20.1 Arrangement fee
The Borrower shall pay to the Agent a non-refundable arrangement fee of
(i) 1% of the Facility Amount, payable at the day of the signing of this
Agreement and (ii) 0.25% of the available Facility Amount payable on 30
November 2004.
20.2 Agency fee
The Borrower shall pay to the Agent an annual non-refundable agency fee
of USD 22,000, being payable at the first Drawdown Date and thereafter
in advance on each anniversary of this Agreement.
Page 41
20.3 Commitment fee
The Borrower shall pay to the Agent (for distribution among the Banks as
separately agreed) a commitment fee of 1.0% per annum of the undrawn
Facility Amount accruing from 19 September 2002 and increasing to 1.25%
per annum from 30 November 2004 and until the expiry of the Commitment
Period, being payable quarterly in arrears by reference to successive
periods each ending at successive three-monthly intervals.
21 Expenses
21.1 Initial Expenses
The Borrower shall forthwith upon demand reimburse the Agent for the
charges and expenses (including internal and external legal fees)
incurred by it in connection with:
(a) the negotiation, preparation, printing and execution of this
Agreement and any other documents referred to in this Agreement;
(b) the execution and registration of the Security Documents;
(c) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested (or, in the case of
a proposal, made) by or on behalf of the Borrower and relating
to this Agreement or a document referred to in this Agreement;
and
(d) any other matter, not of an ordinary administrative nature,
arising out of or in connection with this Agreement.
21.2 Enforcement Expenses
The Borrower shall forthwith upon demand reimburse the Agent and/or a
Bank (as the case may be) for the charges and expenses (including
internal and external legal fees) incurred by it in connection with the
enforcement of, or the preservation of any rights under, this Agreement
and the Security Documents.
22 Indemnities
22.1 General Indemnity
The Borrower shall forthwith upon demand indemnify the Agent and each
Bank against any loss or expenses (including funding breakage costs)
which the Agent or that Bank properly incurs and which the Agent or the
Bank certifies (in a certificate containing reasonable detail) that it
has incurred as a consequence of:
(a) the occurrence of any Event of Default;
(b) the operation of Clause 18.2 (Remedies);
(c) any repayment or prepayment of principal or payment of an
overdue amount being made otherwise than on the last day of a
relevant Interest Period or Designated Interest Period (as
defined in Clause 7.4 (Default interest)) relative to the amount
so repaid, prepaid or paid; and
(d) a Drawing not being advanced after the Borrower has delivered a
Drawdown Notice or the Loan (or part of the Loan) not being
prepaid in accordance with a notice of prepayment.
The liability of the Borrower in each case includes any loss of margin
or other loss or expense on account of funds borrowed, contracted for or
utilised to fund any amount payable under this Agreement, but the
Borrower's liability shall in no circumstances extend to any loss or
expense to the extent that it arises as a consequence of any gross
negligence or wilful default of a Bank.
Page 42
22.2 Currency Indemnity
If:
(a) any amount payable by the Borrower hereunder in connection
herewith is received by the Agent or any Bank in a currency (the
"Payment Currency") other than that agreed to be payable
hereunder (the "Agreed Currency"), whether as a result of any
judgement or order or the enforcement thereof, the liquidation
of the Borrower or otherwise howsoever; and
(b) the amount procured by converting the Payment Currency so
received into the Agreed Currency is less than the relevant
amount of the Agreed Currency,
then, the Borrower shall indemnify the Agent and each Bank for the
deficiency and in respect of any loss sustained as a result. For this
purpose, such conversion shall be made at such rate of exchange, on such
date and in such market as is determined by the Agent as being most
appropriate for such conversion. The Borrower shall in addition pay the
costs of such conversion.
23 Amendments
23.1 Procedure
(a) Any term of this Agreement and the Security Documents may only
be amended or waived with the written agreement of the Borrower
and, if authorised by the Banks and the Agent, the Agent shall
effect, on behalf of the Banks, any amendment or waiver to which
they have agreed.
(b) The Agent shall promptly notify the other Parties of any
amendment or waiver effected under paragraph (a) above and any
such amendment or waiver shall be binding on all the Parties.
All communication related to amendments and/or waivers hereunder
shall be made between the Borrower and the Agent (on behalf of
the Banks).
23.2 Waivers and remedies cumulative
The rights of each Bank under this Agreement:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
24 Assignment
24.1 Assignment by the Borrower
The Borrower may not assign, transfer, novate or dispose of any of, or
any interest in, its rights and obligations under this Agreement.
24.2 Assignment by the Banks
Any Bank (the "Assignor") may at any time at its own expense (and
provided that there shall be no additional or increased costs to the
Borrower) assign, transfer or novate any of its rights and obligations
in respect of an amount of at least USD 500,000 (or, if less, its
Commitment in full or its proportional part of the Loan) under this
Agreement to any of its or its holding company's subsidiaries, or with
the prior written consent of the Agent, such consent not to be
unreasonably withheld, and in consultation with the Borrower, to another
bank or financial institution (such subsidiary or bank or institution
being the "Assignee"), provided however that:
Page 43
(a) transfer of obligations will be effective only if the Assignee
confirms to the Agent and the Borrower that it undertakes to be
bound by the terms of this Agreement as a Bank in form and
substance satisfactory to the Agent. On the transfer becoming
effective in this manner the Assignor shall be relieved of its
obligations under this Agreement to the extent that they are
transferred to the Assignee.
(b) The Assignor is not responsible to the Assignee for;
(i) the execution, genuineness, validity, enforceability or
sufficiency of this Agreement or any other document;
(ii) the collectability of amounts payable under this
Agreement; or
(iii) the accuracy of any statements (whether written or oral)
made in or in connection with this Agreement.
(c) The Assignee shall confirm to the Assignor and the other Banks
that it;
(i) has made its own independent investigation and
assessment of the financial condition and affairs of the
Borrower and its related entities in connection with its
participation in this Agreement and has not relied
exclusively on any information provided to it by the
Assignor in connection with this Agreement; and
(ii) will continue to make its own independent appraisal of
the creditworthiness of the Borrower and its related
entities while any amount is or may be outstanding under
this Agreement or any Commitment is in force.
(d) Any reference in this Agreement to a Bank includes the Assignee
but excludes a Bank if no amount is or may be owed to or by it
under this Agreement and its Commitment has been cancelled or
reduced to nil.
(e) The Borrower shall not incur any costs in connection with the
transfer by Xxxxx under this Clause 24.2.
25 Sharing of payments
25.1 Redistribution
If any amount owing by the Borrower under this Agreement to a Bank (the
"recovering Bank") is discharged by payment, set-off or any other manner
other than through the Agent in accordance with Clause 13 (Payments) (a
"recovery"), then;
(a) the recovering Bank shall, within three Business Days, notify
details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of
the amount which the recovering Bank would have received had the
recovery been received by the Agent and distributed in
accordance with Clause 13 (Payments);
(c) subject to Clause 14.2 (Exceptions), the recovering Bank shall,
within three Business Days of demand by the Agent, pay to the
Agent an amount (the "redistribution") equal to the excess;
(d) the Agent shall treat the redistribution as if it were a payment
by the Borrower under Clause 13 (Payments) and shall pay the
redistribution to the Banks (other than the recovering Bank) in
accordance with Clause 13.8 (Partial payments); and
(e) after payment of the full redistribution, the recovering Bank
will be subrogated to the relevant portion of the claims paid
under paragraph (d) above and the Borrower will owe the
recovering Bank a debt which is equal to the redistribution and
of the type originally discharged.
Page 44
25.2 Reversal of redistribution
If under Clause 25.1 (Redistribution):
(a) A recovering Bank must subsequently return a recovery, or an
amount measured by reference to a recovery, to the Borrower; and
(b) the recovering Bank has paid a redistribution in relation to
that recovery,
each Bank shall, within three Business Days of demand by the recovering
Bank through the Agent, reimburse the recovering Bank all or the
appropriate portion of the redistribution paid to that Bank. Thereupon,
the subrogation in Clause 25.1(e) will operate in reverse to the extent
of the reimbursement.
25.3 Exception
(a) A recovering Bank need not pay a redistribution to the extent
that it would not, after the payment, have a valid claim against
the Borrower in the amount of the redistribution pursuant to
Clause 25.1(e).
(b) A Bank is not entitled to participate in a redistribution if the
redistribution results from the proceeds of a judicial
enforcement order obtained by the recovering Bank and the other
Bank had adequate notice of and opportunity to participate in
the proceedings concerned or bring its own proceedings but did
not do so.
26 Tax Lease Option
If the Borrower or an Owning Company wishes to incur Borrowed Money by
means of a Capitalised Lease Obligation in respect of a Vessel, the
Banks shall, if so requested in writing by the Borrower, discuss in good
faith for a period of up to 60 days the possible restructuring of the
security arrangements contemplated by this Agreement so as to permit
such incurrence of Borrower Money but such restructuring may only be
implemented if all of the Banks approve it in writing (such approval not
to be unreasonably withheld) and such supplemental documentation entered
into and conditions precedent fulfilled as the Banks may in their
absolute discretion require. It is acknowledged by all parties that, as
set out in the telefax from the Banks to the Borrower dated 28 August
2002, the restructuring of the security may include the granting of
security to secure the relevant Capitalised Lease Obligation and
postponement and/or replacement of the Mortgages with alternative
security acceptable to the Banks to be agreed at the relevant time.
If such restructuring is approved in principle by the Banks, the Banks
shall co-operate in good faith with the Borrower in the implementation
of such restructuring within such period as may be agreed at the
relevant time.
If in the course of seeking the approval of the Banks to the Tax Lease
Option, the Majority Banks agree to the restructuring proposal (the
"consenting banks") then the consenting banks shall if requested to do
so by the Borrower, co-operate with the Borrower to try to arrange for
the Commitment of the Banks who do not agree to the restructuring
proposal (the "dissenting banks") to be transferred to a substitute or
replacement bank ("a substitute bank") provided that if no substitute
bank can be found within such reasonable period as may be agreed by the
Agent at the relevant time to assume the Commitment of the dissenting
bank or banks, the Borrower agrees that the approval of all the Banks to
the Tax Lease Option shall be deemed to be required.
Page 45
27 Severability
If a provision of this Agreement is or becomes illegal, invalid or
unenforceable in any competent jurisdiction, that shall not affect the
validity or enforceability in that jurisdiction of any other provision
of this Agreement or the validity or enforceability in other
jurisdictions of that or any other provision of this Agreement.
28 Notices
28.1 Giving of notices
All notices or other communications under or in connection with this
Agreement shall be given or made in writing, by letter, telefax or
e-mail. Any such notice or communication will be deemed to be given or
made as follows;
(i) if by letter, when delivered at the address of the
relevant Party;
(ii) if by telefax or e-mail, when received.
However, a notice given in accordance with the above but received on a
day which is not a Business Day or after 4:00 p.m. in the place of
receipt will only be deemed to be given at 9:00 a.m. on the next
Business Day in that place.
28.2 Addresses for notices
(a) The address, the telefax number and e-mail address of each Party
(other than the Agent and the Borrower) for all notices or other
communications under or in connection with this Agreement are
those notified by that Party for this purpose to the Agent on or
before the date it becomes a Party; or any other notified by
that Party for this purpose to the Agent by not less than five
Business Days' notice.
(b) The address, the telefax number and the e-mail address:
(i) of the Agent is:
NORDEA BANK NORGE ASA
X.X.Xxx 1166 Sentrum
Middelthunsgt. 17
0368 Oslo
Norway
Telephone: 00 00 00 00 00 00
Telefax: 00 47 22 48 66 68
E-mail: xxxxx@xxxxxx.xxx
(ii) of the Borrower is:
GOLAR GAS HOLDING COMPANY, INC.
c/o Golar Management Limited
00 Xxxxx Xxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Telephone: 00 00 00 0000 0000
Telefax: 00 44 20 7517 8601
E-mail: xxxxxx.xxxxxxxxx@xxxxx.xxx
or such other address, telefax number and/or e-mail address
and/or marked for such other attention as the Agent or the
Borrower may notify to the other Parties by not less than five
Business Days' prior notice.
(c) All notices from or to the Borrower related to this Agreement
shall be sent through the Agent.
(d) The Agent shall, promptly upon request from any Party, give to
that Party the address, the telefax number and/or e-mail address
of any other Party applicable at the time for the purposes of
this Clause.
Page 46
29 Conflicting provisions
In case of conflict between this Agreement and the terms of any of the
Security Documents, the terms and conditions of this Agreement shall
prevail.
30 Jurisdiction
For the benefit of the Agent and each Bank, the Borrower agrees that
only the courts of Norway shall have jurisdiction to settle any disputes
in connection with this Agreement and accordingly submits to the
non-exclusive jurisdiction of Oslo tingrett. Nothing in this Clause 30
shall limit the right of the Agent or any Bank to start proceedings
against the Borrower in any other court of competent jurisdiction.
31 Governing law
This Agreement is governed by Norwegian law.
32 Service of process
Without prejudice to any other mode of service, the Borrower:
a) irrevocably appoints Frontline Management AS as its agents for
service of process relating to any proceedings before the
Norwegian courts in connection with this Agreement;
b) agrees that failure by its process agent to notify it of the
process will not invalidate the proceedings concerned; and
c) consents to the service of process to any such proceedings
before the Norwegian courts by posting of a copy of the process
to Frontline Management AS, Bryggegt. 3, P.O. Box 1327 Vika,
0112 Oslo, Norway.
Page 47
Schedule 1
Banks and commitments
Banks Commitments
----- -----------
DEN NORSKE BANK ASA USD 20,000,000
Stranden 21
0021 Oslo
Norway
NORDEA BANK NORGE ASA USD 20,000,000
P.O. Box 1166 Sentrum
Middelthunsgt. 17
0368 Oslo
Norway
FORTIS BANK (NEDERLAND) N.V. USD 20,000,000
Oslo Branch Office
Xxxxxxxxxxxxxx 00X
0000 Xxxx
Xxxxxx ______________
USD 60,000,000
Page 48
Schedule 2
Conditions precedent documents
1. In respect of the Borrower, the Parent and each of the Guarantors:
(a) the Memorandum and Articles of Association;
(b) Company Certificate;
(c) Updated Good Standing Certificate;
(d) A resolution of the Board of Directors (and resolution by the
shareholders, if required), authorising the execution of the
Transaction Documents to which it is a party;
(e) Power of Attorney to its representatives for the execution and,
if applicable, registration of the Transaction Documents to
which it is a party;
(f) Secretary's Certificate; and
(g) Evidence of capital structure.
2. The Agreement.
3. The Co-ordination Agreement.
4. The USD 325 mill. Facility Agreement.
5. The Management Agreements.
6. The Charters with addenda.
7. The Charter Guarantees.
8. The Xxxxx Xxxx Charter.
9. Acceptance Letter by the lenders under the USD 325 mill. Facility
Agreement.
10. The Faraway Documents.
11. Omnibus Agreement.
12. The Master Agreement.
Page 49
13. In respect of the Security Documents:
(a) the Deeds of Assignment;
(b) the notices of assignment to and acknowledgement and consent
from the relevant parties as required under the Deeds of
Assignment;
(c) the Pledge of Accounts;
(d) the Pledge of Borrower Shares with the share certificates in
respect of the pledged shares and any other additional document
in relation thereto;
(e) the Subsidiary Pledges (with the share certificates in respect
of the pledged shares) and any other additional document in
relation thereto; and
(f) the Guarantees.
13. In respect of each of the Vessels:
(a) evidence that the Vessel is registered in the name of the
relevant Owning Company in the Liberian Ship Registry, the
Mortgage has been executed and recorded with second priority and
that no other encumbrances or liens are recorded against the
Vessel (save for the First Mortgages);
(b) Memorandum of Particulars;
(c) Consent letter from the Security Agent as First Preferred
Mortgagee under the First Mortgages;
(d) updated class certificate related to the Vessel from the
relevant classification society, confirming that the Vessel is
in class, without extensions or recommendations at the Drawdown
Date; and
(e) copies of insurance policies/cover notes documenting that
insurance cover has been taken out in respect of the Vessel in
accordance with Clause 17.14 (Insurance), and evidencing that
the Agent on behalf of the Banks' security interest in the
insurance policies have been noted in accordance with the
relevant notices and acknowledgements as required under the
Deeds of Assignment at the Drawdown Date.
14. Evidence that all fees, costs and expenses (including internal and
external legal fees and expenses) and other compensation contemplated
thereby, payable to the Banks and the Agent to the extent due, have been
paid.
Page 50
15. All approvals, authorizations and consents required by any government or
other authorities in order for the Borrower, the Parent or any of the
Guarantors to enter into and perform its obligations under this
Agreement and any of the Transaction Documents to which they are a
party.
16. Letters of Quiet Enjoyment issued by the Agent (on behalf of the Banks)
in respect of the BG Vessels, or in respect of M/V Golar Spirit, the
notice of financing issued by the relevant owner.
17. Acknowledgements duly signed by BG/Pertamina in respect of the Letters
of Quiet Enjoyment.
18. Appointment of Frontline Management AS and the acceptance by Frontline
Management AS as the Borrower's process agent in Norway under the
Agreement, the Pledge of Accounts, the Co-ordination Agreement and the
Subsidiary Pledges.
19. Appointment of Frontline Management AS and the acceptance by Frontline
Management AS as the Owning Companies' process agent in Norway under the
Guarantee.
20. Appointment of Frontline Management AS and the acceptance by Frontline
Management AS as Xxxxx's process agent in Norway under the Guarantee.
21. Appointment of Frontline Management AS and the acceptance by Frontline
Management AS as Golar Maritime's process agent in Norway under the
Guarantee.
22. Appointment of Frontline Management AS and the acceptance by Frontline
Management AS as the Parent's process agent in Norway under the Pledge
of Borrower Shares.
23. Appointment of Frontline Management AS and the acceptance by Frontline
Management AS as the Ultimate Owner's process agent in Norway under the
Guarantee.
24. Appointment of Golar Management Limited and the acceptance by Golar
Management Ltd. as the Owning Companies' process agent in the UK under
the Deeds of Assignment.
25. Favourable legal opinions in form and substance satisfactory to the
Agent from lawyers appointed by the Agent on matters concerning all
relevant jurisdictions.
Page 51
Schedule 3
Form of
Drawdown Notice
To: NORDEA BANK NORGE ASA as Agent
Date: [ ] 2002
USD 60,000,000 Second Priority Credit Facility dated 11 October 2002 (the
"Agreement")
We refer to Clause 5 of the Agreement.
Terms defined in the Agreement shall have the same meaning in this Drawdown
Notice.
l. We wish to draw as follows:
(a) Amount: .................................................
(b) Drawdown Date: ..........................................
(c) Interest Period: ........................................
(d) Instructions for payment: ...............................
2. We confirm that each condition specified in Clause 4.2 (specific
conditions) is satisfied on the date of this Drawdown Notice.
By:
GOLAR GAS HOLDING COMPANY, INC.
Authorised Signatory
Page 52
Schedule 4
Form of
Renewal Notice
To: NORDEA BANK NORGE ASA as Agent
Date: [ ]
USD 60,000,000 Second Priority Credit Facility dated 11 October 2002 (the
"Agreement")
We refer to Clause 8.1 (c) in the Agreement. Terms defined in the Agreement
shall have the same meaning in this Renewal Notice.
We hereby:
1. request an Interest Period in respect of the Loan of [ ] months from the
next Interest Payment Date; and
2. confirm that:
(i) no event or circumstance has occurred or is threatening, which
constitutes, or which with the giving of notice or lapse of time
or both, would constitute an Event of Default under the
Agreement; and that
(ii) the representations and warranties contained in Clause 16
(Representations and Warranties) of the Agreement are true,
correct and not misleading at the date hereof as if made with
respect to the facts and circumstances existing at such date.
By:
GOLAR GAS HOLDING COMPANY, INC.
Authorised signatory
Page 53
Schedule 5
Form of
Deed of Assignment
between
[ ]
as Assignor
and
Nordea Bank Norge ASA
as Agent
-------------------------------
Second Priority Credit Facility
in the amount of USD 60,000,000
dated 11 October 2002
-------------------------------
XXXX & WIIG AS
Page 54
THIS DEED OF ASSIGNMENT (the "Deed") dated this [ ] October 2002 is made
between:
(1) [ ] a company incorporated in the Republic of Liberia whose registered
office is at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, as assignor (the
"Assignor"); and
(2) NORDEA BANK NORGE ASA, Middelthunsgt. 17, 0368 Oslo, Norway, as agent
under the Agreement (as defined below) (the "Agent").
WHEREAS
(A) Golar Gas Holding Company, Inc. as borrower (the "Borrower") has been
granted a credit facility for an amount not exceeding USD 60,000,000
(the "Facility") in accordance with an agreement dated 11 October 2002
(as the same hereafter from time to time may be amended referred to as
the "Agreement") entered into among the Borrower, the Financial
Institutions listed in Schedule 1 of the Agreement, the Agent (in its
capacity as agent for the Banks, arranger and bank), Den norske Bank ASA
as arranger and bank and Fortis Bank (Nederland) N.V. as arranger and
bank;
(B) by a time charter dated [__________] as amended by Addendum no. [___]
dated [__________] expiry on or about [__________] and made between the
Assignor and [__________] (the "Charterer") the Assignor agreed to let
and the Charterer agreed to take on time charter for the period and upon
the terms and conditions therein mentioned the vessel [_______]
documented in the name of the Assignor under the laws and flag of the
Republic of Liberia under Official Number [___] (the "Vessel");
(C) pursuant to a guarantee dated [__________] (the "Guarantee") executed by
i.a. the Assignor as Guarantor (as defined in the Agreement) in favour
of the Agent, the Assignor jointly and severally with the other
Guarantors guaranteed to the Agent, for the account and benefit of the
Banks, the payment by the Borrower of all amounts owning under or in
connection with the Agreement;
(D) pursuant to the Agreement and the Guarantee there has been or will be
executed by the Assignor in favour of the Agent a second preferred ship
mortgage (the "Mortgage") on the Vessel and the Mortgage has been or
will be registered under the provisions of Chapter 3 of title 21 of the
Liberian Code of Laws of 1956 Revised as security for the repayment by
the Assignor of the Secured Indebtedness (as defined below);
(E) the Assignor has agreed to enter into this Deed in favour of the Agent
(on behalf of the Banks) in respect of the Assigned Property (as defined
below) as security for the Secured Indebtedness (as defined below);
(F) it is a condition for the utilisation of the Facility that the Assignor
enters into this Deed and grants the securities set out herein in favour
of the Agent;
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(G) this Deed is supplemental to the Guarantee and (when executed) the
Mortgage and to the security thereby created but shall nonetheless
continue in full force and effect notwithstanding any discharge of the
Mortgage; and
(H) the Borrower has entered into the USD 325 mill. Facility Agreement (as
defined in the Agreement) pursuant to which the Assignor has entered
into the First Deed of Assignment (as defined in the Agreement) and the
securities constituted herein and in the Mortgage are in all respects
subject to and subordinate to the rights of the Security Agent (as
defined in the Agreement) under the First Mortgage and the First Deed of
Assignment.
NOW THEREFORE THE PARTIES HERETO HAVE AGREED AS FOLLOWS:
1 Interpretation
1.1 Defined expressions
In this Deed (unless the context otherwise requires) any term or
expression defined in the preamble shall have the meaning ascribed to it
herein. In addition, terms and expressions not defined herein but whose
meanings are defined in the Agreement, shall have the meanings set out
therein.
1.2 Definitions
In this Deed, unless the context otherwise
"Assigned Property" means:
(a) the Charter Earnings; (b) the other Charter Rights; (c) the
Earnings of the Vessel; (d) her Insurances; (e) the Charter
Guarantee(s); and (f) any Requisition Compensation for the
Vessel.
"Charter" means the charter referred to in Recital (B) hereto and any
future charters of the Vessel.
"Charter Documents" means the Charter and any other document in which a
Charter Right has been created.
"Charterer" includes the successor in title and assignees of the
Charterer.
"Charter Earnings" means all money whatsoever payable by the Charterer
to the Assignor under or pursuant to the Charter and/or any guarantee,
security or other assurance given to the Assignor at any time in respect
of the Charterer's obligations under or pursuant to the Charter
including (but without prejudice or to the generality of the foregoing)
all claims for damages in respect of any breach by the Charterer of the
Charter).
"Charter Rights" means all of the rights of the Assignor under or
pursuant to the Charter and any guarantee, security or other assurance
given to the Assignor at any time in respect of the Charterer's
obligations under or pursuant to the Charter including (without
limitation) the right to receive the Charter Earnings.
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"Requisition Compensation" means in relation to the Vessel, all sums of
money or other compensation from time to time payable during the
Security Period by reason of the compulsory acquisition (being the
requisition for title or other compulsory acquisition, requisition,
appropriation, expropriation, deprivation, forfeiture or confiscation
for any reason of the Vessel by an governmental entity or other
competent authority, whether de jure or de facto, but shall exclude
requisition for use or hire not involving requisition of title) of the
Vessel.
"Secured Indebtedness" means the aggregate of the Facility and interest
thereon, default interest, expenses, fees, and all other sums of any
kind at any time which may become owing by the Assignor to the Agent or
any of the Banks under the Guarantee, the Mortgage and this Deed.
1.3 Construction
(a) Clause headings are inserted for convenience of reference only
and shall be ignored in the construction of this Deed:
(b) references to Clauses or Appendices are to be construed as
references to clauses or appendices of this Deed unless
otherwise stated;
(c) references to (or to any specified provision of) this Deed or
any other document shall be construed as references to this
Deed, that provision or that document as from time to time
amended; and
(d) words importing the plural shall include the singular and vice
versa.
2 Assignment of Assigned Property
2.1 Assignment
In order to secure payment and discharge of the Borrower's obligations
under the Agreement and the payment of all sums which from time to time
may become due thereunder and to secure the performance and observance
with all of the covenants, terms and conditions in the Agreement, and by
way of security for payment of the Secured Indebtedness, the Assignor,
with full title guarantee hereby assigns and agrees to assign to the
Agent (on behalf of the Banks) with second priority (subject always to
the rights of the Security Agent under the First Deed of Assignment) all
its rights, title and interest in and to the Assigned Property and all
its benefits and interests present and future therein.
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2.2 Payments and application
2.2.1 Payment
All Assigned Property payable to the Assignor are, subject to the
Security Agent's rights under the First Deed of Assignment, to be paid
to account no. [ ] with [ ] or any replacement thereof, which is pledged
(i) on first priority to the Security Agent as security for the
Borrower's obligations under the USD 325 mill. Facility Agreement and
(ii) on second priority to the Agent (on behalf of the Banks) as
security for the Borrower's obligations under the Agreement.
2.2.2 Application
All moneys received by the Agent in respect of:
(a) recovery under the Vessel's Insurances (other than under any
loss of earnings insurance and any such sum or sums as may have
been received by the Agent in accordance with the relevant loss
payable Clause in respect of a major casualty as therein defined
and paid to the Assignor as provided in Clause 2.2.1);
(b) the Vessel's Requisition Compensation;
(c) the Charter Guarantee(s); and
(d) the Vessel's Earnings (including the Charter Earnings),
shall, subject to the Security Agent's rights under the First Deed of
Assignment, be held by it upon trust in the first place to pay and make
good the expenses and the balance shall:
(i) in the case of moneys received in respect of sale of the Vessel
or recovery under the insurances in relation to a Total Loss of
the Vessel or her Requisition Compensation:
(A) if no Default has occurred and is continuing, be applied
in accordance with Clause 17.15 of the Agreement; or
(B) if a Default has occurred and is continuing but no Event
of Default has occurred be retained by the Agent until
such time as no Default has occurred and is continuing
(whereupon such moneys shall be applied in accordance
with Clause 17.15 of the Agreement or paragraph (ii)
below, moneys so retained shall be applied by the Agent
in or towards satisfaction of any sums from time to time
accruing due and payable by the Assignor under the
Security Documents or any of them by virtue of payment
demanded thereunder; or
(ii) on any other case, if an Event of Default has occurred, be
applied by the Security Agent in the manner specified under (i)
(B) above.
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2.3 Assumption of the Charter
In the event that, in the opinion of the Agent, (i) an Event of Default
has occurred, (ii) the Assignor fails to observe and perform its
obligations under the Charter or this Deed, the Agent may (but shall not
be obliged to), subject to the Co-ordination Agreement, serve upon the
Charterer and the Assignor a notice whereupon the Agent shall exercise
the rights of the Assignor under the Charter and be at liberty (but not
obliged) to performed the Assignor's obligations thereunder.
2.4 Notice and acknowledgement
The Assignor undertakes and covenants with the Agent to give notice of
this Deed to the Charterer, the Charter Guarantor and the insurer or any
other third parties from which any Charter Earnings or other Earnings,
Insurances or other amounts are or may become payable in the form set
out in Appendices 1 to 3 hereto (as the case may be) or such other form
as the Agent may require, and procure that any recipient of such notice
acknowledge receipt of such notices in the forms attached to such
Appendices.
2.5 Release
When all of the obligations under the Agreement have been satisfied and
discharged in full, the Agent will at the request and cost of the
Assignor (and subject to the First Deed of Assignment) reassign to the
Assignor all of the Agent's right, title and interest in the Assigned
Property; provided always that any settlement or discharge under this
Deed between the Assignor and the Agent shall be subject to the
condition that any payment by the Borrower, the Assignor or any other
person will not be avoided or set aside or ordered to be repaid (in full
or in part) under any enactment or provision relating to insolvency,
administration, liquidation or bankruptcy for the time being in force
and in the event that at any time the Agent has to repay (in full or in
part) such amount then the Agent shall have the right (subject to the
rights of the Security Agent under the First Deed of Assignment) to
recover an equivalent amount from the Assignor and to enforce the
security created by this Deed as if such payment had not been made.
3 Perfection
The Assignor agrees that at any time and from time to time upon the
written request of the Agent, it will promptly and duly execute and
deliver to the Agent any and all such further instruments and documents
as the Agent may reasonably deem necessary or desirable to register this
Deed in any applicable registry, and to maintain and/or perfect the
security created by this Deed and the rights and powers herein granted.
4 No variations and the Assignor's obligations under the Charter and the
Charter Guarantee(s)
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The Assignor may not make any variations to the Charter or the Charter
Guarantee(s) or release any party of their obligations thereunder or
waive any breach of the Charterer's obligations thereunder or consent to
any such act of omission of the Charterer as would constitute such
breach or terminate the Charter, without the prior written consent of
the Agent (on behalf of the Banks).
The Assignor shall remain liable to perform all of its obligations under
the Assigned Property and the Agent (on behalf of the Banks) shall be
under no obligation of any kind whatsoever in respect thereof.
5 Assignment
The Agent may assign or transfer its rights hereunder to any person whom
it is entitled to assign its rights to under the Agreement.
6 No further Assignment or Pledge
The Assignor shall not, unless prior written consent has been obtained
from the Agent, be entitled to further assign or pledge any of the
Assigned Property.
7 Additional and continuing security
The security contemplated by this Deed shall be in addition to any other
security granted in accordance with the Agreement, and shall be a
continuing security in full force and effect as long as any obligations
are outstanding thereunder.
8 Notices
Any notice, demand or other communication to be made or delivered by any
party pursuant to this Deed shall (unless the addressee has by fifteen
days' written notice to that party specified another address) be made or
delivered:
(a) if to the Assignor:
[ ]
c/o Golar Management Limited
00 Xxxxx Xxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Telefax no: x00 00 0000 0000
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(b) if to the Agent:
NORDEA BANK NORGE ASA
Middelthunsgt. 17
0368 Oslo
Norway
Telefax no: x00 00 00 00 00
9 Jurisdiction
For the benefit of the Agent and each Bank, the Assignor agrees that
only the courts of England shall have jurisdiction to settle any
disputes in connection with this Deed and accordingly submits to the
non-exclusive jurisdiction of the English courts. Nothing in this Clause
9 shall limit the right of the Agent or any Bank to start proceedings
against the Assignor in any other court of competent jurisdiction.
10 Governing law
This Deed is governed by English law.
11 Service of process
Without prejudice to any other mode of service, the Assignor:
a) irrevocably appoints Golar Management Limited as its agents for
service of process relating to any proceedings before the
English courts in connection with this Deed;
b) agrees that failure by its process agent to notify it of the
process will not invalidate the proceedings concerned; and
c) consents to the service of process to any such proceedings
before the English courts by posting of a copy of the process to
Golar Management Limited, 00 Xxxxx Xxxx, Xxxxxx X00 0XX, Xxxxxx
Xxxxxxx.
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IN WITNESS whereof this Deed has been duly executed as a deed on the day and
year first above written
SIGNED, XXXXXX and DELIVERED )
as a DEED )
by )
it duly authorised Attorney-in-Fact )
for and on behalf of )
[ ] )
in the presence of: )
...................
Witness
Name:
Address:
Occupation:
SIGNED, XXXXXX and DELIVERED )
as a DEED )
by )
it duly authorised Attorney-in-Fact )
for and on behalf of )
NORDEA BANK NORGE ASA )
in the presence of: )
...................
Witness
Name:
Address:
Occupation:
Page 62
Form of
Notice of Assignment
(Charter)
To: [ ]
We refer to the charterparty dated [ ] (the "Charter") made between us and you,
whereby we agreed to let and you agreed to take on [time]charter for the period
and upon terms and conditions therein mentioned the M/V [ ] (the "Vessel"). We
hereby give you notice that:
1. By a Deed of Assignment dated [ ] October 2002 (the "Deed") made between
us and Nordea Bank Norge ASA, as "Agent", acting on behalf of itself and
certain other banks as "Banks", we have with full title guarantee
assigned on second priority (subject to the rights of Den norske Bank
ASA as security agent (the "Security Agent") pursuant to a deed of
assignment dated 31 May 2001 between us and the Security Agent (the
"First Deed of Assignment")) absolutely to and in favour of the Agent
(on behalf of the Banks) all our rights, title and interest, present and
future, to and in all charterhire and other monies payable by you under
the Charter.
2. You are hereby irrevocably authorised and instructed to continue the
performance of your obligations under the Charter towards us and receive
instructions from us, PROVIDED HOWEVER, that all payments are to be made
to our account with the Security Agent, account no. [ ] (free of any
set-off or other deduction) which is pledged on first priority in favour
of the Security Agent, until such time as the Agent shall direct to the
contrary whereupon all instructions or demands for actions shall be made
by the Agent and all amounts payable to us shall be paid to the Agent or
as it may direct.
3. The Deed includes provisions that no variations shall be made to the
Charter (nor shall you be released from your obligations thereunder)
without the previous written consent of the Agent (on behalf of the
Banks) and that we shall remain liable to perform all our obligations
under the Charter and that the Agent (on behalf of the Banks) shall be
under no obligation of any kind whatsoever in respect thereof.
Please acknowledge receipt of this letter and confirm your consent to its terms
by signing the form of acknowledgement enclosed hereto and return the same to
the address as set out therein.
The authority and instructions herein contained cannot be revoked or varied by
us without the consent of the Agent (on behalf of the Banks). The provisions of
this notice and its acknowledgement shall be governed by the laws of England.
Dated [ ] 2002
Signed by
-------------------------------------------
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Appendix 1 B
Form of
Acknowledgement
To:
Nordea Bank Norge ASA
Middelthunsgt. 17
0368 Oslo
Norway
Telefax: x00 00 00 00 00
We acknowledge receipt of the Notice of Assignment dated [ ] 2002. Terms used
herein shall have the same meaning as defined therein. We agree to the
assignment of the earnings under the Charter and agree and undertake to be bound
by the terms of the Notice of Assignment. We confirm that we have received no
notice of any previous assignment or pledge of all or any part of the earnings
under the Charter, save for under the First Deed of Assignment.
We further confirm that all written statements containing instructions or
demanding actions or payments under the Charter may until further notice from
the Agent to the contrary be made by the Assignor and after such notice these
instructions shall be given or demands shall be made by the Agent.
Dated: [ ]
For and on behalf of:
[ ]
By:
Name:
Title:
Page 64
Form of
Notice of Assignment
(Charter Guarantee(s))
To: [ ]
We refer to the charter guarantee dated [__________] (the "Charter Guarantee")
issued by yourselves as guarantor as security for the obligations of
[__________] (the "Charterer") under the charterparty dated [__________] entered
into between the Charterer and ourselves as owner. We hereby give notice that by
a Deed of Assignment dated [__________] October 2002 (the "Deed") made between
us and Nordea Bank Norge ASA as "Agent", acting on behalf of itself and certain
other banks as "Banks", we have with full title guarantee, assigned on second
priority (subject to the rights of Den norske bank ASA as security agent (the
"Security Agent") pursuant to a deed of assignment dated 31 May 2001 between us
and the Security Agent (the "First Deed of Assignment")) absolutely to and in
favour of the Agent (on behalf of the Banks) all our rights, title and interest,
present and future, to and in the Charter Guarantee.
Please acknowledge receipt of this letter and confirm your consent to its terms
by signing the form of acknowledgement enclosed hereto and return the same to
the Agent at the address set out above.
The authority and instructions contained herein cannot be revoked or varied by
us without the prior written consent of the Agent (on behalf of the Banks). The
provisions of this notice and its acknowledgement shall be governed by the laws
of England.
Dated [ ] 2002
Signed by
-------------------------
[ ]
Page 65
Appendix 2B
Form of
Acknowledgement
To:
Nordea Bank Norge ASA
Middelthunsgt. 17
0368 Oslo
Norway
Telefax: x00 00 00 00 00
We acknowledge receipt of the Notice of Assignment dated [ ] October 2002. Terms
used herein shall have the same meaning as defined therein. We agree to the
assignment of the Charter Guarantee(s) as set out therein and agree and
undertake to be bound by the terms of the Notice of Assignment. We confirm that
we have received no notice of any assignment of any part of the Charter
Guarantee, save for under the First Deed of Assignment.
Dated: ..................
For and on behalf of:
[ ]
By:
Name:
Title:
Page 66
Appendix 3A
Form of
Notice of Assignment
(Insurances)
To: The Insurers
[ ] as owner (the "Shipowner") of [" "], (the "Vessel") hereby gives notice that
all payments due to us from you in respect of the Vessel have been (by way of
security) assigned, with second priority (subject to the rights of Den norske
Bank ASA as security agent (the "Security Agent") under a deed of assignment
dated 31 May 2001 entered into between us and the Security Agent (the "First
Deed of Assignment")) to Nordea Bank Norge ASA, Norway, as agent for certain
other banks (the "Mortgagee") according to a Deed of Assignment dated [ ]
October 2002 and that all payments due to us under our policy(-ies) with
yourselves must be made in accordance with the instruction, from time to time,
of the Mortgagee.
Please note that all claims relating to the insurances in respect of an actual
or constructive or agreed or arranged or compromised total loss or requisition
for title or other compulsory acquisition of the Vessel and claims payable in
respect of a major casualty, that is to say any claims or the aggregate of the
claims exceeds USD 5,000,000 (United States Dollars five million) shall (subject
to the rights of the Security Agent under the First Deed of Assignment) be
payable to the Mortgagee. Subject thereto all other claims, unless and until the
insurers have received notice from the Mortgagee of a default under the Mortgage
in which event all claims shall (subject to the rights of the Security Agent
under the First Deed of Assignment) be payable directly to the Mortgagee up to
its mortgage interest, shall be released directly for the repair, salvage or
other charges involved or to the Shipowner as reimbursement if it has fully
repaired the damage and paid all of the salvage or other charges or otherwise in
respect of the Shipowner's actual costs in connection therewith. Any payments
directly to the Shipowner shall be paid to account no. [ ] with the Security
Agent.
Please note that this instruction may not be varied except with the prior
written consent of the Mortgagee.
Please confirm your acknowledgement of the terms of this notice by completing
the Acknowledgement attached hereto. Please return the signed and dated
Acknowledgement to the Mortgagee at the address set out therein
[ ] 2002
--------------------------
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Appendix 3B
To:
Nordea Bank Norge ASA
Middelthunsgt. 17
0368 Oslo
Norway
Telefax: x00 00 00 00 00
Form of
Acknowledgement
We acknowledge receipt of the Notice of Assignment dated [ ] from [ ] (the
"Shipowner") relating to the insurances for the vessel [""] (the "Vessel").
We have duly noted and do accept that our payments due to the Shipowner, under
the insurance policies taken out for the Vessel as an Owners' Entry pursuant to
our rules, shall be made in accordance with the instructions set out in the
Notice of Assignment, including the Loss Payable Clause therein, and payment due
to the Agent will be made to such account as from time to time instructed by
Nordea Bank Norge ASA, Middelthunsgt. 17, 0368 Oslo, Norway, which bank has been
duly noted by ourselves as the Second Priority Mortgagee of the Vessel.
Dated:
For and on behalf of:
[ ]
By:
Name:
Title:
Page 68
Schedule 6
Form of
Pledge of Accounts
between
Golar Gas Holding Company, Inc.
as Borrower
and
Nordea Bank Norge ASA
as Agent
and
Nordea Bank Norge ASA
as Account Bank
------------------------------
Second Priority
Credit Facility
for an amount not
exceeding USD
60,000,000 dated
11 October 2002
------------------------------
XXXX & WIIG AS
Page 69
THIS PLEDGE OF ACCOUNTS (the "Pledge") is made on [ ] October 2002 between:
1. GOLAR GAS HOLDING COMPANY, INC., a company incorporated in the Republic
of Liberia, having its registered office at 00 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx, as borrower (the "Borrower");
2. NORDEA BANK NORGE ASA, Middelthunsgt. 17, 0368 Oslo, Norway as account
bank (the "Account Bank"); and
3. NORDEA BANK NORGE ASA, Middelthunsgt. 17, 0368 Oslo, Norway as agent
(the "Agent").
WHEREAS:
(A) The Borrower has been granted a credit facility for an amount not
exceeding USD 60,000,000 (the "Facility") in accordance with an
agreement dated 11 October 2002 (as the same hereafter from time to time
may be amended referred to as the "Agreement") entered into among the
Borrower, the Financial Institutions listed in Schedule 1 of the
Agreement, the Agent (in its capacity as agent for the Banks, arranger
and bank), Den norske Bank ASA as arranger and bank and Fortis Bank
(Nederland) N.V. as arranger and bank;
(B) The Borrower has agreed to enter into this Pledge in favour of the Agent
(on behalf of the Banks) in respect its bank accounts as security for
its obligations towards the Banks under the Agreement;
(C) The execution by the Borrower of this Pledge is a condition precedent to
the Banks to make the Facility available to the Borrower;
(D) The Borrower has entered into the USD 325 mill. Facility Agreement (as
defined in the Agreement) pursuant to which the Assignor has entered
into the First Pledge of Accounts (as defined in the Agreement) and the
securities constituted herein are subject to and subordinate to the
rights of the Security Agent (as defined in the Agreement) under the
First Pledge of Accounts.
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IT IS AGREED AS FOLLOWS:
1 Definitions
In this Pledge (unless the context otherwise requires) any term or
expression defined herein or in the preamble shall have the meaning
ascribed to it therein. In addition, terms and expressions not defined
herein but whose meanings are defined in the Agreement shall have the
meaning set out therein.
2 Representations and warranties
The Borrower hereby represents and warrants to the Agent (on behalf of
the Banks) that:
(a) it is entitled to pledge the Pledged Accounts (as defined below)
to the Agent (on behalf of the Banks);
(b) save for the First Pledge of Accounts, it has not assigned,
charged, pledged or otherwise encumbered the Pledged Account (as
defined below).
3. Pledge
3.1 Pledge
By way of security for the payment of its obligations under the
Agreement, the Borrower hereby pledges in favour of the Agent (on behalf
of the Banks) on second priority (subject always to the First Pledge of
Accounts) any and all claims it may at any time and from time to time
have against the Account Bank resulting from or in respect of any
balance at any time standing to its credit on its bank account no.
6018.04.41444 or any replacement thereof (the "Pledged Accounts").
3.2 Withdrawals
The Borrower may withdraw funds from the Pledged Accounts (always
subject to the First Pledge of Accounts) for the purposes as set out in
clause 14.1 (b) of the USD 325 mill. Facility Agreement and matters
related thereto as long as no Event of Default has been declared by the
Agent or the Banks under the Agreement. Withdrawals from the Pledged
Accounts for any other purpose, or other payments permitted under the
Agreement, shall require the prior written consent of the Agent (on
behalf of the Banks).
3.3 Blocking
The Pledged Accounts shall following an Event of Default which is
unremedied be blocked in favour of the Agent (on behalf of the Banks),
and any subsequent payments made to the Pledged Accounts or paid
directly to the Agent or any of the Banks shall, subject to the rights
of the Security Agent under the First Pledge of Accounts, be applied
towards the Borrower's obligations to the Agent and the Banks under the
Agreement.
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3.4 Acknowledgement
The Account Bank hereby acknowledges this Pledge by the Borrower to the
Agent (on behalf of the Banks), and waives any right to set-off or other
rights it may have to the credit of the Pledged Accounts, and confirms
to the Agent (on behalf of the Banks) that the Pledged Accounts will,
subject to the rights of the Security Agent under the First Pledge of
Accounts, be blocked in favour of the Agent (on behalf of the Banks)
following the Account Bank's receipt of a notice from the Agent that a
Default has occurred under the Agreement and/or the Security Documents.
3.5 Set-Off
In the event of non-payment of any amount hereunder when due, the Agent
(acting on behalf of the Banks) shall, subject to the rights of the
Security Agent under the First Pledge of Accounts and to the extent
permitted by applicable law, have a separate right of set-off in respect
of any credit balance, in any currency, on any account the Borrower
might have with either the Agent or any of the Banks (branches included)
from time to time, including the Pledged Accounts, toward satisfaction
of any sum due to the Agent or any of the Banks hereunder.
4 Perfection
The Borrower agrees that it at any time and from time to time upon the
written request of the Agent, will promptly and duly execute and deliver
to the Agent any and all such further instruments and documents as the
Agent may reasonably deem necessary or desirable, and to maintain and/or
perfect the security created by this Pledge and the rights and powers
herein granted.
5 Continuing security
The Borrower hereby agrees and undertakes that:
(a) the security created by this Pledge shall be held by the Agent
(on behalf of the banks) as a continuing security for the
obligations under the Agreement and the security so created
shall not be satisfied by any intermediate payment or
satisfaction of any part of the obligations under the Agreement;
(b) the security so created shall be in addition to and shall not in
any way be prejudiced or affected by any of the other Security
Documents;
(c) subject to the Co-ordination Agreement, the Agent shall not be
bound to enforce any of the other Security Documents before
enforcing the security created by this Pledge;
(d) no delay or omission on the part of the Agent in exercising any
right, power or remedy under this Pledge shall impair such
right, power or remedy or be construed as a waiver thereof nor
shall any single or partial exercise of any such right, power or
remedy preclude any further exercise thereof or the exercise of
any other right, power or remedy;
Page 72
(e) the rights, powers and remedies provided in this Pledge are
cumulative and not exclusive of any rights, powers and remedies
provided by law and may be exercised from time to time and as
often as the Agent may deem expedient; and
(f) any waiver by the Agent of any terms of this Pledge or any
consent given by the Agent under this Pledge shall only be
effective if given in writing and then only for the purpose and
upon the terms which it is given.
6 Agent's powers
6.1 Protecting and maintaining of security
The Agent shall, subject to the rights of the Security Agent under the
First Pledge of Accounts, without prejudice to its other rights and
powers under this Pledge and the other Security Documents, be entitled
(but not bound) at any time and as often as may be necessary to take any
such action as it may in its reasonable opinion think fit for the
purpose of protecting or maintaining the security created by this
Pledge.
6.2 Powers
After the occurrence of an Event of Default (irrespective of whether or
not the Agent shall have taken steps to enforce any of the powers
specified or referred to in the Agreement), and as long as such Event of
Default is in existence, the Agent shall, subject to the Co-ordination
Agreement and applicable mandatory laws, become forthwith entitled, as
and when it may see fit, to put into force and exercise all or any of
the powers possessed by its as pledgee of the Pledged Accounts and in
particular the Agent shall be entitled then or at any later time or
times:
(a) to enforce its right as a pledgee of the Pledged Accounts in
accordance with the statutory procedure of enforcement laid down
in the Norwegian enforcement Act of 26 June 1992;
(b) to take over, institute, defend, settle or abandon (if necessary
using the name of the Borrower) all such legal or arbitration
proceedings in connection with the Pledged Accounts as the Agent
in its sole and absolute discretion thinks fit;
(c) generally, to recover from the Borrower on demand all expenses
incurred by the Agent in or about or incidental to the exercise
by it of any of the powers aforesaid; and
(d) generally, to enter into any transaction or arrangement of any
kind and to do anything in relation to the Pledged Accounts
which the Agent may think fit.
7 Assignment
The Agent may assign or transfer its rights hereunder to any person to
whom the rights and obligations as Agent and Bank may be assigned to
under the Agreement in accordance with the terms set out therein.
Page 73
The Borrower shall not be entitled to further assign or pledge the
Pledged Accounts.
8 Notices
Any notice, demand or other communication to be made or delivered by any
party pursuant to this Pledge shall (unless the addressee has by fifteen
days' written notice to that party specified another address) be made or
delivered as set out in Clause 28 of the Agreement.
9 Jurisdiction
For the benefit of the Agent and each Bank, the Borrower agrees that
only the courts of Norway shall have jurisdiction to settle any disputes
in connection with this Pledge and accordingly submits to the
non-exclusive jurisdiction of Oslo tingrett. Nothing in this Clause 9
shall limit the right of the Agent or any Bank to start proceedings
against the Borrower in any other court of competent jurisdiction.
10 Governing law
This Pledge is governed by Norwegian law.
11 Service of process
Without prejudice to any other mode of service, the Borrower:
a) irrevocably appoints Frontline Management AS as its agents for
service of process relating to any proceedings before the
Norwegian courts in connection with this Pledge;
b) agrees that failure by its process agent to notify it of the
process will not invalidate the proceedings concerned; and
c) consents to the service of process to any such proceedings
before the Norwegian courts by posting of a copy of the process
to Frontline Management AS, Bryggegt. 3, P.O. Box 1327 Vika,
0112 Oslo, Norway.
Page 74
Signed by:
---------
The Borrower:
-------------
GOLAR GAS HOLDING COMPANY, INC.
By:
Name:
Title:
The Agent:
----------
NORDEA BANK NORGE ASA
By:
Name:
Title:
The Account Bank:
-----------------
NORDEA BANK NORGE ASA
By:
Name:
Title:
Page 75
Schedule 7
Form of
Pledge of Borrower Shares
between
Xxxxxx-Xxxxxx Shipping Corporation
as Pledgor
and
Nordea Bank Norge ASA
as Agent
-------------------------------
Second Priority
Credit Facility
Agreement for an
amount not
exceeding USD
60,000,000 dated
11 October 2002
-------------------------------
XXXX & WIIG AS
Page 76
THIS PLEDGE OF SHARES (the "Pledge of Shares") dated this [ ] October 2002 is
made between:
(1) XXXXXX-XXXXXX SHIPPING CORPORATION, 00 xxxxx Xxxxxx, Xxxxxxxx,
Liberia(the "Pledgor"); and
(2) NORDEA BANK NORGE ASA, Middelthunsgt. 17, 0368 Oslo, Norway, as agent
under the Agreement (as defined below) (the "Agent").
WHEREAS
(A) Golar Gas Holding Company, Inc. as borrower (the "Borrower") has been
granted a credit facility for an amount not exceeding USD 60,000,000
(the "Facility") in accordance with an agreement dated 11 October 2002
(as the same hereafter from time to time may be amended referred to as
the "Agreement") entered into among the Borrower, the Financial
Institutions listed in Schedule 1 of the Agreement, the Agent (in its
capacity as agent for the Banks, arranger and bank), Den norske Bank ASA
as arranger and bank and Fortis Bank (Nederland) N.V. as arranger and
Bank;
(B) The Pledgor has agreed to enter into this Pledge of Shares in favour of
the Agent (on behalf of the Banks) in respect of its [number of shares]
shares of the capital stock of the Borrower represented by share
certificate no. [ ] (the "Shares"), being all of the issued and
outstanding shares of the Borrower, as security for the Borrower's
obligations towards the Banks under the Agreement; and
(C) The execution by the Pledgor of this Pledge of Shares is a condition
precedent to the Banks to make the Facility available to the Borrower.
IT IS AGREED AS FOLLOWS:
1 Definitions
In this Pledge of Shares including the preamble hereto (unless the
context otherwise requires), terms and expressions not defined herein
but whose meanings are defined in the Agreement, shall have the meanings
set out therein.
2 Representations and warranties
The Pledgor hereby represents and warrants to the Agent (on behalf of
the Banks) that:
(a) it is entitled to pledge its right, title and interest in the
Shares to the Agent (on behalf of the Banks); and
(b) it has not assigned, charged, pledged, sold or otherwise
encumbered the Shares (other than by this Pledge of Shares); and
(c) it is the sole, legal and beneficial owner of the Shared, which
are fully paid up and non-assessable.
Page 77
3 Pledge
3.1 Pledge
By way of security for the payment of all amounts that are or may become
due to the Agent and/or the Banks under the Agreement, the Pledgor
hereby pledges assigns, charges, transfers and delivers, on first
priority, all of its right, title and interest in the Shares to and in
favour of the Agent (on behalf of the Banks), including dividends,
interest and other moneys paid or payable on the Shares.
3.2 Share certificates, etc.
Upon execution of this Pledge of Shares, the Pledgor shall deposit in
escrow with the Agent the following documents:
(a) the share certificates for the Shares; (b) signed but undated
instruments of transfer in blank; (c) a signed by undated letter
of resignation of each of the directors and officers of the
Borrower; (d) a letter of authority signed by each of the
directors and officers of the Borrower in favour of the Agent to
complete and date the letters of resignation; (e) a letter of
undertaking from each of the directors not to appoint any
further directors or officers; (f) an irrevocable proxy from the
Pledgor empowering the Agent to cast votes attributable to the
Shares; (g) a draft undated set of board resolutions approving
the resignations; and (h) the stock register, all unissued stock
certificates and a duplicate corporate seal
3.3 Release
As soon as any and all of the obligations under the Agreement have been
unconditionally and irrevocably paid and discharged in full, the Agent
will release the security created by this Pledge of Shares and return
the share certificates for the Shares to the Pledgor.
4 Covenants
The Pledgor hereby undertakes with the Agent that:
(a) if any further shares are issued to the Pledgor, the Pledgor
shall pledge its respective right, title and interest in all
such additional shares to the Agent, and deliver the share
certificate(s) to the Agent; and
(b) it will not assign, charge, pledge or otherwise encumber the
Shares except as contemplated in the Agreement and/or this
Pledge of Shares or otherwise permitted in writing by the Agent
on behalf of the Banks.
5 Continuing security
The Pledgor hereby agrees and undertakes that:
(a) the security created by this Pledge of Shares shall be held by
the Agent on behalf of the Banks as a continuing security for
the payment of all amounts that are or may become due to the
Agent and/or the Banks under the Agreement and the security so
created shall not be satisfied by any intermediate payment or
satisfaction of any part of such obligations under the
Agreement;
Page 78
(b) the security so created shall be in addition to and shall not in
any way be prejudiced or affected by any of the other Security
Documents;
(c) the Agent shall not be bound to enforce any of the other
Security Documents before enforcing the security created by this
Pledge of Shares;
(d) no delay or omission on the part of the Agent in exercising any
right, power or remedy under this Pledge of Shares shall impair
such right, power or remedy or be construed as a waiver thereof
nor shall any single or partial exercise of any such right,
power or remedy preclude any further exercise thereof or the
exercise of any other right, power or remedy;
(e) the rights, powers and remedies provided in this Pledge of
Shares are cumulative and not exclusive of any rights, powers
and remedies provided by law and may be exercised from time to
time and as often as the Agent may deem expedient; and
(f) any waiver by the Agent of any terms of this Pledge of Shares or
any consent given by the Agent under this Pledge of Shares shall
only be effective if given in writing and then only for the
purpose and upon the terms for which it is given.
6 Agent's powers
6.1 Protecting and maintaining of security
The Agent shall, without prejudice to its other rights and powers under
this Pledge of Shares and the other Security Documents, and subject to
the Co-ordination Agreement, be entitled (but not bound) at any time and
as often as may be necessary to take any such action as it may in its
reasonable opinion think fit for the purpose of protecting or
maintaining the security created by this Pledge of Shares.
6.2 Powers
After the occurrence of an Event of Default (irrespective of whether or
not the Agent shall have taken steps to enforce any of the powers
specified or referred to in the Agreement) and as long as such Event of
Default is in existence, the Agent shall, subject to the Co-ordination
Agreement and applicable mandatory law, become forthwith entitled, as
and when it may see fit, to put into force and exercise all or any of
the powers possessed by it as pledgee of the Shares and in particular
the Agent shall be entitled then or at any later time or times:
Page 79
(a) subject to the Co-ordination Agreement, to enforce its rights as
pledgee of the Shares in accordance with the statutory
procedures of enforcement laid down in the Norwegian Enforcement
Act of 26 June 1992;
(b) to take over, institute, defend, settle or abandon (if necessary
using the name of the Pledgor) all such legal or arbitration
proceedings in connection with the Shares as the Agent in its
sole and absolute discretion thinks fit;
(c) generally, to recover from the Pledgor on demand all expenses
incurred by the Agent in or about or incidental to the exercise
by it of any of the powers aforesaid; and
(d) generally, to enter into any transaction or arrangement of any
kind and to do anything in relation to the Shares which the
Agent may think fit.
6.3 Liability of the Agent
Neither the Agent nor its agents, managers, officers, employees,
delegates and advisers shall be liable for any expense, claim,
liability, loss, cost, damage or expense incurred or arising in
connection with the exercise or purported exercise of any rights, powers
and discretions under this Pledge of Shares in the absence of gross
negligence or wilful misconduct.
7 Indemnity
The Pledgor will indemnify and hold harmless the Agent and each agent or
attorney appointed under or pursuant to this Pledge of Shares from and
against any and all expenses, claims, liabilities, losses, tax (other
than tax on the overall net income of the Agent), costs, duties, fees
and charges suffered, incurred or made by the Agent or such agent or
attorney:
(a) in the exercise or purported exercise of any rights, powers or
discretions vested in them pursuant to this Pledge of Shares; or
(b) in the preservation or enforcement of the Agent's rights under
this Pledge of Shares; or
(c) on the release of any part of the Shares from the security
created by this Pledge of Shares,
and the Agent or each such agent or attorney may retain and pay all sums
in respect of the same amount of money received under the powers
conferred by this Pledge of Shares. All such amounts recoverable by the
Agent or each such agent or attorney shall be recoverable on a full
indemnity basis.
Page 80
8 Further assurances
The Pledgor hereby further undertake to execute and do all such
assurances, acts and things as the Agent in its sole and absolute
discretion may require for:
(a) perfecting or protecting the security created (or intended to be
created) by this Pledge of Shares; or
(b) preserving or protecting any of the rights of the Agent under
this Pledge of Shares; or
(c) ensuring that the security constituted by this Pledge of Shares
and the covenants and obligations of the Borrower under this
Pledge of Shares shall enure to the benefit of any such assignee
of the Agent as is referred to in Clause 10; or
(d) facilitating the appropriation or realisation of the Shares or
any part thereof in the manner contemplated by this Pledge of
Shares; or
(e) the exercise of any power, authority or discretion vested in the
Agent under this Pledge of Shares,
in any such case, forthwith upon demand by the Agent and at the expense
of the Pledgor.
9 Notices
Any notice, demand or other communication to be made or delivered by any
party pursuant to this Pledge of Shares shall (unless the addressee has
by fifteen days' written notice to that party specified another address)
be made or delivered: -
(a) if to the Pledgor:
Xxxxxx-Xxxxxx Shipping Corporation
c/o Golar Management Limited
00 Xxxxx Xxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Telefax no: x00 00 0000 0000
Page 81
(b) if to the Agent:
Nordea Bank Norge ASA
P.O. Box 1166 Sentrum
Middelthunsg. 17
0368 Oslo
Norway
Telefax: x00 00 00 00 00
10 Successors and assigns
10.1 Successors and assigns
This Pledge of Shares shall be binding upon and shall enure to the
benefit of the Agent on behalf of the Banks and their respective
successors and permitted assigns and references in this Pledge of Shares
to any of them shall be construed accordingly.
10.2 Prior consent
The Pledgor shall not assign or transfer any of its rights and/or
obligations under this Pledge of Shares without the prior written
consent of the Agent. The Agent may assign and/or transfer part or all
of its rights and/or obligations hereunder to any financial institution
in accordance with the terms of the Agreement. In such case, the Pledgor
will execute such documentation as considered necessary by the Agent to
effectuate such assignment and/or transfer at the Agent's cost.
10.3 Disclosure of information
The Agent may disclose to a potential assignee, transferee or
sub-participant, such information about the Pledgor as the Agent
considers appropriate.
11 Jurisdiction
For the benefit of the Agent and each Bank, the Pledgor agrees that only
the courts of Norway shall have jurisdiction to settle any disputes in
connection with this Pledge of Shares and accordingly submits to the
non-exclusive jurisdiction of Oslo tingrett. Nothing in this Clause 11
shall limit the right of the Agent or any Bank to start proceedings
against the Borrower in any other court of competent jurisdiction.
12 Governing law
This Pledge of Shares is governed by Norwegian law.
13 Service of process
Without prejudice to any other mode of service, the Pledgor:
a) irrevocably appoints Frontline Management AS as its agents for
service of process relating to any proceedings before the
Norwegian courts in connection with this Pledge of Shares;
Page 82
b) agrees that failure by its process agent to notify it of the
process will not invalidate the proceedings concerned; and
c) consents to the service of process to any such proceedings
before the Norwegian courts by posting of a copy of the process
to Frontline Management AS, Bryggegt. 3, P.O. Box 1327 Vika,
0112 Oslo, Norway.
Signed by:
The Pledgor:
------------
XXXXXX-XXXXXX SHIPPING CORPORATION
By:
Name:
Title:
The Agent:
----------
NORDEA BANK NORGE ASA
By:
Name:
Title:
Page 83
Schedule 8
Form of
Subsidiary Pledge
between
Golar Gas Holding Company, Inc.
as Pledgor
and
Nordea Bank Norge ASA
as Agent
in respect of [ ]
-------------------------------
Second Priority
Credit Facility
Agreement for an
amount not
exceeding USD
60,000,000 dated
11 October 2002
-------------------------------
XXXX & WIIG AS
Page 84
THIS PLEDGE OF SHARES (the "Pledge of Shares") dated this [ ] October 2002 is
made between:
(1) Golar GAS HOLDING COMPANY, INC., 00 Xxxxx Xxxxxx, Xxxxxxxx, Liberia (the
"Pledgor"); and
(2) NORDEA BANK NORGE ASA, Middelthunsgt. 17, 0368 Oslo, Norway, as agent
under the Agreement (as defined below) (the "Agent").
WHEREAS
(A) The Pledgor as borrower has been granted a credit facility for an amount
not exceeding USD 60,000,000 (the "Facility") in accordance with an
agreement dated 11 October 2002 (as the same hereafter from time to time
may be amended referred to as the "Agreement") entered into among the
Pledgor, the Financial Institutions listed in Schedule 1 of the
Agreement, the Agent (in its capacity as agent for the Banks, arranger
and bank), Den norske Bank ASA as arranger and bank and Fortis Bank
(Nederland) N.V. as arranger and Bank;
(B) The Pledgor has agreed to enter into this Pledge of Shares in favour of
the Agent (on behalf of the Banks) in respect of its [number of shares]
shares of the capital stock of [ ] represented by share certificate no.
[ ] (the "Shares"), being all of the issued and outstanding shares of [
] as security for its obligations towards the Banks under the Agreement;
(C) The execution by the Pledgor of this Pledge of Shares is a condition
precedent to the Banks to make the Facility available to the Pledgor;
and
(D) The Borrower has entered into the USD 325 mill. Facility Agreement (as
defined in the Agreement) pursuant to which the Pledgor has entered into
the First Subsidiary Pledge (as defined in the Agreement) and the
securities constituted herein are subject to and subordinate to the
rights of the Security Agent (as defined in the Agreement) under the
First Subsidiary Pledge.
IT IS AGREED AS FOLLOWS:
1 Definitions
In this Pledge of Shares including the preamble hereto (unless the
context otherwise requires), terms and expressions not defined herein
but whose meanings are defined in the Agreement, shall have the meanings
set out therein.
Page 85
2 Representations and warranties
The Pledgor hereby represents and warrants to the Agent (on behalf of
the Banks) that:
(a) it is entitled to pledge its right, title and interest in the
Shares to the Agent (on behalf of the Banks); and
(b) save for the First Subsidiary Pledge it has not assigned,
charged, pledged, sold or otherwise encumbered the Shares (other
than by this Pledge of Shares); and
(c) it is the sole, legal and beneficial owner of the Shares, which
are fully paid up and non-assessable.
3 Pledge
3.1 Pledge
By way of security for the payment of all amounts that are or may become
due to the Agent and/or the Banks under the Agreement, the Pledgor
hereby pledges, assigns charges, transfers and delivers on second
priority (subject always to the rights under the First Subsidiary
Pledge), all of its right, title and interest in the Shares to and in
favour of the Agent (on behalf of the Banks), including dividends,
interest and other moneys paid or payable on the Shares.
3.2 Documents
Upon execution of this Pledge of Shares, the Pledgor shall deposit in
escrow with the Agent the following documents:
(a) share certificates for the Shares (and the Pledgor shall procure
that the Security Agent shall agree that, so long as the Shares
are subject to the First Subsidiary Pledge, the Security Agent
shall hold the Shares for the Agent and shall, upon release from
the First Subsidiary Pledge, deliver the Share to the Agent; (b)
signed but undated instruments of transfer in blank; (c) a
signed by undated letter of resignation of each of the directors
and officers of [ ]; (d) a letter of authority signed by each of
the directors and officers of [ ] in favour of the Agent to
complete and date the letters of resignation; (e) a letter of
undertaking from each of the directors not to appoint any
further directors or officers; (f) an irrevocable proxy from the
Pledgor empowering the Agent to cast votes attributable to the
Shares; (g) a draft undated set of board resolutions approving
the resignations; and (h) all unissued share certificates, the
stock register and a duplicate corporate seal.
Page 86
3.3 Release
As soon as any and all of the obligations under the Agreement have been
unconditionally and irrevocably paid and discharged in full, the Agent
will release the security created by this Pledge of Shares.
4 Covenants
The Pledgor hereby undertakes with the Agent that:
(a) if any further shares are issued to the Pledgor, the Pledgor
shall pledge its respective right, title and interest in all
such additional shares to the Agent, and (subject to the First
Subsidiary Pledge) deliver the share certificate(s) to the
Agent; and
(b) it will not assign, charge, pledge or otherwise encumber the
Shares except as contemplated in the Agreement and/or this
Pledge of Shares and/or the First Subsidiary Pledge or otherwise
permitted in writing by the Agent on behalf of the Banks.
5 Continuing security
The Pledgor hereby agrees and undertakes that:
(a) the security created by this Pledge of Shares shall be held by
the Agent on behalf of the Banks as a continuing security for
the payment of all amounts that are or may become due to the
Agent and/or the Banks under the Agreement and the security so
created shall not be satisfied by any intermediate payment or
satisfaction of any part of such obligations under the
Agreement;
(b) the security so created shall be in addition to and shall not in
any way be prejudiced or affected by any of the other Security
Documents;
(c) subject to the Co-ordination Agreement, the Agent shall not be
bound to enforce any of the other Security Documents before
enforcing the security created by this Pledge of Shares;
Page 87
(d) no delay or omission on the part of the Agent in exercising any
right, power or remedy under this Pledge of Shares shall impair
such right, power or remedy or be construed as a waiver thereof
nor shall any single or partial exercise of any such right,
power or remedy preclude any further exercise thereof or the
exercise of any other right, power or remedy;
(e) the rights, powers and remedies provided in this Pledge of
Shares are cumulative and not exclusive of any rights, powers
and remedies provided by law and may be exercised from time to
time and as often as the Agent may deem expedient; and
(f) any waiver by the Agent of any terms of this Pledge of Shares or
any consent given by the Agent under this Pledge of Shares shall
only be effective if given in writing and then only for the
purpose and upon the terms for which it is given.
6 Agent's powers
6.1 Protecting and maintaining of security
The Agent shall, without prejudice to its other rights and powers under
this Pledge of Shares and the other Security Documents, and subject to
the rights of the Security Agent under the First Subsidiary Pledge, be
entitled (but not bound) at any time and as often as may be necessary to
take any such action as it may in its reasonable opinion think fit for
the purpose of protecting or maintaining the security created by this
Pledge of Shares.
6.2 Powers
After the occurrence of an Event of Default (irrespective of whether or
not the Agent shall have taken steps to enforce any of the powers
specified or referred to in the Agreement) and as long as such Event of
Default is in existence, the Agent shall, subject to the Co-ordination
Agreement and applicable mandatory law, become forthwith entitled, as
and when it may see fit, to put into force and exercise all or any of
the powers possessed by it as pledgee of the Shares and in particular
the Agent shall be entitled then or at any later time or times:
(a) subject to the Co-ordination Agreement, to enforce its rights as
pledgee of the Shares in accordance with the statutory
procedures of enforcement laid down in the Norwegian Enforcement
Act of 26 June 1992;
Page 88
(b) to take over, institute, defend, settle or abandon (if necessary
using the name of the Pledgor) all such legal or arbitration
proceedings in connection with the Shares as the Agent in its
sole and absolute discretion thinks fit;
(c) generally, to recover from the Pledgor on demand all expenses
incurred by the Agent in or about or incidental to the exercise
by it of any of the powers aforesaid; and
(d) generally, to enter into any transaction or arrangement of any
kind and to do anything in relation to the Shares which the
Agent may think fit.
6.3 Liability of the Agent
Neither the Agent nor its agents, managers, officers, employees,
delegates and advisers shall be liable for any expense, claim,
liability, loss, cost, damage or expense incurred or arising in
connection with the exercise or purported exercise of any rights, powers
and discretions under this Pledge of Shares in the absence of gross
negligence or wilful misconduct.
7 Indemnity
The Pledgor will indemnify and hold harmless the Agent and each agent or
attorney appointed under or pursuant to this Pledge of Shares from and
against any and all expenses, claims, liabilities, losses, tax (other
than tax on the overall net income of the Agent), costs, duties, fees
and charges suffered, incurred or made by the Agent or such agent or
attorney:
(a) in the exercise or purported exercise of any rights, powers or
discretions vested in them pursuant to this Pledge of Shares; or
(b) in the preservation or enforcement of the Agent's rights under
this Pledge of Shares; or
(c) on the release of any part of the Shares from the security
created by this Pledge of Shares,
and the Agent or each such agent or attorney may retain and pay all sums
in respect of the same amount of money received under the powers
conferred by this Pledge of Shares. All such amounts recoverable by the
Agent or each such agent or attorney shall be recoverable on a full
indemnity basis.
8 Further assurances
The Pledgor hereby further undertake to execute and do all such
assurances, acts and things as the Agent in its sole and absolute
discretion may require for:
(a) perfecting or protecting the security created (or intended to be
created) by this Pledge of Shares; or
Page 89
(b) preserving or protecting any of the rights of the Agent under
this Pledge of Shares; or
(c) ensuring that the security constituted by this Pledge of Shares
and the covenants and obligations of the Borrower under this
Pledge of Shares shall enure to the benefit of any such assignee
of the Agent as is referred to in Clause 10; or
(d) facilitating the appropriation or realisation of the Shares or
any part thereof in the manner contemplated by this Pledge of
Shares; or
(e) the exercise of any power, authority or discretion vested in the
Agent under this Pledge of Shares,
in any such case, forthwith upon demand by the Agent and at the expense
of the Pledgor.
9 Notices
Any notice, demand or other communication to be made or delivered by any
party pursuant to this Pledge of Shares shall (unless the addressee has
by fifteen days' written notice to that party specified another address)
be made or delivered: -
(a) if to the Pledgor:
Golar Gas Holding Company, Inc.
c/o Golar Management Limited
00 Xxxxx Xxxx
Xxxxxx X00 xXX
Xxxxxx Xxxxxxx
Telefax no: x00 00 0000 0000
(b) if to the Agent:
Nordea Bank Norge ASA
P.O. Box 1166 Sentrum
Middelthunsg. 17
0368 Oslo
Norway
Telefax: x00 00 00 00 00
10 Successors and assigns
10.1 Successors and assigns
This Pledge of Shares shall be binding upon and shall enure to the
benefit of the Agent on behalf of the Banks and their respective
successors and permitted assigns and references in this Pledge of Shares
to any of them shall be construed accordingly.
10.2 Prior consent
The Pledgor shall not assign or transfer any of its rights and/or
obligations under this Pledge of Shares without the prior written
consent of the Agent. The Agent may assign and/or transfer part or all
of its rights and/or obligations hereunder to any financial institution
in accordance with the terms of the Agreement. In such case, the Pledgor
will execute such documentation as considered necessary by the Agent to
effectuate such assignment and/or transfer at the Agent's cost.
Page 90
10.3 Disclosure of information
The Agent may disclose to a potential assignee, transferee or
sub-participant, such information about the Pledgor as the Agent
considers appropriate.
11 Jurisdiction
For the benefit of the Agent and each Bank, the Pledgor agrees that only
the courts of Norway shall have jurisdiction to settle any disputes in
connection with this Pledge of Shares and accordingly submits to the
non-exclusive jurisdiction of Oslo tingrett. Nothing in this Clause 11
shall limit the right of the Agent or any Bank to start proceedings
against the Borrower in any other court of competent jurisdiction.
12 Governing law
This Pledge of Shares is governed by Norwegian law.
13 Service of process
Without prejudice to any other mode of service, the Pledgor:
a) irrevocably appoints Frontline Management AS as its agents for
service of process relating to any proceedings before the
Norwegian courts in connection with this Pledge of Shares;
b) agrees that failure by its process agent to notify it of the
process will not invalidate the proceedings concerned; and
c) consents to the service of process to any such proceedings
before the Norwegian courts by posting of a copy of the process
to Frontline Management AS, Bryggegt. 3, P.O. Box 1327 Vika,
0112 Oslo, Norway.
Page 91
Signed by:
The Pledgor:
------------
GOLAR GAS HOLDING COMPANY, INC.
By:
Name:
Title:
The Agent:
----------
NORDEA BANK NORGE ASA
By:
Name:
Title:
Page 92
Schedule 9
Form of Compliance Certificate
To: NORDEA BANK NORGE ASA as Agent under the Agreement as defined below
We refer to the Agreement dated 11 October 2002. We give this Compliance
Certificate as required under Clause 17.5 of the Agreement. Terms used in this
Compliance Certificate have the meanings given to them in the Agreement [and are
on a consolidated basis].
The covenant calculations below are made as of, and in respect of three month
period ending on [ ] 20[ ].
Agreement Clause Covenant determination/Calculation compliance Compliance
+ Cash and bank deposits according to the accounts
- restricted funds/deposits
17.4 (a) Free Available Cash: ___________________________ _______
+ Current Assets according to the accounts
- Current Liabilities according to the accounts
17.4 (b) Working Capital: _______________________________ _______
+ all Borrowed Money according to the accounts
- Borrowed Money in Oxbow, Golar Maritime,
Faraway and Aurora Management Inc.
- Free Available Cash
= Net Debt (1)
EBITDA last quarter
4 x EBITDA last quarter (2)
(1) divided by (2)
17.4 (c) = Leverage: ____________________________________ _______
It is hereby certified, by the undersigned, that there are no known,
pending or threatened Events of Default as of this date. Furthermore, it
is hereby certified that the above representations and undertakings
contained in the Agreement are true and correct and fulfilled at the
time hereof with reference to the facts now subsiding.
Best regards,
-------------------------
Enclosure: Financial Statement as per [ ]
Page 93
Schedule 10A
Form of
Guarantee
issued by
[ ]
and
[ ]
as Guarantors
in favour of
Nordea Bank Norge ASA
as Agent
-------------------------------
Second Priority
Credit Facility
Agreement for an
amount not
exceeding USD
60,000,000 dated
11 October 2002
------------------------------
XXXX & WIIG AS
ADVOKATFIRMA
Page 94
THIS GUARANTEE ("selvskyldnergaranti") is made on the [ ] October 2002
by:
[ ], [ ]; and
[ ], [ ]
(together the "Guarantors")
in favour of:
------------
NORDEA BANK NORGE ASA, Middelthunsgate 17, P.O. Box 1166 Sentrum, 0107 Oslo,
Norway (the "Agent").
WHEREAS
(A) Golar Gas Holding Company, Inc. as borrower (the "Borrower") has been
granted a credit facility for an amount not exceeding USD 60,000,000
(the "Facility") in accordance with an agreement dated 11 October 2002
(as the same hereafter from time to time may be amended referred to as
the "Agreement") entered into among the Borrower, the Financial
Institutions listed in Schedule 1 of the Agreement, the Agent (in its
capacity as agent for the Banks, arranger and bank), Den norske Bank ASA
as arranger and bank and Fortis Bank (Nederland) N.V. as arranger and
Bank;
(B) It is a condition precedent to the drawdown under the Facility that the
Guarantors execute and deliver this Guarantee, and in consideration
thereof the Guarantors have agreed to execute and deliver this Guarantee
to and in favour of the Agent (on behalf of the Banks) as security for
all of the Borrower's obligations and liabilities to the Banks under the
Agreement and all security documents issued or to be issued pursuant
thereto (the "Security Documents") (such obligations hereinafter
referred to as the "Guaranteed Obligations").
NOW, THEREFORE, each of the Guarantors hereby undertakes and agrees as follows:
1 Interpretation
1.1 Definitions
In this Guarantee including the preamble hereto (unless the context
otherwise requires) any term or expression defined in the preamble shall
have the meanings ascribed to it therein. In addition, terms and
expressions not defined herein but whose meanings are defined in the
Agreement shall have the meanings set out therein.
1.2 Construction
(a) Clause headings are inserted for convenience of reference only
and shall be ignored in the construction of this Guarantee;
Page 95
(b) references to Clauses are to be construed as references to
clauses of this Guarantee unless otherwise stated;
(c) references to (or to any specified provision of) this Guarantee
or any other document shall be construed as references to this
Guarantee, that provision or that document as from time to time
amended; and
(d) words importing the plural shall include the singular and vice
versa.
2 Guarantee
The Guarantors hereby unconditionally and irrevocably, jointly and
severally guarantee in favour of the Agent (on behalf of the Banks) as
primary obligor as and for its own debt (som selvskyldner) and not
merely as surety, to pay to the Agent on demand all monies and to
discharge all Guaranteed Obligations or any part thereof of the Borrower
when the same become due for payment or discharge, provided however,
that each of the Guarantors' liability never shall exceed USD
80,000,000.
This Guarantee shall be in addition to and not in substitution of any
other security held by the Agent (on behalf of the Banks) from time to
time in respect of the Guaranteed Obligations.
For the purpose of the Norwegian Financial Contracts Act 1999 No. 46
(the "FA"), we hereby declare and confirm:
(a) that the principal amount secured under hereunder is USD
80,000,000 in accordance with the terms of the Agreement; in
each case plus all unpaid interest, default interest, fees,
costs and expenses;
(b) that we have received a copy of the Agreement, and we have
thereby been informed of the security which is to be granted in
respect of the amounts outstanding under the Agreement;
(c) that we have been informed by the Borrower that no event of
which would be an Event of Default under the Agreement has
occurred as per today; and
(d) that we are aware of the cross default provisions relating to
ourselves contained in the Agreement.
3 Continuing security
This Guarantee is a continuing security for the whole of the Guaranteed
Obligations from time to time and shall remain in full force and effect
until all of the Guaranteed Obligations have been finally settled and
fulfilled, and notwithstanding the liquidation of the Borrower or any
change in the constitution of the Borrower or of the Agent or the
absorption of or amalgamation by the Agent in or with any other entity
or the acquisition of all or any part of the assets or undertaking of
the Agent by any other entity.
4 Payment and performance
The Guarantors expressly undertake to make payment of any amount due to
the Agent and the Banks as a consequence of the Borrower not having
fulfilled its obligations under the Agreement and the Security
Documents, within five Business Days after receipt of notice for payment
from the Agent. Any payments under this Guarantee shall be made in full
without any deductions of counterclaims whatsoever.
Page 96
5 Preservation of Guarantors' liability
The Agent may without the prior written consent of any of the Guarantors
and without notice to any of the Guarantors:
(a) materially amend, novate, supplement or replace the Agreement;
(b) agree with the Borrower to increase or reduce the amount of the
Facility, or vary the terms and conditions for its repayment
(including, without limitation, the rate and/or method of
calculation of interest payable on the Facility);
(c) allow to the Borrower or to any other person any time or other
indulgence;
(d) renew, vary, release or refrain from enforcing the Agreement or
any security, guarantee or indemnity which the Agent may now or
in the future hold from the Borrower or from any other person;
(e) compound with the Borrower or any other person;
(f) enter into, renew, vary or terminate any other agreement or
arrangement with the Borrower or any other person; or
(g) make any concession to the Borrower or do or omit or neglect to
do anything which might, but for this provision, operate to
release or reduce the liability of the Guarantors under this
Guarantee.
The liability of the Guarantors under this Guarantee shall not be
affected by:
(a) the absence of, or any defective, excessive or irregular
exercise of, any of the powers of the Borrower;
(b) any security given or payment made to the Agent or the Banks by
the Borrower or any other person being avoided or reduced under
any law (whether Norwegian or foreign) relating to bankruptcy or
insolvency or analogous circumstance in force from time to time;
Page 97
(c) the liquidation, administration, receivership or insolvency of
any of the Guarantors;
(d) the Agreement and/or any of the Security Documents and/or any
other security, guarantee or indemnity now or in the future held
by the Bank being defective, void or unenforceable, or the
failure of the Bank to take any security, guarantee or
indemnity;
(e) the novation of any of the Guaranteed Obligations; or
(f) anything which would not have released or reduced the liability
of the Guarantors to the Agent or the Banks had the liability of
the Guarantors under Clause 2 been as a principal debtor of the
Agent or the Banks and not as a guarantor.
6 Waivers of the Guarantors
Each of the Guarantors hereby waives:
(a) any requirement that the Agent and/or the Banks make demand upon
or seek to enforce remedies against the Borrower for any
payments or other performance of the Guaranteed Obligations
before demanding payment or performance under this Guarantee,
(b) notice of the occurrence of any event of default under the
Agreement or any of the Security Documents,
(c) its right of subrogation into the position of the Agent and/or
the Banks under the Agreement or any of the Security Documents
until and unless the Guaranteed Obligations shall have been
finally settled and fulfilled; and
(d) any right to limit the liability under this Guarantee resulting
from any failure to comply with section 62 to 74 of the FA. In
addition, section 67 of the FA shall not apply to this
Guarantee.
7 Undertakings
Each of the Guarantors undertakes to the Agent (on behalf of the Banks)
that as long as any monies are being owed or may become owing or any
other performance may become due under this Guarantee, the Guarantors
shall:
(a) procure the compliance with all of the financial covenants and
other undertakings as set out in the Agreement, of the terms of
which it has full knowledge, and by this reference all such
financial covenants and other undertakings are deemed to
constitute an integral part of this Guarantee as if they were
expressly incorporated herein;
(b) not make any distributions or dividends to its shareholders;
Page 98
(c) not agree to any transfer of its shares, granting of options of
ownership or change in its ultimate ownership;
(d) following receipt by any of the Guarantors of a notice from the
Agent of the occurrence of any Event of Default under the
Agreement, none of the Guarantors will make demand for or claim
payment of any moneys due to any of the Guarantors from the
Borrower, or exercise any other right or remedy to which any of
the Guarantors is entitled in respect of such moneys unless and
until all of the Guaranteed Obligations have been paid in full;
(e) not, if the Borrower shall become the subject of an insolvency
proceeding or shall be wound up or liquidated make any claim in
such insolvency, winding-up or liquidation until the Guaranteed
Obligations have been paid in full (unless so instructed by the
Agent and then only on condition that the Guarantors hold the
benefit of any claim in such insolvency or liquidation and pay
any amounts recovered thereunder to the Agent (on behalf of the
Banks));
(f) if it, in breach of paragraph (d) and (e) above, receives or
recovers any money pursuant to any such exercise, claim or proof
as therein referred to, hold such money for the Agent to apply
the same as if they were moneys received or recovered by the
Agent (on behalf of the Banks) under this Guarantee; and
(g) not take from the Borrower any security whatsoever for the
moneys hereby guaranteed.
8 Assignment
The Agent may assign or transfer its rights hereunder to any person to
whom the rights and obligations as Agent and Bank may be assigned to
under the Agreement.
None of the Guarantors may assign nor transfer any of its rights
pursuant to the Guarantee without the prior written consent of the Agent
(on behalf of the Banks).
9 Reinstatement
Notwithstanding any payment received by the Agent and/or the Banks under
the Agreement or any of the Security Documents or any other document
referred to therein, this Guarantee will be reinstated if such payment
is required by bankruptcy law or any other legal provision to be
returned by the Agent and/or the Banks to the party or parties having
made such payment.
Page 99
10 Jurisdiction
For the benefit of the Agent and each Bank, each of the Guarantors
agrees that only the courts of Norway shall have jurisdiction to settle
any disputes in connection with this Guarantee and accordingly submits
to the non-exclusive jurisdiction of Oslo tingrett. Nothing in this
Clause 10 shall limit the right of the Agent or any Bank to start
proceedings against any of the Guarantors in any other court of
competent jurisdiction.
11 Governing law
This Guarantee shall be governed by Norwegian law.
12 Service of process
Without prejudice to any other mode of service, each of the Guarantors:
(a) irrevocably appoints Frontline Management AS as its agent for
service of process relating to any proceedings before Norwegian
courts in connection with this Guarantee;
(b) agrees that failure by its process agent to notify it of the
process will not invalidate the proceeding concerned; and
(c) consents to the service of process to any such proceedings
before the Norwegian courts by posting of a copy of the process
to Frontline Management AS, Bryggegt. 3, P.O. Box 1327 Vika,
0112 Oslo, Norway.
For and on behalf of
[ ]
By:
Name:
Title:
For and on behalf of
[ ]
By:
Name:
Title:
For and on behalf of
[ ]
By:
Name:
Title:
Page 100
Schedule 10B
Form of
Guarantee
issued by
Golar LNG Ltd.
as Guarantor
in favour of
Nordea Bank Norge ASA
as Agent
-------------------------------
Second Priority
Credit Facility
Agreement For an
amount not
exceeding USD
60,000,000 dated
11 October 2002
------------------------------
XXXX & WIIG AS
ADVOKATFIRMA
Page 101
THIS GUARANTEE ("selvskyldnergaranti") is made on the [ ] October 2002
by:
---
GOLAR LNG LTD., Par-la-Ville Place, 4th Floor, 00 Xxx-xx Xxxxx Xxxx,
Xxxxxxxx XX00, Xxxxxxx (the "Guarantor")
in favour of:
------------
NORDEA BANK NORGE ASA, Middelthunsgate 17, P.O. Box 1166 Sentrum, 0107 Oslo,
Norway (the "Agent").
WHEREAS
(A) Golar Gas Holding Company, Inc. as borrower (the "Borrower") has
been granted a credit facility for an amount not exceeding USD
60,000,000 (the "Facility") in accordance with an agreement
dated 11 October 2002 (as the same hereafter from time to time
may be amended referred to as the "Agreement") entered into
among the Borrower, the Financial Institutions listed in
Schedule 1 of the Agreement, the Agent (in its capacity as agent
for the Banks, arranger and bank), Den norske Bank ASA as
arranger and bank and Fortis Bank (Nederland) N.V. as arranger
and Bank;
(B) It is a condition precedent to the drawdown under the Facility
that the Guarantor executes and delivers this Guarantee, and in
consideration thereof the Guarantor has agreed to execute and
deliver this Guarantee to and in favour of the Agent (on behalf
of the Banks) as security for all of the Borrower's obligations
and liabilities to the Banks under the Agreement and all
security documents issued or to be issued pursuant thereto (the
"Security Documents") (such obligations hereinafter referred to
as the "Guaranteed Obligations").
NOW, THEREFORE, the Guarantor hereby undertakes and agrees as follows:
1 Interpretation
1.1 Definitions
In this Guarantee including the preamble hereto (unless the context
otherwise requires) any term or expression defined in the preamble shall
have the meanings ascribed to it therein. In addition, terms and
expressions not defined herein but whose meanings are defined in the
Agreement shall have the meanings set out therein.
Page 102
1.2 Construction
(a) Clause headings are inserted for convenience of reference only
and shall be ignored in the construction of this Guarantee;
(b) references to Clauses are to be construed as references to
clauses of this Guarantee unless otherwise stated;
(c) references to (or to any specified provision of) this Guarantee
or any other document shall be construed as references to this
Guarantee, that provision or that document as from time to time
amended; and
(d) words importing the plural shall include the singular and vice
versa.
2 Guarantee
The Guarantor hereby unconditionally and irrevocably guarantees in
favour of the Agent (on behalf of the Banks) as primary obligor as and
for its own debt (som selvskyldner) and not merely as surety, to pay to
the Agent on demand all monies and to discharge all Guaranteed
Obligations or any part thereof of the Borrower when the same become due
for payment or discharge, provided however, that the Guarantor's
liability never shall exceed USD 80,000,000.
This Guarantee shall be in addition to and not in substitution of any
other security held by the Agent (on behalf of the Banks) from time to
time in respect of the Guaranteed Obligations.
For the purpose of the Norwegian Financial Contracts Act 1999 No. 46
(the "FA"), we hereby declare and confirm:
(a) that the principal amount secured under hereunder is USD
80,000,000 in accordance with the terms of the Agreement; in
each case plus all unpaid interest, default interest, fees,
costs and expenses;
(b) that we have received a copy of the Agreement, and we have
thereby been informed of the security which is to be granted in
respect of the amounts outstanding under the Agreement;
(c) that we have been informed by the Borrower that no event of
which would be an Event of Default under the Agreement has
occurred as per today; and
(d) that we are aware of the cross default provisions relating to
ourselves contained in the Agreement.
3 Continuing security
This Guarantee is a continuing security for the whole of the Guaranteed
Obligations from time to time and shall remain in full force and effect
until all of the Guaranteed Obligations have been finally settled and
fulfilled, and notwithstanding the liquidation of the Borrower or any
change in the constitution of the Borrower or of the Agent or the
absorption of or amalgamation by the Agent in or with any other entity
or the acquisition of all or any part of the assets or undertaking of
the Agent by any other entity.
4 Payment and performance
The Guarantor expressly undertakes to make payment of any amount due to
the Agent and the Banks as a consequence of the Borrower not having
fulfilled its obligations under the Agreement and the Security
Documents, within five Business Days after receipt of notice for payment
from the Agent. Any payments under this Guarantee shall be made in full
without any deductions of counterclaims whatsoever.
Page 103
5 Preservation of Guarantor's liability
The Agent may without the prior written consent of the Guarantor and
without notice to the Guarantor:
(a) materially amend, novate, supplement or replace the Agreement;
(b) agree with the Borrower to increase or reduce the amount of the
Facility, or vary the terms and conditions for its repayment
(including, without limitation, the rate and/or method of
calculation of interest payable on the Facility);
(c) allow to the Borrower or to any other person any time or other
indulgence;
(d) renew, vary, release or refrain from enforcing the Agreement or
any security, guarantee or indemnity which the Agent may now or
in the future hold from the Borrower or from any other person;
(e) compound with the Borrower or any other person;
(f) enter into, renew, vary or terminate any other agreement or
arrangement with the Borrower or any other person; or
(g) make any concession to the Borrower or do or omit or neglect to
do anything which might, but for this provision, operate to
release or reduce the liability of the Guarantor under this
Guarantee.
The liability of the Guarantor under this Guarantee shall not be
affected by:
(i) the absence of, or any defective, excessive or irregular
exercise of, any of the powers of the Borrower;
(ii) any security given or payment made to the Agent or the Banks by
the Borrower or any other person being avoided or reduced under
any law (whether Norwegian or foreign) relating to bankruptcy or
insolvency or analogous circumstance in force from time to time;
(iii) the liquidation, administration, receivership or insolvency of
the Guarantor;
(iv) the Agreement and/or any of the Security Documents and/or any
other security, guarantee or indemnity now or in the future held
by the Bank being defective, void or unenforceable, or the
failure of the Bank to take any security, guarantee or
indemnity;
(v) the novation of any of the Guaranteed Obligations; or
Page 104
(vi) anything which would not have released or reduced the liability
of the Guarantor to the Agent or the Banks had the liability of
the Guarantor under Clause 2 been as a principal debtor of the
Agent or the Banks and not as a guarantor.
6 Waivers of the Guarantor
The Guarantor hereby waives:
(a) any requirement that the Agent and/or the Banks make demand upon
or seek to enforce remedies against the Borrower for any
payments or other performance of the Guaranteed Obligations
before demanding payment or performance under this Guarantee,
(b) notice of the occurrence of any event of default under the
Agreement or any of the Security Documents,
(c) its right of subrogation into the position of the Agent and/or
the Banks under the Agreement or any of the Security Documents
until and unless the Guaranteed Obligations shall have been
finally settled and fulfilled; and
(d) any right to limit the liability under this Guarantee resulting
from any failure to comply with section 62 to 74 of the FA. In
addition, section 67 of the FA shall not apply to this
Guarantee.
7 Undertakings
The Guarantor undertakes to the Agent (on behalf of the Banks) that as
long as any monies are being owed or may become owing or any other
performance may become due under this Guarantee, the Guarantor shall:
(a) procure the compliance with all of the financial covenants and
other undertakings as set out in the Agreement, of the terms of
which it has full knowledge, and by this reference all such
financial covenants and other undertakings are deemed to
constitute an integral part of this Guarantee as if they were
expressly incorporated herein;
(b) not make any distributions or dividends to its shareholders;
(c) not agree to any transfer of its shares, granting of options of
ownership or change in its ultimate ownership;
(d) following receipt by the Guarantor of a notice from the Agent of
the occurrence of any Event of Default under the Agreement, the
Guarantor will make demand for or claim payment of any moneys
due to the Guarantor from the Borrower, or exercise any other
right or remedy to which the Guarantor is entitled in respect of
such moneys unless and until all of the Guaranteed Obligations
have been paid in full;
(e) not, if the Borrower shall become the subject of an insolvency
proceeding or shall be wound up or liquidated make any claim in
such insolvency, winding-up or liquidation until the Guaranteed
Obligations have been paid in full (unless so instructed by the
Agent and then only on condition that the Guarantor holds the
benefit of any claim in such insolvency or liquidation and pay
any amounts recovered thereunder to the Agent (on behalf of the
Banks));
Page 105
(f) if it, in breach of paragraph (d) and (e) above, receives or
recovers any money pursuant to any such exercise, claim or proof
as therein referred to, hold such money for the Agent to apply
the same as if they were moneys received or recovered by the
Agent (on behalf of the Banks) under this Guarantee; and
(g) not take from the Borrower any security whatsoever for the
moneys hereby guaranteed.
8 Assignment
The Agent may assign or transfer its rights hereunder to any person to
whom the rights and obligations as Agent and Bank may be assigned to
under the Agreement.
The Guarantor may not assign nor transfer any of its rights pursuant to
the Guarantee without the prior written consent of the Agent (on behalf
of the Banks).
9 Reinstatement
Notwithstanding any payment received by the Agent and/or the Banks under
the Agreement or any of the Security Documents or any other document
referred to therein, this Guarantee will be reinstated if such payment
is required by bankruptcy law or any other legal provision to be
returned by the Agent and/or the Banks to the party or parties having
made such payment.
10 Jurisdiction
For the benefit of the Agent and each Bank, the Guarantor agrees that
only the courts of Norway shall have jurisdiction to settle any disputes
in connection with this Guarantee and accordingly submits to the
non-exclusive jurisdiction of Oslo tingrett. Nothing in this Clause 10
shall limit the right of the Agent or any Bank to start proceedings
against the Guarantor in any other court of competent jurisdiction.
11 Governing law
This Guarantee shall be governed by Norwegian law.
12 Service of process
Without prejudice to any other mode of service, the Guarantor:
(a) irrevocably appoints Frontline Management AS as its agent for
service of process relating to any proceedings before Norwegian
courts in connection with this Guarantee;
Page 106
(b) agrees that failure by its process agent to notify it of the
process will not invalidate the proceeding concerned; and
(c) consents to the service of process to any such proceedings
before the Norwegian courts by posting of a copy of the process
to Frontline Management AS, Bryggegt. 3, P.O. Box 1327 Vika,
0112 Oslo, Norway.
For and on behalf of
GOLAR LNG LTD.
By:
Name:
Title:
Page 107
Schedule 11
Form of Mortgage
Page 108
Dated: [ ] October 2002
SECOND PREFERRED MORTGAGE
by
[ ]
as Owner
to
NORDEA BANK NORGE ASA
as Second Mortgagee
in respect of
m/v "[ ]"
of Monrovia, Liberia
Official No. [ ]
Page 109
I N D EX
Recitals 3
Article I Definitions 4
Article II Granting Clause 5
Article III Covenants of Owner
Section 1. Payment of Indebtedness 5
Section 2. Insurance and Maintenance 7
Section 3. Mortgage Recording 7
Section 4. Prohibition of Liens 7
Section 5. Notice of Mortgage 8
Section 6 No Sales, Transfers or other
Preferred Mortgages 8
Section 7. Authority of the Mortgagee 8
Article IV Events of Default and Remedies
Section 1. Events of Default; Remedies 9
Section 2. Power of Attorney - Sale 10
Section 3. Power of Attorney - Collection 10
Section 4. Delivery of Vessel 10
Section 5. Mortgagee to Discharge Liens 10
Section 6. Remedies Cumulative 11
Section 7. Cure of Default 11
Section 8. Discontinuance of Proceedings 11
Section 9. Application of Proceeds 11
Section 10. Requisition Compensation 11
Section 11. Severability of Provisions 12
Article V Sundry Provisions
Section 1. Successors and Assigns 12
Section 2. Power of Substitution 12
Section 3. Preferred Status 12
Section 4. Notices 12
Section 5. Recording and Total Amount 12
Section 6 Discharge 13
Appendices
Appendix 1. Second Loan Agreement dated 11 October 2002
Appendix 2. Guarantee dated [ ] October 2002
Page 110
THIS SECOND PREFERRED MORTGAGE (the "Second Mortgage") is made this [ ] day of
[__________] October 2002 by
(1) [_____________________], a Liberian corporation having an address at 00
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx (the "Owner"); in favor of
(2) NORDEA BANK NORGE ASA, a Norwegian banking corporation acting through
its offices at Middelthunsgt. 17, 0368 Oslo, Norway, (the "Second
Mortgagee") as security trustee.
WHEREAS
(A) The Owner is the sole and absolute legal and beneficial owner of the
whole of the Liberian flag motor vessel "[__________]", of [__________]
gross tons and [ ] net tons, or thereabouts, built in [__________] at
[__________] and duly documented in the name of the Owner under the laws
of the Republic of Liberia with her home port at Monrovia, Liberia and
with official number [__________] (the "Vessel").
(B) Pursuant to that certain Loan Agreement dated 31 May 2001, (the "First
Loan Agreement") made among i.e. Golar Gas Holding Company, Inc, a
corporate incorporated under the laws of the Republic of Liberia (the
"Borrower"), the banks and financial institutions specified in the First
Loan Agreement, as lenders (the "First Banks") and Den norske Bank ASA
(as security agent for the lenders) as first mortgagee (the "First
Mortgagee"), the First Banks have made available to the Borrower a term
loan facility in the aggregate principal amount of United States Dollars
Three Hundred and Twenty Five Million (USD325,000,000) (the "First
Loan").
(C) Pursuant to the First Loan Agreement, the Owner has executed and
delivered a certain first preferred mortgage in favour of the First
Mortgagee dated 31 May 2001 and recorded against the Vessel in the
Office of Deputy Commissioner of Maritime Affairs of the Republic of
Liberia in New York at [time] on [__________] in Book PM [__________] at
Page [__________] as security for the Borrower's obligations under the
First Loan Agreement (the "First Mortgage").
(D) Pursuant to that certain Loan Agreement dated 11 October 2002 (the
"Second Loan Agreement"), a copy of the form of which is attached hereto
as Appendix 1 and shall be read together herewith) made among the
Borrower, the financial institutions listed in Schedule 1 to the Second
Loan Agreement, as lenders (the "Second Banks") and the Second
Mortgagee, as agent and arranger, the Second Banks have agreed to made
available to the Borrower a credit loan facility in the aggregate
principal amount of United States Dollars Sixty Million (USD60,000,000)
(the "Second Loan").
(E) The principal of the Second Loan shall be repaid as provided in Clause 3
of the Second Loan Agreement, and interest on the Second Loan at the
rate of LIBOR plus the Margin for the relevant Interest Period (each as
defined in the Second Loan Agreement) shall be paid as provided in
Clause 7 of the Second Loan Agreement.
Page 111
(F) Pursuant to the Second Loan Agreement, the Owner has executed and
delivered to the Second Mortgagee a guarantee dated [__________] October
2002 (the "Guarantee"), of the Second Loan and interest thereon and all
other sums payable or to become payable under the Second Loan Agreement,
A copy of the Guarantee is annexed hereto as Appendix 2 and shall be
read together herewith.
(G) It is a condition to advance of the Second Loan under the Second Loan
Agreement that the Owner executes and delivers this Second Preferred
Mortgage to the Second Mortgagee as security for the Owner's obligations
under the Guarantee.
(H) Pursuant to the Second Loan Agreement, the Banks have appointed the
Second Morgagee their security trustee/mortgage holder with full power
to receive, hold, administer and enforce this Second Mortgage for the
benefit of the Banks.
(I) In order to secure the payment to the Second Mortgagee of the Secured
Indebtedness (as hereinafter defined), and to secure the performance and
observance of and compliance with all of the agreements, covenants,
terms and conditions of the Guarantee and this Second Mortgage
contained, the Owner has duly authorized the execution and delivery of
this Second Preferred Mortgage under and pursuant to Chapter 3 of Title
21 of the Liberian Code of Laws Revised, as amended.
NOW THEREFORE THIS MORTGAGE WITNESSETH:
ARTICLE I
Definitions
In this Second Mortgage, unless the context otherwise requires:
(i) "Environmental Affiliate" means any agent or employee of the Owner or
any person in a contractual relationship with the Owner relating to the
Vessel or her operation, whose acts or omissions would have a material
adverse effect on the Owner's ability to meet its obligations to the
Second Mortgagee with respect to the Secured Indebtedness or on the
security provided to the Second Mortgagee with respect to the Secured
Indebtedness;
Page 112
(ii) "Environmental Approvals" means any and all consents, permits, licenses,
approvals, rulings, variances, exemptions or other authorisations by any
governmental or public body or authorities or courts, required under
applicable Environmental Laws;
(iii) "Environmental Claims" means (i) any claim by, or directive from, or
enforcement, clean-up, removal or any other governmental or regulatory
actions initiated by, any applicable governmental, judicial, or other
regulatory authority alleging breach of, or non-compliance with, any
Environmental Laws or Environmental Approvals or otherwise howsoever
relating to or arising out of an Environmental Release, or (ii) any
claim by any other third party howsoever relating to or arising out of
an Environmental Release (and in each such case "claim" shall include a
claim for damages, clean-up costs, contribution, compliance, remedial
action or otherwise);
(iv) "Environmental Laws" mean all national, international and state laws,
rules, regulations, treaties, conventions and agreements whatsoever
relating to pollution or protection of the environment (including,
without limitation, the United States Oil Pollution Act of 1990, as
amended, and any comparable laws of the individual States of the United
States of America);
(v) "Environmental Release" means any release of an Environmentally
Sensitive Material from the Vessel or as a result of her operation or
navigation, for which the Owner has any liability under any applicable
Environmental Laws or any Environmental Claim;
(vi) "Environmentally Sensitive Material" means and includes oil, oil
products and any other substance which is polluting, toxic, contaminant
or hazardous or any substance the release of which is regulated,
prohibited or penalised by or pursuant to any Environmental Law;
(vii) "ISM Code" means the International Safety Management Code (including the
guidelines on its implementation), adopted by the International Maritime
Organisation Assembly as Resolutions A.741(18) and A.788(19), as the
same may be amended or supplemented from time to time. The terms "safety
management system", "Safety Management Certificate", "Document of
Compliance" and "major non-conformity" shall have the same meanings as
are given to them in the ISM Code.
(viii) "Secured Indebtedness" means the aggregate of the Second Loan and
interest thereon, default interest, expenses, fees, and all other sums
of any kind at any time which may become owing by the Owner to the
Second Mortgagee under the Guarantee and this Second Mortgage;
(ix) "Security Period" means the period commencing on the date hereof and
terminating upon discharge of the security created by this Second
Mortgage by payment in full of the Secured Indebtedness;
Page 113
(x) "Vessel" means the whole of the vessel described in Recital A hereof and
includes her engines, machinery, boats, boilers, masts, rigging,
anchors, chains, cables, apparel, tackle, outfit, spare gear, fuel,
consumable and other stores, freight, belongings and appurtenances,
whether on board or ashore, whether now owned or hereafter acquired, and
all additions, improvements and replacements hereafter made in or to the
said vessel, or any part thereof, or in or to the stores, belongings and
appurtenances aforesaid; and
(xi) Terms and expressions used herein and not otherwise defined herein,
shall bear the meanings ascribed to them in the Second Loan Agreement.
ARTICLE II
Grant of Second Mortgage
NOW THEREFORE, in consideration of the premises and of other good and valuable
consideration, the adequacy and receipt whereof are hereby acknowledged, and in
order to secure the payment of the Secured Indebtedness and to secure the
performance and observance of and compliance with the covenants, terms and
conditions in the Guarantee and this Second Mortgage contained, the Owner has
granted, conveyed and mortgaged and does by these presents grant, convey and
mortgage, to and in favor of the Second Mortgagee, its successors and assigns
(subject to the prior rights of the First Mortgagee pursuant to the First
Mortgage), the whole of the Vessel TO HAVE AND TO HOLD the same unto the Second
Mortgagee, its successors and assigns, forever, upon the terms set forth in this
Second Mortgage for the enforcement of the payment of the Secured Indebtedness
and to secure the performance and observance of and compliance with the
covenants, terms and conditions in the Guarantee and this Second Mortgage
contained SUBJECT AND SUBORDINATE, however, in all respects to the First
Mortgage and all the terms, provisions and conditions thereof;
PROVIDED, ONLY, and the condition of these presents are such that, if the Owner
and/or its successors or assigns shall pay or cause to be paid to the Second
Mortgagee, its successors and assigns, the Secured Indebtedness as and when the
same shall become due and payable in accordance with the terms of the Guarantee
and this Second Mortgage, and the Owner shall perform, observe and comply with
all and singular of the covenants, terms and conditions in the Guarantee and
this Second Mortgage contained, expressed or implied, to be performed, observed
or complied with by and on the part of the Owner or its successors or assigns,
all without delay or fraud and according to the true intent and meaning hereof
and thereof, then these presents and the rights of the Second Mortgagee under
this Second Mortgage shall cease and determine and, in such event, the Second
Mortgagee agrees by accepting this Second Mortgage, at the expense of the Owner,
to execute all such documents as the Owner may reasonably require to discharge
this Second Mortgage under the laws of the Republic of Liberia; otherwise to be
and remain in full force and effect.
Page 114
ARTICLE III
Covenants of the Owner
The Owner covenants and agrees with the Second Mortgagee as follows:
Section 1. Payment of Secured Indebtedness
------------------------------------------
The Owner will pay the Secured Indebtedness as and when the same shall become
due and payable and will observe, perform and comply with the covenants, terms
and conditions herein and in the Guarantee, expressed or implied, on its part to
be observed, performed or complied with.
Section 2. Insurance and Maintenance
------------------------------------
The Owner undertakes at all times throughout the Security Period to:
(a) insure and keep the Vessel insured in accordance with the provisions of
Clause 17.14 of the Second Loan Agreement;
(b) keep and cause the Vessel to be kept in a good and efficient state of
repair, maintain the highest class available for vessels of her type
with a classification society acceptable to the Second Mortgagee, comply
with the provisions of all laws, regulations and requirements (statutory
or otherwise) from time to time applicable to vessels registered under
the flag of the Republic of Liberia, procure that all repairs to or
replacements of any damaged, worn or lost parts or equipment be effected
in such manner (both as regards workmanship and quality of materials) as
not to diminish the value of the Vessel, and permit the Second Mortgagee
by surveyors or other persons appointed by them in that behalf to board
the Vessel for the purpose of inspecting her condition or for the
purpose of satisfying themselves in regard to proposed or executed
repairs and to afford all proper facilities for such inspections;
(c) submit or to cause the Vessel to be submitted to such periodic or other
surveys as may be required for classification purposes and, if requested
by the Second Mortgagee, to supply or to cause to be supplied to the
Second Mortgagee copies of all survey reports and confirmations of class
issued in respect thereof and to furnish to the Second Mortgagee a
certificate by [ ] or such other classification society acceptable to
the Second Mortgagee that the Vessel's aforesaid classification is
maintained;
(d) pay and discharge or to cause to be paid and discharged all debts,
damages and liabilities whatsoever which have given or may give rise to
maritime or possessory liens on or claims enforceable against the Vessel
except to the extent permitted by Article III, Sections 2(i) and 4
hereof and in event of arrest of the Vessel pursuant to legal process or
in event of her detention in exercise or purported exercise of any such
lien as aforesaid, procure the release of the Vessel from such arrest or
detention within ten (10) days of the occurrence of such event;
Page 115
(e) not cause or permit the Vessel to be operated in any manner contrary to
law, and not employ the Vessel or suffer her employment in any trade or
business which is forbidden by the laws of the Republic of Liberia or is
otherwise illicit or in carrying illicit or prohibited goods or in any
manner whatsoever which may expose the Vessel to penalty, forfeiture or
capture or render her liable to condemnation or to destruction, seizure
or confiscation and in event of hostilities in any part of the world
(whether war be declared or not) not to employ the Vessel or suffer her
employment in carrying any contraband goods or to enter or trade to any
zone which is declared a war zone by the Vessel's war risks Insurers
unless there shall have been effected by the Owner at its expense
special insurance coverage to extend to such voyage;
(f) comply with all applicable Environmental Laws and obtain and comply with
all required Environmental Approvals relating to the Vessel, her
operation or management and the business of the Owner, including,
without limitation, requirements relating to the establishment of
financial responsibility (and shall require that all Environmental
Affiliates of the Owner comply with all applicable Environmental Laws
and obtain and comply with all required Environmental Approvals relating
to the Vessel);
(g) upon the request of the Second Mortgagee, conduct and complete all
reasonably necessary investigations, studies, sampling, audits and
testings required by any known (or threatened) Environmental Release;
(h) promptly upon the occurrence of any of the following events, provide to
the Second Mortgagee a certificate of an officer of the Owner specifying
in detail the nature of such event and the proposed response of the
Owner or its Environmental Affiliate;
(i) the receipt by the Owner or any Environmental Affiliate (where
the Owner has knowledge of such receipt) of any Environmental
Claim; or
(ii) any (or any threatened) Environmental Release;
and upon the written request by the Second Mortgagee, the Owner shall
submit to the Second Mortgagee, at reasonable intervals, a report
updating the status of any occurrence of an Environmental Claim or an
Environmental Release,
(i) except for the First Mortgage and this Second Mortgage keep and cause
the Vessel to be kept free and clear of all liens, charges, mortgages
and encumbrances except where the Owner has received prior written
consent of the First Mortgagee and the Second Mortgagee to the creation
of any such liens, charges, mortgages and/or encumbrances;
(j) (i) to comply, at all times, and be responsible for compliance by
itself and by the Vessel, with the ISM Code;
(ii) at all times to ensure that:
(a) the Vessel has a valid Safety Management Certificate;
(b) the Vessel is subject to a safety management system
which complies with the ISM Code; and
(c) to have a valid Document of Compliance for the Vessel,
and to hold it on board the Vessel,
and to deliver to the Second Mortgagee on request a copy of a valid
Safety Management Certificate and a valid Document of Compliance in
respect of its Vessel in each case duly certified by an officer of the
Owner;
(iii) to promptly notify the Second Mortgagee of any actual or
threatened withdrawal of an applicable Safety Management
Certificate or Document of Compliance;
Page 116
(iv) to promptly notify the Second Mortgagee of the identity of the
person ashore designated for the purposes of paragraph 4 of the
ISM Code and of any change in the identity of that person; and
(v) to promptly notify the Second Mortgagee of the occurrence of any
accident or major non-conformity requiring action under the ISM
Code.
Section 3. Mortgage Recording
-----------------------------
The Owner will cause this Second Mortgage to be duly recorded in accordance with
the provisions of Chapter 3 of Title 21 of the Liberian Code of Laws Revised, as
amended, (hereinafter called the "Liberian Maritime Law") and will otherwise
comply with and satisfy all of the provisions of the Liberian Maritime Law in
order to establish and maintain this Second Mortgage as a second preferred
mortgage on the Vessel.
Section 4. Prohibition of Liens
-------------------------------
Neither the Owner, any charterer, the Master of the Vessel nor any other person
has or shall have any right, power or authority to create incur or permit to be
placed or imposed or continued upon the Vessel, its freights, profits or hire
any lien whatsoever other than the lien created under the First Mortgage and
this Second Mortgage, other liens in favour of the Second Mortgagee and liens
for crew's wages and salvage.
Section 5. Notice of Second Mortgage
------------------------------------
The Owner will place, and at all times and places will retain, a properly
certified copy of the Second Mortgage on board the Vessel with her papers and
certificates and cause this Second Mortgage to be exhibited to all persons
having business with the Vessel which might give rise to a maritime lien
thereon, and will place and keep prominently displayed in the chart room and in
the Master's cabin of the Vessel a framed printed notice in plain type reading
as follows:
"NOTICE OF MORTGAGE
This Vessel is owned by [ ] and is covered by a Second Preferred Mortgage in
favor of NORDEA BANK NORGE ASA, Middelthunsgt. 17, 0368 Oslo, Norway, as Second
Mortgagee, under the authority of the Liberian Code of Laws Revised, as amended,
and as the same may be or may have been further amended, modified and/or
re-codified. Under the terms of said Second Mortgage, neither the Owner, any
charterer, the Master of this Vessel nor any other person has any right, power
or authority to create, incur or permit to be imposed upon this Vessel, its
freights, profits or hire, any other lien whatsoever except liens for crew's
wages and salvage."
Section 6. No Sales, Transfers or Other Preferred Mortgage
----------------------------------------------------------
The Owner will not sell, mortgage, transfer or change the management (technical
or commercial) of the Vessel, without the prior written consent of the Second
Mortgagee, and any such written consent to any one sale, mortgage, transfer, or
change of management shall not be construed to be a waiver of this provision
with respect to any subsequent proposed sale, mortgage, transfer or change of
management. Any such sale, mortgage, transfer or change in management of the
Vessel shall be subject to the provisions of this Second Mortgage.
Section 7. Authority of the Second Mortgagee
--------------------------------------------
Without prejudice to any other rights of the Second Mortgagee hereunder:
(i) in the event that the provisions of Article III Section 2.(a) hereof
shall not be complied with, the Second Mortgagee shall be at liberty to
effect and thereafter replace, maintain and renew all such insurances
upon the Vessel as in their sole discretion they may think fit;
(ii) in the event that the provisions of Article III Section 2.(b) and/or (c)
hereof shall not be complied with, the Second Mortgagee shall be at
liberty to arrange for the carrying out of such repairs and/ or surveys
as they deem expedient or necessary; and
(iii) any and all expenses incurred by the Second Mortgagee (including fees of
counsel) in respect of their performances under the foregoing
sub-sections (i) and (ii) shall be paid by the Owner on demand, with
interest thereon at the rate provided for in sub-clause 7.4 of the
Second Loan Agreement from the date when such expenses were incurred by
the Second Mortgagee.
Page 117
ARTICLE IV
Events of Default and Remedies
Section 1. Events of Default; Remedies
--------------------------------------
In case of any one or more of the following events, herein termed "events of
default", shall happen:
(a) an event of default stipulated in Clause 18 of the Loan Agreement shall
occur; or
(b) a default in the due and punctual observance and performance of any of
the covenants or provisions of the Second Loan Agreement or this Second
Mortgage shall have occurred and be continuing; or
(c) any notice shall have been issued by the government or any bureau,
department, officer, board or agency thereof of the country of registry
of the Vessel to the effect that the Vessel is subject to cancellation
from such registry or the certificate of registry of the Vessel is
subject to revocation or cancellation for any reason whatsoever;
then:
The Second Mortgagee shall have the right to (subject to the rights of the First
Mortgagee under the First Mortgage):
(i) declare all the then unpaid Secured Indebtedness to be immediately due
and payable, and upon such declaration, the same, shall become and be
due and payable;
(ii) exercise all of the enforcement rights and remedies in foreclosure and
otherwise given to the Second Mortgagee by the provisions of the law of
the country of registry of the Vessel or of any other jurisdiction where
the Vessel may be at the relevant time or any other relevant
jurisdiction;
(iii) bring suit at law, in equity or in admiralty, as they may be advised, to
obtain judgement (if required by the laws of the relevant jurisdiction)
against the Owner for the payment of the Secured Indebtedness, and
collect the same out of any and all property of the Owner covered by
this Second Mortgage;
(iv) take and enter into possession of the Vessel, at any time, wherever the
same may be, without prior legal proceedings (if permitted by the laws
of the relevant jurisdiction) and, without being responsible for
possible loss or damage to the Owner, the Owner or other person in
possession of the Vessel shall forthwith upon demand of the Second
Mortgagee surrender possession of the Vessel to the Second Mortgagee;
(v) hold, lay up, lease, charter, operate or otherwise use the Vessel
(without being responsible for possible loss or damage) for such time
and upon such terms as it may deem to be for its best advantage, and
demand, collect and retain all hire, freights, earnings, revenues,
income, profits, return premiums, sale or insurance proceeds, salvage
awards or recoveries, recoveries in general average, and all other sums
due or to become due in respect of the Vessel;
Page 118
(vi) sell the Vessel by public auction or private contract (without being
responsible for possible loss and damage) on such terms and conditions
as the Second Mortgagee shall deem to be for its best advantage free
from any claim of or by the Owner, by mailing notice of such sale,
whether public or private, to the Owner at its last known address as set
forth in this Second Mortgage, seven calendar days prior to the date
fixed for entering into the contract of sale and, in the event of public
auction, by first publishing notice of any such public sale for ten (10)
consecutive days in a newspaper of general circulation published in the
City of New York, State of New York. In the event that the Vessel shall
be offered for sale by private sale, reasonable notice must be given to
the Owner but need not to be more than seven days before the private
sale and no newspaper publication shall be required nor notice of the
adjournment of sale. Sale may be held at such place and at such time as
the Second Mortgagee by notice may have specified and any sale may be
conducted without bringing the Vessel to the place designated for such
sale and any sale may be conducted in such manner as the Second
Mortgagee may deem to be for their best advantage, and the Second
Mortgagee may become the purchaser at any sale. The Owner agrees that
any sale of the Vessel made in compliance with the provisions of this
Section 1 shall be deemed made in a commercially reasonable manner as
far as it is concerned.
Anything in this Section to the contrary notwithstanding, this Second
Mortgage is subject to the First Mortgage and the rights and powers
granted to the Second Mortgagee herein are subject and subordinate
(except for the rights to repayment of the Secured Indebtedness) to the
corresponding rights and powers granted to the First Mortgagee under the
First Mortgage and may not be exercised in such a manner as to impair
such rights and powers under the First Mortgage.
Section 2. Power of Attorney - Sale
-----------------------------------
The Owner hereby irrevocably appoints the Second Mortgagee as its
attorney-in-fact to execute and deliver to any purchaser aforesaid, and is
hereby vested with full power and authority to execute, in the name and on
behalf of the Owner, a bill of sale or other form of good conveyance of title to
the Vessel so sold (subject to the rights of the First Mortgagee under the First
Mortgage).
Section 3. Power of Attorney - Collection
-----------------------------------------
The Second Mortgagee is hereby appointed attorney-in-fact of the Owner, with
full power, upon the happening of any event of default, in the name of the Owner
(and subject to the rights of the First Mortgagee under the First Mortgage) to
demand, collect, receive, compromise and sue for, so far as may be permitted by
law, all freight, hire, earnings, revenues, income, profits and sale proceeds of
the Vessel and all amounts due from underwriters under any insurance thereon as
payment of losses or as a return of premia or otherwise, salvage awards and
recoveries, recoveries in general average or otherwise, and all other sums due
or to become due at the time of the happening of any event of default as defined
in Section 1 of Article IV hereof in respect of the Vessel, or in respect of any
insurance thereon, from any person whomsoever, and to make, give and execute in
the name of the Owner acquittances, receipts, releases or other discharges for
the same, and to endorse and accept in the name of the Owner all checks, notes,
drafts, warrants, agreements and other instruments in writing with respect to
the foregoing.
Section 4. Delivery of Vessel
-----------------------------
Whenever any right to enter and take possession of the Vessel accrues to the
Second Mortgagee pursuant to this Second Mortgage, it may require the Owner to
deliver, and the Owner shall on demand, at its own cost and expense, deliver to
the Second Mortgagee the Vessel as demanded. If any legal proceedings shall be
taken to enforce any right under this Second Mortgage, the Second Mortgagee
shall be entitled as a matter of right to the appointment of a receiver of the
Vessel and of the freights, hire, earnings, revenues, income and profits due or
to become due and arising from the operation thereof.
Page 119
Section 5. Mortgagee to Discharge Liens
---------------------------------------
The Owner authorizes and empowers the Second Mortgagee or its appointees to
appear in the name of the Owner, its successors and assigns, in any court of any
country or nation of the world where a suit is pending against the Vessel
because of or on account of any alleged lien against the Vessel from which the
Vessel has not been released and to take such proceedings as to them may seem
proper towards the defence of such suit and purchase or discharge of such lien,
and all expenditures made or incurred by them for the purpose of such defence or
purchase or discharge shall be a debt due from the Owner, its successors and
assigns, to the Second Mortgagee, and shall be secured by the lien of this
Second Mortgage in like manner and extent as if the amount and description
thereof were written herein.
Section 6. Remedies Cumulative
------------------------------
Each and every power and remedy herein given to the Second Mortgagee shall be
cumulative and shall be in addition to every other power and remedy herein given
or now or hereafter existing at law, in equity, in admiralty or by statute, and
each and every power and remedy whether herein given or otherwise existing may
be exercised from time to time and as often and in such order as may be deemed
expedient by the Second Mortgagee, and the exercise or the beginning of the
exercise of any power or remedy shall not be construed to be a waiver of the
right to exercise at the same time or thereafter any other power of remedy. No
delay or omission by the Second Mortgagee in the exercise of any right or power
or in the pursuance of any remedy accruing upon any default as above defined
shall impair any such right, power or remedy or be construed to be a waiver of
any such event or default.
Section 7. Cure of Default
--------------------------
If at any time after an event of default and prior to the actual sale of the
Vessel by the Second Mortgagee or prior to any enforcement or foreclosure
proceedings the Owner offers completely to cure all events of default and to pay
all expenses, advances and damages to the Second Mortgagee consequent on such
events of default, with interest at the interest rate set forth in sub-clause
7.4 of the Second Loan Agreement, then the Second Mortgagee may, but shall not
be obligated to do so, accept such offer and payment and restore the Owner to
its former position, but such action, if taken, shall not affect any subsequent
event of default or impair any rights consequent thereon.
Section 8. Discontinuance of Proceedings
----------------------------------------
In case the Second Mortgagee shall have proceeded to enforce any right, power or
remedy under this Second Mortgage by foreclosure or otherwise, and such
proceedings shall have been discontinued and abandoned for any reason or shall
have been determined adversely to the Second Mortgagee, then and in every such
case the Owner and the Second Mortgagee shall be restored to their former
position and rights hereunder with respect to the property subject or intended
to be subject to this Mortgage, and all rights, remedies and powers of the
Mortgagee shall continue as if no such proceedings had been taken.
Section 9. Application of Proceeds
----------------------------------
The proceeds of any sale of the Vessel and any and all other moneys received by
the Second Mortgagee pursuant to or under the terms of this Second Mortgage or
in any proceedings hereunder the application of which has not elsewhere herein
been specifically provided for, shall (subject to the rights of the First
Mortgagee under the First Mortgage) be applied as follows:
First: So much of such amounts as shall be required to pay all taxes,
assessments or liens in respect of the Vessel having priority over liens
or security interests in favour of the Second Mortgagee, shall be
applied to the payment of such taxes, assessments or liens;
Page 120
Second: So much of such amounts as shall be required to pay in full the Secured
Indebtedness shall be applied to the payment of the Secured
Indebtedness.
Third: Any surplus thereafter remaining, to the Owner or Xxxxx's successors in
interest and assigns, or to whomever may be lawfully entitled to receive
the same.
Section 10. Requisition Compensation
------------------------------------
Subject to the rights of the First Mortgagee under the First Mortgage and the
First Deed of Assignment, in the event that the title or ownership of the Vessel
shall be requisitioned, purchased or taken by any government of any country or
any department, agency or representative thereof, pursuant to any present or
future law, proclamation, decree, order or otherwise, the lien of this Second
Mortgage shall be deemed to attach to the claim for compensation therefore, and
the compensation is hereby agreed to be payable to the Second Mortgagee, who
shall be entitled to receive the same and shall apply it as provided in Section
9 of this Article III. In the event of any such requisition, purchase or taking,
the Owner shall promptly execute and deliver to the Second Mortgagee such
documents, if any, as in the opinion of the Second Mortgagee may be necessary or
useful to facilitate or expedite the collection by the Second Mortgagee of such
compensation, purchase price, reimbursement or award as is payable to them
hereunder.
Section 11. Severability of Provisions
--------------------------------------
In the event that any provision or provisions of this Second Mortgage shall be
declared invalid, void or otherwise inoperative by any present or future court
of competent jurisdiction in any country, the Owner will, without prejudice to
any other right or remedy of the Second Mortgagee under the Second Loan
Agreement or the Guarantee or this Second Mortgage, execute and deliver such
other and further instruments and do such things as in the opinion of the Second
Mortgagee and its counsel will be necessary or advisable to carry out the time
intent and spirit of this Second Mortgage. In any event, any such declaration of
partial invalidity shall not affect the validity of any other provision or
provisions of this Second Mortgage, or the validity of this Second Mortgage as a
whole.
ARTICLE V
Sundry Provisions
Section 1. Successors and Assigns
---------------------------------
No assignment shall be made in respect of this Second Mortgage except in
accordance with the terms of Clause 24 of the Second Loan Agreement.
Section 2. Power of Substitution
--------------------------------
Wherever and whenever herein any right, power or authority is granted or given
to the Second Mortgagee, such right, power or authority may be exercised in all
cases by the Second Mortgagee or such agent or agents the Second Mortgagee may
appoint, and the act or costs of such agent or agents when taken shall
constitute the act or costs of the Second Mortgagee hereunder.
Section 3. Preferred Status of this Second Mortgage
---------------------------------------------------
Anything herein to the contrary not withstanding, it is intended that nothing
herein shall waive the preferred status of this Second Mortgage and that, if any
provision or portion thereof herein shall be construed to waive the preferred
status of this Second Mortgage, then such provision to such extent shall be void
and of no effect.
Section 4. Notices
------------------
Any notice or other communication to be given pursuant hereto shall be
transmitted and addressed as set forth in this Second Mortgage.
Section 5. Recording And Total Amount
-------------------------------------
For the purpose of recording this Second Preferred Mortgage as required by
Chapter 3 of Title 21 of the Liberian Code of Laws Revised, as amended, the
total amount of this Second Mortgage is Sixty Million United States Dollars (USD
60,000,000) and interest thereon, default interest, costs, expenses, and
performance of Second Mortgage covenants. The date of maturity is on demand.
Page 121
It is not intended that this Second Mortgage shall include property other than
the Vessel as the term "vessel" is used in subdivision (2) of Section 106 of
Chapter 3 of Title 21 of the Liberian Code of Laws Revised, as amended.
Notwithstanding the foregoing, for property other than the Vessel, if any should
be determined to be covered by this Second Mortgage, the discharge amount is
zero point zero one per centum (0.01%) of the total amount of this Second
Mortgage.
Section 6. Discharge
--------------------
The Second Mortgagee shall, when the Secured Indebtedness has been paid to the
Second Mortgagee in full, at the cost and expense of the Owner, provide for
discharge and release of this Second Mortgage.
IN WITNESS WHEREOF, the Owner has caused this Second Mortgage to be duly
executed the day and year first above written.
[ ]
By
--------------------------------
Attorney-in-Fact
Page 122
ACKNOWLEDGEMENT
STATE OF NORWAY )
: ss.:
CITY OF OSLO )
On this _____ day of [ ], 2002, before me personally appeared [
_________________________ ], to me known, who being by me duly sworn, did depose
and say that he/she resides at _______________________________________, that
he/she is the Attorney-in-Fact of [ ], the corporation described in and which
executed the foregoing instrument, and that he/she signed his/her name thereto
pursuant to authority granted to him/her by the board of directors of said
corporation.
---------------------------
Page 123
Schedule 12
List of Charters and Management Agreements
Page 124
M/V GOLAR SPIRIT
Charter
Time charter dated 9 September 1983 between Pertamina and Golar Gas Cryogenics
Inc. as amended by Addendum No. 1 dated 2 July 1986 and Addendum No. 2 dated 20
February 1990 expiry on or about 1 December 2006 subject to charterer's option
to extend.
Charter Guarantee
None.
Management Agreement
Management Agreement dated 1 January 1999 between Golar Gas Cryogenics Inc. and
Osprey Maritime Management Limited.
M/V HILLI
Charter
Short term pre-emption charter dated 7 September 2000 between Xxxxx Xxxxx Inc.
and Methane Services Limited entered into pursuant to the Master Agreement
covering period until delivery under long term charter.
Long term charter dated 25 October 2001 between Xxxxx Xxxxx Inc. and Methane
Services Limited.
Omnibus agreement dated 25 October 2001 between Methane Services Ltd., BG
International Ltd., BG Asia Pacific PTE. Ltd., Osprey Maritime Ltd., Golar
Management Ltd., Golar LNG Ltd., Xxxxx Xxxxxxx Inc., Xxxxx Freeze Inc., Xxxxx
Xxxx Inc., Xxxxx Xxxxx Inc., Golar LNG 2215 Corporation and Poten & Partners
Inc.
Charter Guarantee
(a) Guarantee dated 7 September 2000 from BG International Limited
in favour of Xxxxx Xxxxx Inc. (in respect of pre-emption
charter).
(b) Guarantee dated 8 May 2001 from BG International Limited in
favour of Xxxxx Xxxxx Inc. (in respect of long term charter).
Management Agreement
Management Agreement dated 1 January 1999 between Xxxxx Xxxxx Inc. and Osprey
Maritime Management Limited.
Page 125
M/V GIMI
Charter
Short term pre-emption charter to be entered into between Xxxxx Xxxx Inc. and
Methane Services Limited Pursuant to the Master Agreement covering period until
delivery under long term charter.
Long term charter dated 25 October 2001 between Xxxxx Xxxx Inc. and Methane
Services Limited.
Omnibus agreement dated 25 October 2001 between Methane Services Ltd., BG
International Ltd., BG Asia Pacific PTE. Ltd., Osprey Maritime Ltd., Golar
Management Ltd., Golar LNG Ltd., Xxxxx Xxxxxxx Inc., Xxxxx Freeze Inc., Xxxxx
Xxxx Inc., Xxxxx Xxxxx Inc., Golar LNG 2215 Corporation and Poten & Partners
Inc.
Charter Guarantee
Guarantee dated 2 March 2000 from BG International Limited in favour of Xxxxx
Xxxx Inc. (in respect of long term charter)
Management Agreement
Management Agreement dated 1 January 1999 between Xxxxx Xxxx Inc. and Osprey
Maritime Management Limited.
M/V XXXXXXX
Charter
Short term pre-emption charter dated 30 November 2000 between Xxxxx Xxxxxxx Inc.
and Methane Services Limited entered into pursuant to the Master Agreement
covering period until delivery under long term charter.
Long term charter dated 25 October 2001 between Xxxxx Xxxxxxx Inc. and Methane
Services Limited.
Omnibus agreement dated 25 October 2001 between Methane Services Ltd., BG
International Ltd., BG Asia Pacific PTE. Ltd., Osprey Maritime Ltd., Golar
Management Ltd., Golar LNG Ltd., Xxxxx Xxxxxxx Inc., Xxxxx Freeze Inc., Xxxxx
Xxxx Inc., Xxxxx Xxxxx Inc., Golar LNG 2215 Corporation and Poten & Partners
Inc.
Charter Guarantee
Guarantee dated 30 November 2000 from BG International Limited in favour of
Xxxxx Xxxxxxx Inc. (in respect of long term charter).
Management Agreement
Management Agreement dated 1 January 1999 between Xxxxx Xxxxxxx Inc. and Osprey
Maritime Management Limited.
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M/V GOLAR FREEZE
Charter
Short term pre-emption charter dated 7 September 2000 between Golar Freeze Inc.
and Methane Services Limited entered into pursuant to the Master Agreement, such
charter to expire on 31 December 2009 subject to charterer's option to extend or
enter into a long term charter in accordance with the terms of the Master
Agreement as amended by Addendum No. 1 dated 25 October 2001.
Long term charter dated 25 September 2002 between Golar Freeze Inc. and Methane
Services Limited.
Omnibus agreement dated 25 October 2001 between Methane Services Ltd., BG
International Ltd., BG Asia Pacific PTE. Ltd., Osprey Maritime Ltd., Golar
Management Ltd., Golar LNG Ltd., Xxxxx Xxxxxxx Inc., Xxxxx Freeze Inc., Xxxxx
Xxxx Inc., Xxxxx Xxxxx Inc., Golar LNG 2215 Corporation and Poten & Partners
Inc.
Charter Guarantee
Guarantee dated 7 September 2000 from BG International Limited and in favour of
Golar Freeze Inc. (in respect of the short term charter).
Management Agreement
Management Agreement dated 1 January 1999 between Golar Freeze Inc. and Osprey
Maritime Management Limited.
In this Schedule 12 "Master Agreement" means the master agreement dated 12
August 1999 as amended by addendum no. 1 thereto dated 5 January 2000 between
Xxxxx Xxxxxxx Inc., Xxxxx Freeze Inc., Xxxxx Xxxx Inc., Xxxxx Xxxxx Inc., Osprey
Maritime and Methane Services Limited.
Page 127
Schedule 13
Form of
Co-ordination Agreement
between
Den norske Bank ASA
as First Mortgagee
and
Golar Gas Holding Company, Inc.
as Borrower
and
Nordea Bank Norge ASA
as Second Mortgagee
-------------------------------
Second Priority
Credit Facility
Agreement for an
amount not
exceeding USD
60,000,000 dated
11 October 2002
-------------------------------
XXXX & WIIG AS
Page 128
THIS CO-ORDINATION AGREEMENT (the "Agreement") dated [ ] October 2002 is made
between:
1. GOLAR GAS HOLDING COMPANY, INC., a company incorporated in the Republic
of Liberia, having its registered office is at 00 Xxxxx Xxxxxx,
Xxxxxxxx. Liberia (the "Borrower");
2. DEN NORSKE BANK ASA, Xxxxxxxx 00, 0000 Xxxx, Xxxxxx (hereinafter called
the "First Mortgagee", which expression includes its respective
successors and assignees); and
3. NORDEA BANK NORGE ASA, X.X.Xxx 1166 Sentrum, Middelthunsgt. 17, 0368
Oslo, Norway (hereinafter called the "Second Mortgagee", which
expression includes its respective successors and assignees).
WHEREAS:
(A) Golar Gas Cryogenics Inc., Xxxxx Xxxxx Inc., Xxxxx Xxxx Inc., Xxxxx
Xxxxxxx Inc. and Golar Freeze Inc., all being companies incorporated and
existing under the laws of the Republic of Liberia, (the "Owning
Companies") are the owners of the following vessels; M/V "GOLAR SPIRIT",
M/V "HILLI", M/V "GIMI", M/V "XXXXXXX" and M/V "GOLAR FREEZE" (together
referred to as the "Vessels") all registered in the Liberian Ship
Registry.
(B) Pursuant to, and subject to the terms and conditions of a term loan
facility agreement dated 31 May 2001 (as the same may have been and may
hereafter from time to time be amended referred to as the "First
Agreement") entered into by and between among others the Borrower and
the First Mortgagee as security agent on behalf of a syndicate of banks
(the "First Banks"), the First Banks have made available to the Borrower
a loan in the amount of USD 325,000,000 (the "First Facility") for the
purpose of enabling the Borrower to refinance certain existing
indebtedness in respect of the Vessels, and provide liquidity support
and working capital.
As security for the First Facility and all other sums owing to the First
Banks under the First Agreement and the First Securities (as defined
below) (together the "First Indebtedness"), i.a. the following documents
have been executed:
(i) first priority Liberian mortgages (hereinafter called the "First
Mortgages"), in favour of the First Mortgagee (on behalf of the
First Banks) registered against each of the Vessels;
(ii) first priority deeds of assignment dated 31 May 2001 between
each of the Owning Companies and the First Mortgagee (on behalf
of the First Banks) (the "First Deeds of Assignment") in respect
of i.a. each of the Owning Companies' present and future
interest under:
(a) the earnings of the relevant Vessel payable to the
relevant Owning Company,
(b) the insurance proceeds in respect of all insurances for
the relevant Vessel and all other amounts payable to the
relevant Owning Company in relation to the relevant
Vessel;
Page 129
(c) the charters of the Vessels from time to time; and
(d) requisition compensation as defined in the First
Agreement,
(iii) a first priority bank account pledges and assignments dated 31
May 2001 between the Borrower and the First Mortgagee (on behalf
of the First Banks) (the "First Pledge of Accounts");
(iv) first priority share pledges dated 31 May 2001between the
Borrower and the First Mortgagee (on behalf of the First Banks)
under which the Borrower has pledged all of its shares in each
of the Owning Companies, Oxbow and Golar Maritime (the "First
Pledge of Shares"); and
(v) a guarantee issued by the Owning Companies, Oxbow and Golar
Maritime dated 31 May 2001 in favour of the First Mortgagee as
security for the Borrower's obligations under the First
Agreement (the "First Guarantee").
The First Mortgages, the First Deeds of Assignment, the First Pledge of
Accounts, the First Guarantee and the First Pledge of Shares are
hereinafter called the "First Securities" as the same may have been and
may hereafter from time to time be amended.
(C) Pursuant to, and subject to a second priority credit agreement dated 11
October 2002 (the "Second Agreement") entered into by and between among
others the Borrower and the Second Mortgagee as agent on behalf of a
syndicate of banks (the "Second Banks"), the Second Banks have agreed to
make available to the Borrower a second priority loan of up to USD
60,000,000 (the "Second Facility").
As security for the Second Facility and all other sums owing to the
Second Banks under the Second Agreement and the Second Securities (as
defined below) (together the "Second Indebtedness"), i.a. the following
documents will be executed:
(i) second priority Liberian mortgages (hereinafter called the
"Second Mortgages"), in favour of the Second Mortgagee (on
behalf of the Second Banks) registered against each of the
Vessels;
(ii) second priority deeds of assignment dated [ ] between each of
the Owning Companies and the Second Mortgagee (on behalf of the
Second Banks) (the "Second Deeds of Assignment") in respect of
i.a. each of the Owning Companies' present and future interest
under:
(a) the earnings of the relevant Vessel payable to the
relevant Owning Company,
(b) the insurance proceeds in respect of all insurances for
the relevant Vessel and all other amounts payable to the
relevant Owning Company in relation to the relevant
Vessel;
Page 130
(c) the charters of the Vessels from time to time; and
(d) requisition compensation as defined in the Second Deeds
of Assignment,
(iii) a second priority bank account pledge dated [ ] between the
Borrower and the Second Mortgagee (on behalf of the Second
Banks) (the "Second Pledge of Accounts");
(iv) second priority share pledges dated [ ] October 2002 between the
Borrower and the Second Mortgagee (on behalf of the Second
Banks) under which the Borrower has pledged all of its shares in
each of the Owning Companies, Oxbow and Golar Maritime (the
"Second Pledge of Shares");
(v) a guarantee issued by the Owning Companies, Oxbow and Golar
Maritime dated [ ] October 2002 in favour of the Second
Mortgagee as security for the Borrower's obligations under the
Second Agreement (the "Second Guarantee"); and
(vi) first priority share pledge dated [ ] October 2002 between the
Parent and the Second Mortgagee (on behalf of the Second Banks)
under which the Parent has pledged all of its shares in the
Borrower (the "Pledge of Borrower Shares").
The Second Mortgages, the Second Deeds of Assignment, the Second Pledge
of Accounts, the Second Pledge of Shares, the Pledge of Borrower Shares
and the Second Guarantee are hereinafter called the "Second Securities"
as the same may have been and may hereafter from time to time be
amended.
(D) This Agreement sets out (inter alia) the terms and conditions upon and
subject to which the First Mortgagee consents to the Borrower granting
in favour of the Second Mortgagee the Second Securities.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1 Consent of the First Mortgagee
Subject to the terms and conditions of this Agreement, the First
Mortgagee (on behalf of the First Banks) hereby consents to the
execution and registration (where relevant) of the Second Securities.
The First Mortgagee agrees on behalf of itself and the First Banks that
nothing contained in this Agreement, the First Agreement or the Second
Agreement shall oblige the Second Mortgagee to monitor or otherwise be
responsible for the Borrower's performance of its obligations under the
First Agreement and the First Securities.
The First Mortgagee agrees that so long as the First Pledge of Shares
shall remain in full force and effect, the First Mortgagee shall,
subject to the rights of the First Banks, hold the share certificates
for the Second Mortgagee, as security agent for the Second Banks under
the Second Pledge of Shares, and that upon release from the First Pledge
of Shares, the First Mortgagee shall deliver the share certificates to
the Second Mortgagee.
Page 131
The First Mortgagee (as security agent for the First Banks) upon the
request of the Borrower and in consideration of the Second Mortgagee
agreeing and undertaking in the manner hereinafter contained hereby
consents to the granting by the Borrower in favour of the Second
Mortgagee and the execution and registration (as the case may be) of the
Second Securities.
2 The First Mortgagee's undertakings
The First Mortgagee (on behalf of the First Banks) hereby agrees and
undertakes with the Second Mortgagee that it will notify the Second
Mortgagee as soon as practicable if it intends to enforce any of its
rights or powers under the First Securities (other than its right to
demand payment of any monies secured thereby) whereupon the Second
Mortgagee shall have the option (to be exercised within 15 Norwegian
banking days from receipt of such notification during which period the
First Mortgagee will not complete enforcement of any of its said rights
and powers, unless, in the case of emergency, the Second Mortgagee
agrees to any such enforcement, such consent not to be unreasonably
withheld) of paying to the First Mortgagee within the said period of 15
Norwegian banking days all monies then secured by the First Securities
against an assignment and transfer of the First Securities that may be
transferable to and at the expense of the Second Mortgagee such transfer
to the Second Mortgagee to be by way of transfer certificates issued
pursuant to clause 15 of the First Agreement in respect of all of the
rights and obligations of the First Banks under the First Agreement in
their capacity as First Banks and any related documents (including the
First Agreement, the First Securities and this Agreement) evidencing or
regulating or securing any moneys so due by way of documentation in a
form and substance reasonably satisfactory to the Second Mortgagee but
on a non-recourse basis and without any express or implied warranty or
representation by the First Banks as to the validity or enforceability
of the First Agreement and/or the First Securities and/or such related
documents or as to the recoverability of any moneys thereunder). The
First Mortgagee shall not be liable to the Second Mortgagee for any
failure or delay in giving notice of its intention to enforce and shall
not be liable to the Second Mortgagee in respect of any loss, damage or
liability incurred by the Second Mortgagee arising out of or in
connection with the First Mortgagee's failure or delay in giving such
notice.
Without prejudice to this Clause 2, nothing herein shall preclude the
right of the First Mortgagee to demand payment of any money secured by
the First Securities or preclude the First Mortgagee from taking any
action whatsoever in accordance with the First Securities.
The First Mortgagee is not responsible for the due performance by the
other First Banks of the obligations undertaken on their behalf in this
Agreement and no First Bank shall be liable to the Second Mortgagee for
any failure on the part of another First Bank to perform the said
obligations.
3 The Second Mortgagee's undertakings
In consideration of the agreement herein contained, the Second Mortgagee
(on behalf of the Second Banks) hereby agrees and undertakes that:
a) the security constituted or to be constituted by the Second
Securities shall in all respects be subordinated to and rank in
priority subsequent to the security constituted or to be
constituted by the First Securities;
b) the Second Securities shall not be applied as security for
loans, facilities or contracts other than the Second Facility,
and shall never exceed USD 60,000,000, plus interest and cost
and expenses as provided for in the Second Agreement;
Page 132
c) at the same time as giving any formal notice to the Borrower
that an Event of Default (as defined in the Second Agreement)
has occurred, notify the First Mortgagee thereof;
d) in the event that the First Mortgagee declares an event of
default under the First Agreement and following receipt by the
Second Mortgagee of notice from the First Mortgagee pursuant to
Clause 2, any monies received thereafter by the Second Mortgagee
under the Second Securities, shall forthwith be paid to the
First Mortgagee until all sums due under the First Facilities
and/or the First Securities have been fully paid;
e) it will not make or allow to be made any material variation,
amendment or supplement to any of the Second Securities or agree
to or make any accelerations in the repayment schedule under the
Second Agreement unless the funds used for such accelerated
repayment derive from funds generated outside the Borrower and
Subsidiaries (including Oxbow and Golar Maritime), without the
previous written consent of the First Mortgagee;
f) it shall not assign, transfer or otherwise dispose of its rights
or obligations under any of the Second Securities to any other
party whatsoever unless such party has first entered into an
agreement with the First Mortgagee in form and substance
satisfactory to the First Mortgagee;
g) it will not take any action to enforce any claim or seek to
exercise any of its rights under the Second Securities or give
any notice of redirection to the Charterers (as defined in the
Second Deeds of Assignment) or Insurers (as defined in the
Second Agreement) under the notices of assignment pursuant to
the Second Deeds of Assignment, unless either (1) all monies due
or to become due to the First Mortgagee and the First Banks
(including all accrued interest and other monies) under the
terms of the First Agreement and/or the First Securities, have
been paid in full to the First Mortgagee or (2) the First
Mortgagee shall have given its prior written consent thereto
(which consent the First Mortgagee (acting on the instructions
of the First Banks) shall have full liberty to withhold);
h) without prejudice to its obligations under Clause 2, the First
Mortgagee may enforce and make any claims or exercise any rights
granted to it under the First Securities or exercise any rights
which it has or may have at law or otherwise against the
Borrower, the Owning Companies or any of the Vessels or any part
thereof without prior consultations with the Second Mortgagee;
Page 133
i) in the event that the First Mortgagee shall exercise the rights
and powers granted to it pursuant to the First Agreement and/or
the First Securities and hereunder decide to sell any of the
Vessels, whether by forced auction, or private treaty in its
capacity as mortgagee thereof or as attorney in-fact for the
Borrower, then the First Mortgagee shall notify the Second
Mortgagee under the terms of Clause 2 whereupon the option
referred to in Clause 2 shall apply. If said option is not
exercised by the Second Mortgagee, the Second Mortgagee shall
take all such actions as may be deemed necessary to consent to
and ratify and confirm such sale and, whether or not the
proceeds of such sale shall or will be sufficient after
application thereof by the First Mortgagee in discharge of the
First Indebtedness to discharge all sums owing to the Second
Mortgagee, the Second Mortgagee shall co-operate fully with the
First Mortgagee for the purpose of effecting such sale and, in
particular, but without limitation, the Second Mortgagee shall
forthwith upon each request of the First Mortgagee execute such
discharges and/or reassignments as may be necessary to complete
the sale of any of the Vessels free of any mortgage, charge,
assignment or other encumbrances created by or pursuant to the
Second Securities, provided that the First Mortgagee shall use
its best endeavours to ensure that such discharges are effected
in such manner as shall preserve the Second Mortgagee's right to
recover any remaining proceeds of such sale following payment to
the First Mortgagee of the sums secured by the First Securities;
and
j) it has not entered into and will not during the subsistence of
the security constituted under the First Securities knowingly
enter into any arrangement in respect of the Second Securities
or any transactions related thereto or contemplated thereby with
the Borrower and/or the Owning Companies and/or Oxbow and/or
Golar Maritime whereby the First Mortgagee and its security is
or will be prejudiced and, without prejudice to the generality
of the foregoing, the Second Mortgagee will not serve, or permit
there to be served, any notice of assignment contained in any of
the Second Securities unless the form of such notice states that
such assignment is subject and subordinate to the prior
assignments contained in the First Securities.
PROVIDED HOWEVER that nothing herein shall preclude the rights of the
Second Mortgagee to demand and/or receive payment of any monies secured
by the Second Securities or performance of other obligations set out
therein or in the Second Agreement or take necessary action with a view
to substantiating, preserving or protecting the Second Mortgagee's
interest, always as long as such action does not interfere with the
explicit rights of the First Mortgagee.
Page 134
4 Xxxxxxxx's undertakings
The Borrower hereby acknowledges that the First Mortgagee has entered
into this Agreement at the request of the Borrower and the Second
Mortgagee and accordingly the Borrower consents to all of the terms
hereof and their implementation and undertakes to the First Mortgagee to
do all such things and execute all such documents whatsoever as the
First Mortgagee may reasonably require from time to time in order to
implement such terms.
5 Variations to the First Agreement and/or First Securities
The First Banks may at any time and from time to time agree with the
Borrower or any other party variations, amendments or supplements to the
First Agreement and/or any of the First Securities without prior
consultation with the Second Mortgagee, save for any increase in the
amount of the First Facility which shall be subject to the prior written
approval of the Second Mortgagee. Any and all documents executed
pursuant to, or to implement, such variations, amendments or supplements
shall from and after execution be deemed for the purpose of this
Agreement to be an integral part of the First Securities and shall rank
in priority to the relevant Second Securities and the Second Mortgagee
shall enter into such documents with the First Mortgagee and/or the
First Banks as the First Mortgagee may require to maintain or confer
such priority.
6 Application of monies
a) On completion of sale, either by forced auction or private
treaty, the sale proceeds of any of the Vessels shall be applied
as follows and in the order mentioned:
(i) First: in respect of all costs and expenses whatsoever
incurred in or about and incidental to the said sale.
(ii) Second: in or towards satisfaction of all prior claims
(being any claims, liabilities or debts owed and taking
priority in respect of such proceeds over the security
constituted by the First Securities and the Second
Securities) secured on the relevant Vessel.
(iii) Third: in or towards payment of all sums secured by the
First Securities.
(iv) Fourth: in or towards payment of all sums secured by the
Second Securities.
(v) Fifth: the balance, if any, shall be paid to the
Borrower and/or to whomsoever shall be entitled thereto.
b) Any amount received by the First Mortgagee under any of the
First Securities shall be applied against any amounts
outstanding under any obligations secured by the First
Securities in accordance with the provisions of the First
Securities.
Subject to the Borrower being in default under the Second
Agreement, the balance, if any, shall be paid to the Second
Mortgagee and be applied against the amount outstanding under
the Second Facility at the time of default.
The balance, if any, shall be paid to the Borrower, and/or to
whomsoever shall be entitled hereto.
7 Notices
All notices or other communications under the Agreement shall be in
writing and shall be deemed to be duly given or made and received when
delivered (in the case of personal delivery or letter) and when
despatched (in the case of facsimile or other electronic communication)
to such party addressed to it at the address appearing below (or at such
address as such party may hereafter notify to the other) -
a) To the Borrower: c/o Golar Management Limited, 00 Xxxxx Xxxx,
Xxxxxx X00 0XX, Xxxxxx Xxxxxxx, telefax number + 44 20 7517 8601
Page 135
b) To the First Mortgagee: Den norske Bank ASA, Stranden 21, 0021
Oslo, Norway, telefax number + 47 22 48 28 94
c) To the Second Mortgagee: Nordea Bank Norge ASA, P.O. Box 1166
Sentrum, 0107 Oslo, Norway, telefax number + 47 22 49 66 68
A written notice includes a notice by facsimile, or other means of
communication in permanent written form. A notice or other communication
received on a non-working day or after business hours in the place of
receipt shall be deemed to be served and received on the next following
working day in such place.
8 Costs and expenses
The Borrower hereby agrees to pay to each of the First Mortgagee or the
Second Mortgagee (a "Mortgagee") on demand all costs and expenses
(including legal and out-of- pocket expenses) from time to time incurred
by either Mortgagee (or the First Banks or the Second Banks) in
connection with negotiation, preparation, execution, completion,
enforcement, attempted enforcement and performance of, or preservation
of any rights under this Agreement, together with interest at the
default rate referred to in clause 3.4 of the First Agreement or clause
7.4 of the Second Agreement (as the case may be) from the date on which
such expenses were incurred to the date of payment (as well after as
before judgment).
9 Effect of this Agreement
9.1 Preservation of security
Nothing contained in this Agreement shall as between the Borrower and
the First Mortgagee and the Borrower and the Second Mortgagee affect or
prejudice any rights, power or remedies of the First Banks or the Second
Banks respectively under their First and Second Securities which shall
remain in full force and effect according to their tenor as effective
securities for all money obligations and liabilities therein mentioned
without limit subject to the ranking of the securities as herein
provided.
9.2 No enquiry
No purchaser dealing with a Mortgagee or any receiver appointed by any
Mortgagee shall be concerned in any way with the provisions of this
Agreement but may assume that such Mortgagee or any such receiver as the
case may be is acting in accordance with the provisions of this
Agreement.
9.3 Waivers, etc.
Each Mortgagee shall be entitled without reference to another Mortgagee
to grant time or indulgence and to release compound or otherwise deal
with or receive moneys from any person liable or to deal with exchange
release modify or abstain from perfecting or enforcing any of the rights
which it may now or hereafter have against the Borrower or otherwise
without prejudicing its rights under this Agreement.
9.4 Duration
This Agreement shall remain in full force and effect until either full
and irrevocable payment and discharge of both the First Indebtedness and
the Second Indebtedness or final discharge and release and reassignment
of the security constituted by the Second Securities.
10 Counterparts
This Agreement may be entered into in the form of two or more
counterparts, each executed by one or more of the parties and, provided
all the parties shall so execute this Agreement, each of the executed
counterparts when duly exchanged or delivered, shall be deemed to be an
original but, taken together, they shall constitute one instrument.
Page 136
11 Severability of provisions
Each of the provisions in this Agreement are severable and distinct from
the others, and if at any time one or more of such provisions is or
becomes invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not
in any way be affected or impaired thereby.
12 Jurisdiction
For the benefit of the Second Mortgagee and each Second Bank, the
Borrower and the First Mortgagee agree that only the courts of Norway
shall have jurisdiction to settle any disputes in connection with this
Agreement and accordingly submits to the non-exclusive jurisdiction of
Oslo tingrett. Nothing in this Clause 12 shall limit the right of the
Second Mortgagee or any Second Bank to start proceedings against the
Borrower or the First Mortgagee in any other court of competent
jurisdiction.
13 Governing law
This Agreement shall be governed by Norwegian law.
14 Service of process
Without prejudice to any other mode of service, the Borrower:
a) irrevocably appoints Frontline Management AS as its agents for
service of process relating to any proceedings before the
Norwegian courts in connection with this Agreement;
b) agrees that failure by its process agent to notify them of the
process will not invalidate the proceedings concerned; and
c) consents to the service of process to any such proceedings
before the Norwegian courts by posting of a copy of the process
to Frontline Management AS, Bryggegt. 3, P.O. Box 1327 Vika.
0112 Oslo, Norway.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed and delivered the day and the year first above written.
The Borrower:
GOLAR GAS HOLDING COMPANY, INC.
By:
Name:
Title:
The First Mortgagee:
--------------------
DEN NORSKE BANK ASA
By:
Name:
Title:
The Second Mortgagee:
---------------------
NORDEA BANK NORGE ASA
By:
Name:
Title:
Page 137
SIGNATORIES
The Borrower:
-------------
GOLAR GAS HOLDING COMPANY, INC.
By:
Name:
Title:
The Agent:
----------
NORDEA BANK NORGE ASA
By:
Name:
Title:
The Banks:
----------
NORDEA BANK NORGE ASA
By:
Name:
Title:
DEN NORSKE BANK ASA
By:
Name:
Title:
FORTIS BANK (NEDERLAND) N.V.
By:
Name:
Title:
The Arrangers:
--------------
NORDEA BANK NORGE ASA
By:
Name:
Title:
DEN NORSKE BANK ASA
By:
Name:
Title:
FORTIS BANK (NEDERLAND) N.V.
C
By:
Name:
Title:
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