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8-K - FORM 8-K - BUCKEYE PARTNERS, L.P.h78556e8vk.htm
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EX-99.1 - EX-99.1 - BUCKEYE PARTNERS, L.P.h78556exv99w1.htm
EX-99.3 - EX-99.3 - BUCKEYE PARTNERS, L.P.h78556exv99w3.htm
Table of Contents

Exhibit 99.2
FR Borco Topco, L.P. and Subsidiaries
Condensed Consolidated Financial Statements
For the Nine Months Ended September 30, 2010 and 2009

 


 

FR Borco Topco, L.P. and Subsidiaries
Condensed Consolidated Financial Statements
For the Nine Months Ended September 30, 2010 and 2009
Contents

 


Table of Contents

FR Borco Topco, L.P. and Subsidiaries
Condensed Consolidated Balance Sheets
(In Thousands)
(Unaudited)
                 
    September 30,   December 31,
    2010   2009
     
Assets
               
Current assets:
               
Cash and cash equivalents
  $ 39,775     $ 45,110  
Accounts receivable, net of allowance of $3,895 and $4,173 as of September 30, 2010 and December 31, 2009, respectively
    2,091       4,281  
Related party receivables
    115       1,059  
Inventories
    1,709       1,700  
Other current assets
    6,126       3,157  
     
Total current assets
    49,816       55,307  
 
               
Non-current assets:
               
Property, plant, and equipment, net of accumulated depreciation of $48,653 and $32,314 as of September 30, 2010 and December 31, 2009, respectively
    533,780       518,385  
Goodwill
    141,346       141,346  
Other intangible assets, net
    254,730       264,714  
Related party receivables
    1,104       896  
Other assets
    10,322       10,971  
     
Total assets
  $ 991,098     $ 991,619  
     
 
               
Liabilities and partners’ equity
               
Current liabilities:
               
Bank overdrafts
  $     $ 4,109  
Trade and other payables
    14,272       17,200  
Derivatives
    19,162       12,936  
Accrued expenses and other liabilities
    13,588       5,036  
Current portion of long-term debt
          15,000  
     
Total current liabilities
    47,022       54,281  
 
               
Non-current liabilities:
               
Other liabilities
    4,000       4,000  
Long-term debt, less current portion
    299,927       330,000  
     
Total liabilities
    350,949       388,281  
 
               
Partners’ equity:
               
Partners’ capital
    456,760       456,747  
Retained earnings
    55,371       25,932  
     
Total equity attributable to FR Borco Topco, L.P.
    512,131       482,679  
Non-controlling interest
    128,018       120,659  
     
Total partners’ equity
    640,149       603,338  
     
Commitments and contingencies (Note 11)
               
Total liabilities and partners’ equity
  $ 991,098     $ 991,619  
     
The accompanying notes are an integral part of these condensed consolidated financial statements.

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Table of Contents

FR Borco Topco, L.P. and Subsidiaries
Condensed Consolidated Statements of Operations
(In Thousands)
(Unaudited)
                 
    Nine Months Ended September 30,
    2010   2009
     
Operating revenue:
               
Rental fees
  $ 108,577     $ 82,637  
Berthing fees
    15,986       13,441  
Other ancillary services
    10,728       8,930  
     
Total operating revenues
    135,291       105,008  
 
               
Operating costs and expenses:
               
Repairs and maintenance
    8,942       7,802  
Payroll costs and employee benefits
    14,520       14,391  
Amortization
    9,984       9,984  
Depreciation
    18,426       15,474  
Fuel expenses
    3,663       3,298  
General and administrative
    9,669       7,635  
Insurance
    4,825       4,499  
Loss on disposal of operating assets
    7,393       11,525  
Gain on settlement of insurance claim
    (3,837 )      
Lease expenses
    4,854       6,820  
     
Total operating expenses
    78,439       81,428  
 
               
Operating income
    56,852       23,580  
 
               
Other income (expenses):
               
Interest income
    309       56  
Interest expense
    (14,324 )     (13,498 )
Change in fair value of derivatives
    (6,226 )     3,976  
Other
    186       2,439  
     
Total other expenses
    (20,055 )     (7,027 )
 
               
Net income
  $ 36,797     $ 16,553  
 
               
Net income attributable to noncontrolling interests
    7,359       3,310  
     
Net income attributable to controlling interests
  $ 29,438     $ 13,243  
     
The accompanying notes are an integral part of these condensed consolidated financial statements.

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Table of Contents

FR Borco Topco, L.P. and Subsidiaries
Condensed Consolidated Statements of Cash Flows
(In Thousands)
(Unaudited)
                 
    Nine Months Ended
    September 30,
    2010   2009
     
Operating activities
               
Net income
  $ 36,797     $ 16,553  
Adjustments to reconcile net income to net cash provided by operating activities:
               
Depreciation
    18,426       15,474  
Amortization of intangible assets
    9,984       9,984  
Amortization of deferred financing cost
    2,194       1,644  
Loss on disposal of operating assets
    7,393       11,525  
Provision for allowance for doubtful accounts
    (278 )     (291 )
Gain on settlement of insurance claim
    (3,837 )      
Change in fair value of derivatives
    6,226       (3,976 )
Changes in operating assets and liabilities:
               
Receivables
    3,204       288  
Inventories
    (9 )     936  
Other current assets
    (2,969 )     801  
Trade and other payables
    (466 )     8,333  
Accrued expenses and other liabilities
    8,552       (5,484 )
Non-current operating assets
    (1,545 )     26  
     
Net cash provided by operating activities
    83,672       55,813  
     
 
               
Investing activities
               
Purchases of property, plant, and equipment
    (43,674 )     (79,679 )
Proceeds from escrow account
          25,600  
Insurance recoveries
    3,837        
     
Net cash used in investing activities
    (39,837 )     (54,079 )
     
 
               
Financing activities
               
Bank overdrafts decrease
    (4,109 )     (61 )
Borrowings under working capital facility
          15,000  
Payments on term loan
    (45,073 )      
Equity contributions
    12        
     
Net cash provided by financing activities
    (49,170 )     14,939  
     
 
               
Net increase (decrease) in cash and cash equivalents
    (5,335 )     16,673  
Cash and cash equivalents at beginning of period
    45,110       26,599  
     
Cash and cash equivalents at end of period
  $ 39,775     $ 43,272  
     
 
               
Supplemental disclosure
               
Cash paid for interest (net of amounts capitalized)
  $ 15,431     $ 18,423  
Cash paid for income taxes
           
Property, plant and equipment expenditures included in accounts payable
    4,321       4,160  
The balance of property, plant and equipment expenditures included in accounts payable as of December 31, 2009 and 2008 was $6.8 million and $0.0 million, respectively.
The accompanying notes are an integral part of these condensed consolidated financial statements.

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Table of Contents

FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements
For the Nine Months Ended September 30, 2010 and 2009
(Unaudited)
1. Description of the Business and Basis of Presentation
FR Borco Topco, L.P. (the “Company”) was registered on February 7, 2008 and is domiciled in the Cayman Islands. The Company and its subsidiaries (collectively the “Group”) are the owner and operator of an oil storage and transshipment terminal, with fuel blending and marine facilities, in Freeport, Bahamas.
The Company is an exempted limited partnership, with FR Borco GP Limited as the general partner and FR XI Offshore AIV LP as the limited partner.
The Company holds the general partner interest and 80% of the limited partner interest in FR Borco Coop Holdings, L.P. which is consolidated into the Group. Vopak Bahamas B.V. (“Vopak”) holds the remaining limited partner interest in FR Borco Coop Holdings, L.P. and is presented as a non-controlling interest in the Group.
Propernyn N.V (“Propernyn”), which at the time of acquisition was the parent of the operating company (“Baproven”), was acquired on April 29, 2008 and its results are therefore consolidated within the Group as of this date.
The accompanying condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“US GAAP”) for interim financial information. Accordingly, they do not include all of the information and footnotes required by US GAAP for complete financial statements.
The interim condensed consolidated financial statements that accompany these notes were prepared in conformity with U.S. generally accepted accounting principles, consistent in all material respects with those applied in the Group’s annual financial statements for the year ended December 31, 2009.
The Group’s functional currency is the US Dollar.

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Table of Contents

FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
2. Summary of Significant Accounting Policies
A description of the Company’s significant accounting policies is included in the Group’s consolidated financial statements for the year ended December 31, 2009. The accompanying condensed consolidated financial statements should be read in conjunction with the Group’s consolidated financial statements for the year ended December 31, 2009 and notes thereto.
Concentration of Credit Risk
Financial instruments that potentially subject the Group to significant concentrations of credit risk consist principally of cash and cash equivalents, accounts receivable, and derivative financial instruments. The Group’s cash management and investment policies are in place to restrict placement of these instruments with only financial institutions evaluated as highly creditworthy.
With respect to accounts receivable, the Group establishes credit limits and performs ongoing evaluations of its customers, generally granting uncollateralized credit terms to its customers. In addition, customers must settle all outstanding balances prior to removing the products stored at the Group’s premises.
For the nine months ended September 30, 2010 and 2009, three customers accounted for approximately 65.0% and 51.4% of revenue, respectively. As of September 30, 2010, one customer accounted for 63.1% of the accounts receivable balance. As of December 31, 2009, one customer accounted for 87.0% of the accounts receivable balance.
Derivative Instruments
The sole purpose of the Group’s derivative instruments is to cover interest rate risk arising from financing activities. Derivative instruments are included on the consolidated balance sheet at fair value. The Group’s derivative instruments, as of September 30, 2010 and December 31, 2009, have not been designated and do not qualify as hedging instruments, and accordingly all changes in fair value of the derivatives that have not been settled are recognized in current earnings. Changes in the fair value of the derivative instruments are classified as operating activities in the consolidated statement of cash flows as a non-cash reconciling item. The Group does not enter into derivative financial instruments for trading purposes and is not a party to leveraged derivatives.

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Table of Contents

FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
2.   Summary of Significant Accounting Policies (continued)
Fair Value Measurements
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date.
US GAAP defines a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value as follows:
    Level 1 inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities that the Group has the ability to access at the measurement date.
 
    Level 2 inputs are inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly.
 
    Level 3 inputs are unobservable inputs for the asset or liability, for example the reporting entity’s own internal data based on the best information available in the circumstances.
The carrying amounts reported for cash, receivables, bank overdrafts, trade payables and accrued expenses approximate fair value.
The Group’s derivative instruments consist of interest rate swaps. The Group uses an income approach to valuing these contracts. Interest rate yield curves, the Group’s credit spread and the counterparty’s credit spread are significant inputs into the valuation models. These inputs are observable in active markets over the terms of the instruments the Group holds, and accordingly, the Group classifies its derivative assets and liabilities as Level 2. The following table sets forth the Group’s assets and liabilities that were measured at fair value on a recurring basis, by level within the fair value hierarchy (in thousands):
                         
    Quoted Prices in   Significant    
    Active Markets   Other   Significant
    for Identical   Observable   Unobservable
    Assets   Inputs   Inputs
    (Level 1)   (Level 2)   (Level 3)
     
Liabilities: interest rate contracts
                       
September 30, 2010
  $  —     $ 19,162     $  —  
December 31, 2009
          12,936        

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FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
2. Summary of Significant Accounting Policies (continued)
Employee Benefits
The Group’s pension and savings plans are defined contribution plans under which the Group pays fixed contributions into a separate entity and has no legal or constructive obligation to pay further amounts. Obligations for contributions to defined contribution pension and savings plans are recognized as an employee benefit expense in the consolidated statement of operations when they are due. Prepaid contributions are recognized as an asset to the extent that a cash refund or a reduction in future payments is available.
Defined Contribution Plan: The pension contribution paid by the Group for all of its permanent employees is between 3% and 6% of regular earnings, depending on years of service and classification of employee. The amount contributed under the defined contribution plan was $274 thousand and $277 thousand for the nine months ended September 30, 2010 and 2009, respectively.
Savings Plan: The Group contributes to the savings plan up to 12% of the employees’ regular earnings. The contribution is determined according to the period of employment, employees’ contribution to the plan and the gross salary. There are no restrictions placed on the amount that can be contributed by the employee. The amount contributed under the savings plan by the Group was $443 thousand and $447 thousand for the nine months ended September 30, 2010 and 2009, respectively.
New and Updated Accounting Standards
In January 2010, the FASB issued ASU No. 2010-06, Fair Value Measurements and Disclosures (Topic 820): Improving Disclosures about Fair Value Measurements. This ASU requires disclosure of: (i) separate fair value measurements for each class of assets and liabilities, (ii) significant transfers between level 1 and level 2 in the fair value hierarchy and the reasons for such transfers, (iii) gains and losses for the period and purchases, sales, issuances and settlements for Level 3 fair value measurements, (iv) transfers into and out of Level 3 of the hierarchy and the reasons for such transfers and (v) the valuation techniques applied and inputs used in determining Level 2 and Level 3 measurements for each class of assets and liabilities. This ASU was generally effective for interim and annual reporting periods beginning after December 15, 2009. The Group’s adoption of the applicable sections of this ASU did not have a material impact on its financial position, results of operations or cash flows. The requirements to disclose

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Table of Contents

FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
2. Summary of Significant Accounting Policies (continued)
separately purchases, sales, issuances and settlements in the Level 3 reconciliation are effective for fiscal years beginning after December 15, 2010 (and for interim periods within such years)and are not expected to have any impact on the Group’s financial position, results of operations or cash flows.
In December 2009, the FASB issued ASU No. 2009-17 Consolidations, Improvements to Financial Reporting by Enterprises involved with Variable Interest Entities (former FAS No. 167, Amendments to FASB Interpretation No. 46(R)). This ASU requires an enterprise to perform an analysis to determine when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. Under this standard, the determination of whether a reporting entity is required to consolidate another entity is based on, among other things, the other entity’s purpose and design and the reporting entity’s ability to direct the activities of the other entity that most significantly impact the other entity’s economic performance. The Group adopted this guidance as of January 1, 2010. The Group’s adoption did not have any impact on its financial position, results of operations or cash flows.
3. Related Party Transactions
Related party transactions not disclosed elsewhere in the consolidated financial statements are described below.
Vopak Bahamas B.V. (“Vopak”), who has a 20% non-controlling interest in the Group, acts as manager and operator of the terminal. Baproven has agreed to pay Vopak a management fee of $2.5 million per annum, adjusted annually for increases in the Consumer Price Index, to be paid on a quarterly basis in advance. In the event annual insurance expense as defined in the agreement entered into between Baproven and Vopak exceeds $6.0 million in the first three years, the annual management fee referred to above shall be reduced by the amount of such insurance excess not to exceed $1.0 million. The Group recognized management fee expense of $1.9 million for each of the nine months ended September 30, 2010 and 2009. The management fee expense is included in general and administrative expenses in the condensed consolidated statement of operations. The annual management fee has not been reduced by the amount of the insurance excess, if any, as the directors have not yet made a decision as to the types of insurance costs that will be included in the determination of the insurance excess amount.

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Table of Contents

FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
3. Related Party Transactions (continued)
Bahamas Oil Refining Company International Limited (“BORCO”), a subsidiary of Baproven, has agreed to pay Vopak an incentive fee following the fifth anniversary of the date of the business combination, April 29, 2008 (Effective Date), equivalent to 30% of the first $25.0 million of excess cash flow as defined in the relevant agreement and 50% of any excess cash flow over $25.0 million, provided that in no event shall such a payment exceed $15.0 million in the aggregate. Such payment shall be made no later than 120 days following the fifth anniversary from the Effective Date. To the extent that maintenance and capital expenditures are deferred or not made as contemplated, the relevant components used to determine this incentive fee shall be adjusted accordingly by the Board of Directors of one of Baproven’s shareholding entities.
In addition, Vopak is entitled to fees of up to $10.0 million to the extent that certain “greenfield” expansion is successfully completed within the budget set forth in the joint venture agreement and within five-years from the commencement of the greenfield effort. The ultimate amount of such fees is dependent upon the level of incremental storage volumes achieved relative to agreed upon thresholds. Such payment shall be made no later than 120 days following the completion of the time period provided for the greenfield expansion as per the agreement. The Group has not accrued any amounts related to the cash flow incentive and Greenfield expansion fees as management and the directors have concluded that there is insufficient information with which to make a reliable estimate of such fees as of September 30, 2010 and December 31, 2009 due to the early stages of the related development activities.
In addition, FR Borco Management Services LLC (“FRBMS”), a wholly owned subsidiary of the Group, was set up on October 14, 2009.
4. Related Party Receivables
The related party receivables are non-interest bearing. Loans may be granted to employees for up to six months of their salary and have a term of five years. Included in these employee receivables are receivables from directors and key management personnel amounting to $0.0 million and $0.8 million at September 30, 2010 and December 31, 2009, respectively.

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FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
5. Inventories
Inventories comprise the following (in thousands):
                 
    September 30,   December 31,
    2010   2009
     
 
               
Crude oil, fuel oil and related products
  $ 172     $ 690  
Materials and supplies
    1,537       1,010  
     
Total
  $ 1,709     $ 1,700  
     
Inventory is recorded at the lower of cost or market. Materials and supplies inventory was impaired by $0.2 million during the year ended December 31, 2009 for slow-moving and obsolete items. This expense was recorded in repairs and maintenance on the consolidated statements of operations. No impairment for these items was identified for the nine months ended September 30, 2010.
6. Other Current Assets
Other current assets comprise the following (in thousands):
                 
    September 30,   December 31,
    2010   2009
     
 
               
Prepayments
  $ 5,861     $ 2,952  
Term deposits
    198       174  
Returnable deposits
    67       31  
     
Total
  $ 6,126     $ 3,157  
     
The term deposits included in other assets have original maturities of more than three months and earn interest at fixed rates ranging from 0.25% to 3.50% per annum for the nine months ended September 30, 2010 and 0.75% to 3.50% per annum for the year ended December 31, 2009.

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FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
7. Goodwill and Intangible Assets
Goodwill
Goodwill represents the excess of the purchase price of the reporting unit over the carrying amount at the acquisition date. The changes in the carrying amount of goodwill are as follows (in thousands):
         
Balance as of December 31, 2009
  $ 141,346  
Goodwill acquired during the period
     
Impairment charges
     
 
     
Balance as of September 30, 2010
  $ 141,346  
 
     
Other Intangible Assets, Net
Other intangible assets, net consist of the following (in thousands):
                 
    September 30,   December 31,
    2010   2009
     
 
               
Customer relationships
  $ 141,300     $ 141,300  
Accumulated amortization
    (24,392 )     (16,822 )
     
Customer relationships, net
    116,908       124,478  
     
Concessions
    142,600       142,600  
Accumulated amortization
    (7,658 )     (5,281 )
     
Concessions, net
    134,942       137,319  
     
Favorable lease elements
    3,000       3,000  
Accumulated amortization
    (120 )     (83 )
     
Favorable lease elements, net
    2,880       2,917  
     
Total intangible assets, net
  $ 254,730     $ 264,714  
     
Estimated aggregate amortization expense for each of the next five years ending December 31, 2015 is $13.3 million.

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Table of Contents

FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
8. Accrued Expenses and Other Liabilities
Accrued expenses and other liabilities comprise the following (in thousands):
                 
    September 30,   December 31,
    2010   2009
     
 
               
Accrued expenses
  $ 10,978     $ 3,036  
Environmental remediation costs
    6,610       6,000  
Less: Long-term portions
    (4,000 )     (4,000 )
     
Total
  $ 13,588     $ 5,036  
     
The environmental remediation liability balance was $6.6 million and $6.0 million as of September 30, 2010 and December 31, 2009, respectively. Of these amounts, $2.6 million and $2.0 million were classified as current in accrued expenses and other liabilities as of September 30, 2010 and December 31, 2009, respectively. The remainder is classified as non-current other liabilities. The liability is principally related to expenditures required to implement a subsurface oil remediation program and disposal of radioactive material.
9. Long-Term Debt
On April 29, 2008, the Group entered into a Credit and Guaranty Agreement whereby the lenders have agreed to extend credit to the borrower in the aggregate amount of up to $417.0 million. Within this agreement the group company FR Borco Acquisition Holdings B.V. acts as guarantor.

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FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
9. Long-Term Debt (continued)
The loan agreement consists of the following (in thousands):
                 
    September 30,   December 31,
    2010   2009
Secured bank loan with principal amount not in excess of $325.0 million. This loan matures in April 2016. Interest on this loan is LIBOR + 2% margin (weighted average of 2.70% from January 1, 2009 to September 30, 2010)
  $ 284,927     $ 325,000  
Working capital facility loan with aggregate principal amount not in excess of $85.0 million. This loan matures in April 2016. Interest on $5 million of the total drawdown was based on the prime rate in 2009 (4.25%). For the remaining $15 million of the drawdown, interest is LIBOR + 2% margin (weighted average from 2009 draw date to September 30, 2010 of 2.29%)
    15,000       20,000  
     
 
    299,927       345,000  
Less: current portion
          (15,000 )
     
Total long-term debt
  $ 299,927     $ 330,000  
     
The fair value of the Group’s debt is determined by a valuation model which is based on a conventional discounted cash flow methodology and utilizes assumptions of current market pricing curves. These assumptions are observable in active markets over the terms of the facilities the Group holds. The estimated fair value of the debt was $307 million and $357 million as of September 30, 2010 and December 31, 2009, respectively. The carrying amount of the debt was $300 million and $345 million as of September 30, 2010 and December 31, 2009 respectively.
The Group pays a monthly commitment fee of 0.5% per annum on the unused balance of the working capital facility loan and debt service reserve. The total fees paid were $290 thousand and $347 thousand for the nine months ended September 30, 2010 and 2009, respectively. The fees are recognized within interest expense in the condensed consolidated statement of operations.
Outstanding indebtedness under the loan is secured by the assets of FR Borco Acquisition B.V. and its subsidiaries.

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FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
9. Long-Term Debt (continued)
The maximum amount outstanding of long-term debt for each of the years subsequent to September 30, 2010 is approximately as follows (in thousands):
         
December 31, 2010
  $ 310,000  
December 31, 2011
    280,000  
December 31, 2012
    250,000  
December 31, 2013
    210,000  
December 31, 2014
    165,000  
Thereafter
    115,000  
The Group is subject to several covenants in connection with the loan agreement. On an annual basis, the Group’s capital expenditure in an aggregate amount, is not permitted to exceed an amount based on a calculation specified in the contract. From June 30, 2009, the Group must also comply with the interest coverage ratio as detailed in the loan agreement. Additionally, in accordance with the agreement, the Group calculates excess cashflow on a semi-annual basis, and is required to make related payments within 45 days following the calculation dates (June 30 and December 31). As a result of excess cash flows calculated in accordance with the loan agreement, the Group made payments against the loan principal amounting to $40.1 million and $0.0 million in the nine months ended September 30, 2010 and the year ended December 31, 2009, respectively. The Group was in compliance with its covenants as of September 30, 2010 and December 31, 2009.
There is an additional debt service reserve with an available principal amount up to $7.0 million that has not been drawn upon as of September 30, 2010 or December 31, 2009. This loan matures in April 2011 and interest rate on this loan is LIBOR plus a 2% margin.
10. Derivative Instruments
In connection with the loan agreement dated April 29, 2008, a floating interest rate of LIBOR plus a margin of 2% will apply for the first five years, and thereafter the margin will increase to 2.25%.
The Group entered into interest rate swaps in 2008 with two banks in order to economically hedge the risk of changing LIBOR interest rates related to the $325 million floating rate bank loan and working capital facility. Under the interest swaps the Group paid 4.032% and 4.035% fixed rates (with a balance of $121.3 million and $121.9 million as of September 30, 2010 and

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FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
10. Derivative Instruments (continued)
December 31, 2009, respectively). As of September 30, 2010 and December 31, 2009, the aggregate notional amount of the interest rate swaps equaled 81% and 71%, respectively, of the $300 million and $345 million respective total outstanding floating rate loans. The interest rate swaps were not designated and do not qualify as hedging instruments for accounting purposes.
The effect of changes in market rates on interest rate swaps is recognized in net income. For the nine months ended September 30, 2010 and 2009, the Group recognized a loss of $6.2 million and a gain of $4.0 million, respectively included in other income (expenses) on the statement of operations.
11. Commitments and Contingencies
Capital Expenditure Commitments
As of September 30, 2010 and December 31, 2009, the Group had commitments for capital expenditure approximating $120.4 million and $10.0 million, respectively.
Lease Commitments
Rent expense, not including supplemental expenses such as mobilization charges and operational expenses, attributable to operating leases was $4.0 million and $3.5 million for the nine months ended September 30, 2010 and 2009, respectively. As of September 30, 2010, the Group was committed to the following minimum payments for the remainder of 2010 and annually thereafter, under significant operating leases (in thousands):
         
2010
  $ 1,183  
2011
    4,702  
2012
    4,711  
2013
    4,832  
2014
    3,317  
Thereafter
    52,272  
 
     
 
  $ 71,017  
 
     
The Group leases four tugboats from Smit Lloyd (Antillen) N.V. for a combined daily rate of approximately $7.0 thousand. The tugboat lease agreements are due to expire on September 30, 2014 with a 5-year renewal option.

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FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
11. Commitments and Contingencies (continued)
The Group leases approximately 300 acres of seabed from the Bahamas Government. The seabed lease payments are based on a fixed fee of $1.2 million per annum, plus a variable fee relating to activity at the terminal. The variable fee for the nine months ended September 30, 2010 and 2009 amounted to $0.5 million and $0.5 million, respectively. The seabed lease is due to expire on June 30, 2057. The terms of this lease are subject to renegotiation every three years.
The Group leases a barge from Smit Lloyd (Antillen) N.V. for a daily rate of $3.0 thousand. The lease agreement is due to expire on November 30, 2013 with a 5-year renewal option.
The Group has entered into capacity and storage leases as a lessor with remaining terms from approximately one to three years that are accounted for as operating-type leases. Future minimum payments to be received under these arrangements as of September 30, 2010, were as follows (in thousands):
         
2010
  $ 37,240  
2011
    126,856  
2012
    68,940  
2013
    32,568  
2014
     
Thereafter
     
 
     
 
  $ 265,604  
 
     
Litigation
The Group is involved in various legal proceedings and claims related to various matters. The Group’s operations reside in an immediate subsidiary of Baproven, and as a result, Baproven is a defendant in a number of the claims. Although the Group intends to vigorously defend these matters, the ultimate outcome of the actions cannot be predicted with certainty. The most significant matters relate to the demolition and dismantling of the oil refinery which has not been in service since 1985. Demolition was planned for 2005, however did not occur until 2010 due to various contract negotiations and resulting delays.

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FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
11. Commitments and Contingencies (continued)
(i)   Oriental Supreme Limited (“OSL”)
Baproven is a defendant in an action commenced by OSL against Baproven and Cleveland Wrecking Company Limited (“CWCL”) for the specific performance of an agreement, whereby OSL was due to remove the scrap metal from the demolished refinery after demolition by CWCL. It is alleged that Baproven prematurely terminated the agreement with OSL.
On July 15, 2008, the Court granted an injunction against Baproven and CWCL restraining them from proceeding with the demolition work that was the subject of the agreement with OSL. On July 25, 2008, however, the injunction was set aside.
OSL has failed to file and serve a Statement of Claim within the period allowed under the Rules of Court. The Group is of the opinion that the probability of any future loss is remote. Baproven is now preparing an application for the action to be dismissed. The Company is unable to estimate the amount or range of potential loss, if any, which might result if the outcome in this matter is unfavorable.
(ii)   CWCL
In 2008, CWCL asserted a claim against Baproven for compensation of additional costs of approximately $300 thousand allegedly caused by an injunction obtained by OSL that temporarily prevented CWCL from carrying out the demolition work (please refer to the note above). Formal legal proceedings have not been commenced by CWCL against Baproven with respect of this claim.
In the opinion of Baproven’s attorney, Baproven is not obligated to compensate CWCL for additional costs allegedly suffered by reason of the injunction obtained by OSL, and believes the probability of any future loss is remote. The Company intends to vigorously defend itself in this matter and is unable to estimate the amount or range of potential loss, if any which might result if the outcome in this matter is unfavorable.
Guarantees
In connection with the loan agreement, FR Borco Acquisition Holdings B.V. and FR Borco Acquisition B.V. entered into pledge and security agreements. For detailed information on the loan refer to Note 9.

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FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
11. Commitments and Contingencies (continued)
Baproven is contingently liable under customs bond guarantees of $90.0 thousand and also has available a corporate credit card facility of up to $20.0 thousand. The customs bond and credit card facilities totaling $110.0 thousand, both at September 30, 2010 and December 31, 2009, have been secured by pledging term deposit balances for those amounts. These restricted cash amounts are classified as other non-current assets.
Baproven guaranteed a loan granted to a former officer by a bank by pledging term deposit balances equal to the outstanding loan amounts. The balance of the former officer’s loan as of September 30, 2010 and December 31, 2009 was $6.0 thousand and $23.0 thousand, respectively. These restricted cash amounts are classified as other non-current assets.
Other
The Bahamas is a member of The International Oil Pollution Compensation Fund 1992 (“the Fund”), which is an organization that provides compensation and assistance in respect of oil pollution resulting from oil spills. Baproven is one of the contributors to the Fund. The amount of the contribution is determined based on the quantity of oil received by each contributor. The level of contributions varies from year to year, depending largely on the pollution incidents that have occurred and the amount of compensation and claim-related expenditure which the Fund expects to pay. The amount of contributions are usually determined and billed in the fourth quarter of every year. No amounts were contributed for the nine months ended September 30, 2010 and for the year ended December 31, 2009; however, the assessment for the year ended 2010 is $542 thousand, payable by March 2011.
The Group accrues legal costs expected to be incurred related to recognized loss contingencies.
12. Income Taxes
The Group operates primarily in four jurisdictions — The Cayman Islands, Bahamas, Netherlands, and United States. The Cayman Islands does not impose an income tax. In the Bahamas, the Group operates under the Bahamian tax regime which provides for an income tax exemption in the Bahamas. In the Netherlands, the Group historically generated losses and expects this to continue for the foreseeable future. While the losses do carryover for Dutch income tax purposes, under Dutch income tax law, these losses are available to offset only

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FR Borco Topco, L.P. and Subsidiaries
Notes to Condensed Consolidated Financial Statements (continued)
(Unaudited)
12. Income Taxes (continued)
certain types of taxable income of which the Group does not expect to generate any material amounts. FRBMS, a wholly owned subsidiary of the Group, is registered in Delaware, MD. For the nine months ended September 30, 2010, FRBMS had operations immaterial to the Group. The Group does not expect to receive any income tax benefit from the losses generated in the Netherlands and has provided a full valuation allowance against the resulting deferred tax assets. As a result, the Group has not recorded any income tax expense for the nine months ended September 30, 2010 or September 30, 2009 and has no current or deferred income tax assets or liabilities.
The effective income tax rate and the Cayman Islands’ statutory income tax rate for the Group was 0% in the nine months ended September 30, 2010 and September 30, 2009.
13. Subsequent Events
The Group has evaluated subsequent events from the balance sheet date through December 20, 2010, the date at which these condensed consolidated financial statements were available to be issued and determined there are no other items to disclose.

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