Exhibit 1.1
TEEKAY LNG PARTNERS L.P.
5,500,000 COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
Citigroup Global Markets Inc. ___________, 2005
UBS Securities LLC
X.X. Xxxxxxx & Sons, Inc.
Wachovia Capital Markets, LLC
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxxxx & Company, Inc.
Deutsche Bank Securities Inc.
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Teekay LNG Partners L.P., a limited partnership organized under the laws
of the Xxxxxxxx Islands (the "PARTNERSHIP"), proposes to issue and sell (the
"OFFERING") to the several underwriters named in Schedule I hereto (the
"UNDERWRITERS"), for whom you (the "REPRESENTATIVES") are acting as
representatives, 5,500,000 Common Units (the "FIRM UNITS"), each representing a
limited partner interest in the Partnership (the "COMMON UNITS"). The
Partnership also proposes to grant to the Underwriters an option to purchase up
to 825,000 additional Common Units to cover over-allotments (the "OPTION
UNITS"). The Firm Units and the Option Units, if purchased, are hereinafter
collectively called the "UNITS." To the extent there are no additional
Underwriters listed on Schedule I other than you, the term Representatives as
used herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires.
Certain terms used herein are defined in Section 18 hereof.
As part of the offering contemplated by this Agreement, Citigroup Global
Markets Inc. has agreed to reserve out of the Units set forth opposite its name
on Schedule I to this Agreement, up to 550,000 Common Units, for sale to parties
associated with the Partnership (collectively, "PARTICIPANTS"), as set forth in
the Prospectus under the heading "Underwriting" (the "DIRECTED UNIT PROGRAM").
The Common Units to be sold by Citigroup Global Markets Inc. pursuant to the
Directed Unit Program (the "DIRECTED UNITS") will be sold by Citigroup Global
Markets Inc. pursuant to this Agreement at the public offering price. Any
Directed Units not orally confirmed for purchase by any Participants by 8:00 AM
New York City time on the business day following the date on which this
Agreement is executed will be offered to the public by Citigroup Global Markets
Inc. as set forth in the Prospectus.
It is understood and agreed to by all parties that the Partnership was
formed by Teekay Shipping Corporation, a Xxxxxxxx Islands corporation ("TSC"),
to acquire, own and
operate substantially all of its assets and operations in the LNG shipping
sector and certain of its assets and operations in the crude oil shipping sector
(collectively, the "CONTRIBUTED BUSINESS"), as described more particularly in
the Prospectus. It is further understood and agreed by all parties that as of
the date hereof:
(i) as of the date hereof, TSC directly owns a 100% membership
interest in Teekay GP L.L.C., a Xxxxxxxx Islands limited liability company
(the "GENERAL PARTNER"), and a 98% limited partner interest in the
Partnership;
(ii) after giving effect to the Transactions (as defined below), the
Partnership will own a 100% membership interest in Teekay LNG Operating
L.L.C., a Xxxxxxxx Islands limited liability company (the "OPERATING
COMPANY");
(iii) after giving effect to the Transactions, the Operating Company
will own a 100% equity interest in each of Teekay Luxembourg S.a.r.l., a
Luxembourg company ("LUXCO"), and Granada Spirit L.L.C., a Xxxxxxxx
Islands limited liability company; and
(iv) after giving effect to the Transactions, Luxco will own,
directly or indirectly, 100% of the equity interest of the entities set
forth on Schedule II (together with Luxco, the "OPERATING SUBSIDIARIES").
The transactions described in the Contribution, Conveyance and Assumption
Agreement (the "CONTRIBUTION AGREEMENT") to be dated the Closing Date (as
defined in Section 3 hereof) among the Teekay Parties (as defined below) and
Teekay Shipping Spain, S.L., a Spanish company ("TEEKAY SPAIN") will have
occurred at or prior to the Closing Date (such transactions are collectively
referred to as the "TRANSACTIONS"). In connection with the Transactions, the
parties to the Transactions entered into various transfer agreements, bills of
sale, assignments, conveyances, contribution agreements and related documents
(collectively, and together with the Contribution Agreement the "CONTRIBUTION
DOCUMENTS").
The General Partner, the Partnership, the Operating Company and the
Operating Subsidiaries are hereinafter referred to collectively as the
"PARTNERSHIP ENTITIES." TSC, the General Partner, the Partnership and the
Operating Company are hereinafter referred to collectively as the "TEEKAY
PARTIES" and, together with the Operating Subsidiaries, the "TEEKAY ENTITIES."
This is to confirm the agreement among the Teekay Parties and the
Underwriters concerning the purchase of the Firm Units and the Option Units from
the Partnership by the Underwriters.
1. Representations, Warranties and Agreements of the Teekay Parties. Each
of the Teekay Parties, jointly and severally, represents and warrants to, and
agrees with, each Underwriter that:
(a) Registration. The Partnership has prepared and filed with the
Commission a registration statement (File number 333-120727) on Form F-1,
including a related preliminary prospectus, for registration under the Act of
the offering and sale of the Units. The Partnership
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may have filed one or more amendments thereto, including a related preliminary
prospectus, each of which has previously been furnished to you. The Partnership
will next file with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement, a further amendment to such
registration statement (including the form of final prospectus) or (2) after the
Effective Date of such registration statement, a final prospectus in accordance
with Rules 430A and 424(b). In the case of clause (2), the Partnership has
included in such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and the rules
thereunder to be included in such registration statement and the Prospectus. As
filed, such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Prospectus) as
the Partnership has advised you, prior to the Execution Time, will be included
or made therein.
(b) No Material Misstatements or Omissions. On the Effective Date, the
Registration Statement did or will, and when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date and on any date
on which Option Units are purchased hereunder, if such date is not the Closing
Date (an "OPTION CLOSING DATE"), the Prospectus (and any supplements thereto)
will, comply in all material respects with the applicable requirements of the
Act and the rules thereunder; on the Effective Date and at the Execution Time,
the Registration Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and, on the
Effective Date, the Prospectus, if not filed pursuant to Rule 424(b), will not,
and on the date of any filing pursuant to Rule 424(b) and on the Closing Date
and any Option Closing Date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading and the
statements made or to be made in such documents that are covered by Rule 175(b)
under the Act were made or will be made with a reasonable basis and in good
faith, provided, however, that the Teekay Parties make no representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Partnership by or on
behalf of any Underwriter through the Representatives specifically for inclusion
in the Registration Statement or the Prospectus (or any supplement thereto).
(c) Formation and Qualification. Each of the Teekay Entities has been duly
formed or incorporated and is validly existing as a limited partnership, limited
liability company or corporation, as the case may be, in good standing under the
laws of its respective jurisdiction of formation or incorporation, and is, or at
each Closing Date (as defined in Section 3 hereof) will be, duly registered or
qualified to do business and is, or at each Closing Date will be, in good
standing as a foreign limited liability company, limited partnership or
corporation, as the case may be, in each jurisdiction in which its ownership or
lease of property or the conduct of its businesses requires such registration or
qualification, except where the failure so to register or
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qualify would not (i) reasonably be expected to have a Material Adverse Effect
or (ii) subject the limited partners of the Partnership to any material
liability or disability. "MATERIAL ADVERSE EFFECT," as used throughout this
Agreement, means a material adverse effect on the condition (financial or
otherwise), results of operations, business, properties, assets or prospects of
the Partnership Entities, taken as a whole, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto). Each of
the Partnership Entities has all limited liability company, limited partnership
or corporate, as the case may be, power and authority necessary to own or lease
its properties currently owned or leased or to be owned or leased at each
Closing Date, to assume the liabilities assumed or being assumed by it pursuant
to the Contribution Documents and to conduct its business as currently conducted
and as to be conducted at each Closing Date, in each case in all material
respects as described in the Registration Statement and Prospectus.
(d) Ownership of General Partner Interest in the Partnership. At the
Closing Date and any Option Closing Date, after giving effect to the
Transactions, the General Partner will be the sole general partner of the
Partnership with a 2.0% general partner interest in the Partnership; such
general partner interest will be duly authorized and validly issued in
accordance with the partnership agreement of the Partnership (as the same may be
amended and restated on or prior to the Closing Date or any Option Closing Date,
the "PARTNERSHIP AGREEMENT"); and the General Partner will own such general
partner interest free and clear of all pledges, liens, encumbrances, security
interests, charges, equities or other claims (collectively, "LIENS") (except
restrictions on transferability contained in the Partnership Agreement, as
described in the Prospectus, or under applicable securities laws).
(e) Ownership of the Sponsor Units and Incentive Distribution Rights in
the Partnership. At the Closing Date and the Option Closing Date, after giving
effect to the Transactions, TSC will own 8,984,572 Common Units and 14,484,572
Subordinated Units (all such Common and Subordinated Units being collectively
referred to herein as the "SPONSOR UNITS"); and the General Partner will own
100% of the Incentive Distribution Rights (as defined in the Partnership
Agreement) (the "INCENTIVE DISTRIBUTION RIGHTS"). All of such Sponsor Units and
Incentive Distribution Rights and the limited partner interests represented
thereby will be duly authorized and validly issued in accordance with the
Partnership Agreement, and will be fully paid (to the extent required under the
Partnership Agreement) and nonassessable (except as described in the Prospectus
under the caption "The Partnership Agreement - Limited Liability"); and TSC and
the General Partner will own the Sponsor Units and the Incentive Distribution
Rights, respectively, free and clear of all Liens (except restrictions on
transferability contained in the Partnership Agreement, as described in the
Prospectus or under applicable securities laws).
(f) Valid Issuance of the Units. At the Closing Date or the Option Closing
Date, the Firm Units and the Option Units, as the case may be, and the limited
partner interests represented thereby will be duly authorized by the Partnership
Agreement and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly issued, fully paid
(to the extent required under the Partnership Agreement) and nonassessable
(except as described in the Prospectus under the caption "The Partnership
Agreement - Limited Liability"); and, other than the Sponsor Units and the
Incentive Distribution Rights, the Units will be the only limited partner
interests of the Partnership issued and outstanding at the Closing Date or the
Option Closing Date, other than any awards made to
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outside directors under the Partnership's 2005 Long-Term Incentive Plan, up to
an aggregate of 3,500 Units.
(g) Ownership of the General Partner. At the Closing Date and the Option
Closing Date, after giving effect to the Transactions: TSC will directly own a
100% membership interest in the General Partner; such membership interests will
be duly authorized and validly issued and will be fully paid (to the extent
required under the limited liability company agreement of the General Partner
(the "GENERAL PARTNER LLC AGREEMENT")) and nonassessable (except as such
nonassessability may be affected by Section 51 of the Xxxxxxxx Islands Limited
Liability Company Act); and TSC will own such membership interests free and
clear of all Liens.
(h) Ownership of the Operating Company. At the Closing Date and the Option
Closing Date, after giving effect to the Transactions, the Partnership will own
a 100% membership interest in the Operating Company; such membership interest
will be duly authorized and validly issued in accordance with the limited
liability company agreement of the Operating Company (as the same may be amended
and restated at or prior to the Closing Date or the Option Closing Date, the
"OPERATING COMPANY LLC AGREEMENT") and will be fully paid (to the extent
required under the Operating Company LLC Agreement) and nonassessable (except as
such nonassessability may be affected by Section 51 of the Xxxxxxxx Islands
Limited Liability Company Act); and the Partnership will own such membership
interest free and clear of all Liens except for Liens pursuant to the Credit
Agreement (as defined in Section 1(p)(vi) hereof).
(i) Ownership of the Operating Subsidiaries. At the Closing Date and the
Option Closing Date, after giving effect to the Transactions, the Operating
Company will own, directly or indirectly, 100% of the equity interests in each
of the Operating Subsidiaries; such equity interests will be duly authorized and
validly issued in accordance with the organization documents of each Operating
Subsidiary (as the same may be amended and restated at or prior to the Closing
Date, the "OPERATING SUBSIDIARIES' ORGANIZATIONAL DOCUMENTS") and will be fully
paid (to the extent required under the Operating Subsidiaries' Organizational
Agreements) and nonassessable (except as such nonassessability may be affected
by the applicable statutes of the jurisdiction of formation of the applicable
Operating Subsidiary); and the Operating Company will own such equity interests
free and clear of all Liens except for Liens described on Schedule VI.
(j) No Other Subsidiaries. Other than its 2.0% general partner interest in
the Partnership and the Incentive Distribution Rights, the General Partner does
not own, and at the Closing Date and the Option Closing Date, will not own,
directly or indirectly, any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture, association
or other entity. Other than (i) the Partnership's ownership of a 100% membership
interest in the Operating Company and (ii) the Operating Company's ownership
(directly or indirectly) of 100% of the equity interests in each of the
Operating Subsidiaries, neither the Partnership nor the Operating Company owns,
and at the Closing Date and the Option Closing Date, neither will own, directly
or indirectly, any equity or long-term debt securities of any corporation,
partnership, limited liability company, joint venture, association or other
entity.
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(k) No Preemptive Rights or Options. Except as described in the Prospectus
or herein, there are no preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any equity
interests of any of the Partnership Entities. Except as described in the
Prospectus, there are no outstanding options or warrants to purchase (i) any
Common Units, Subordinated Units, Incentive Distribution Rights or other
interests in the Partnership, (B) any membership interests in the General
Partner or the Operating Company, or (C) any equity interests in any Operating
Subsidiary.
(l) No Registration Rights. No holder of securities of any of the
Partnership Entities has rights to the registration of such securities under the
Registration Statement.
(m) Capitalization. As of December 31, 2004, the Partnership would have
had, on the consolidated pro forma basis indicated in the Prospectus (and any
amendment or supplement thereto), a capitalization as set forth therein.
(n) Authority and Authorization. The Partnership has all requisite limited
partnership power and authority to issue, sell and deliver (i) the Units, in
accordance with and upon the terms and conditions set forth in this Agreement,
the Partnership Agreement, the Registration Statement and the Prospectus and
(ii) the Sponsor Units and the Incentive Distribution Rights, in accordance with
the terms and conditions set forth in the Partnership Agreement and the
Contribution Documents. At the Closing Date and the Option Closing Date, all
corporate, partnership and limited liability company action, as the case may be,
required to be taken by the Teekay Entities or any of their stockholders,
partners or members for the authorization, issuance, sale and delivery of the
Units, the Sponsor Units and the Incentive Distribution Rights, the execution
and delivery by the Teekay Entities of the Operative Agreements (as defined in
the last paragraph of Section l(p) hereof) and the consummation of the
transactions (including the Transactions) contemplated by this Agreement and the
Operative Agreements to take place as of the Closing Date or the Option Closing
Date, as applicable, shall have been validly taken.
(o) Enforceability of this Agreement. This Agreement has been duly
authorized, validly executed and delivered by each of the Teekay Parties.
(p) Enforceability of Operative Agreements. On or before the Closing Date:
(i) the General Partner LLC Agreement will have been duly
authorized, executed and delivered by TSC;
(ii) the Partnership Agreement will have been duly authorized,
executed and delivered by the General Partner and TSC and will be a valid
and legally binding agreement of the General Partner and TSC, enforceable
against the General Partner and TSC in accordance with its terms;
(iii) the Operating Company LLC Agreement will have been duly
authorized, executed and delivered by the Partnership;
(iv) each of the Operating Subsidiaries' Organizational Documents
will have been duly authorized, executed and delivered by the appropriate
Partnership Entity;
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(v) the Omnibus Agreement to be dated the Closing Date among the
Teekay Parties (the "OMNIBUS AGREEMENT") will have been duly authorized,
executed and delivered by each of the Teekay Parties, and will be a valid
and legally binding agreement of each of them, enforceable against each of
them in accordance with its terms;
(vi) the Revolving Credit Facility dated February 22, 2001 among
Naviera Teekay Gas, S.L. ("Gas I") as Borrower, the Banks party thereto,
X.X. Xxxxxx Europe Limited, as Agent, X.X. Xxxxxx Bank S.A., as Spanish
Security Agent, and X.X. Xxxxxx plc and X.X. Xxxxxx Bank S.A., as
Arranger, as amended (the "CREDIT AGREEMENT"), will have been duly
authorized, executed and delivered by Gas I and, assuming the due
authorization, execution and delivery by the other parties thereto, will
be a valid and legally binding agreement of Gas I enforceable against it
in accordance with its terms;
(vii) each of the Contribution Documents will have been duly
authorized, executed and delivered by the parties thereto and will be a
valid and legally binding agreement of each of them, enforceable against
each of them in accordance with its terms;
(viii) the Administrative Services Agreement between the Partnership
and Teekay Shipping Limited, a Bahamas company and wholly owned subsidiary
of TSC ("TSL") (the "ADMINISTRATIVE SERVICES AGREEMENT") will have been
duly authorized, executed and delivered by each of them, and will be a
valid and legally binding agreement of each of them, enforceable against
each of them in accordance with its terms;
(ix) the Advisory, Technical and Administrative Services Agreement
between Teekay Spain and TSL (the "ATAS AGREEMENT") will have been duly
authorized, executed and delivered by each of them, and will be a valid
and legally binding agreement of each of them, enforceable against each of
them in accordance with its terms;
(x) the LNG Strategic Consulting and Advisory Services Agreement
between Teekay Spain and Teekay LNG Project Ltd. (the "LNG CONSULTING AND
ADVISORY AGREEMENT") will have been duly authorized, executed and
delivered by each of them, and will be a valid and legally binding
agreement of each of them, enforceable against each of them in accordance
with its terms;
(xi) The Joint Venture Agreement dated March 15, 2004 between Teekay
European Holdings S.a.r.l. (as the successor in interest to TSC) and X.
Xxxxxx Grupo de Sociedades e Inversiones, S.L., as amended by the
Amendment Agreement between Teekay European Holdings S.a.r.l. and X.
Xxxxxx Grupo de Sociedades e Inversiones, S.L. (the "AMENDED JOINT VENTURE
AGREEMENT"), has been or will have been duly authorized, executed and
delivered by Teekay European Holdings S.a,x.x. (or by TSC as its
predecessor in interest), and, assuming the due authorization, execution
and
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delivery by the other party thereto, will be a valid and legally binding
agreement of Teekay European Holdings S.a,r.l., enforceable against it in
accordance with its terms;
(xii) the Purchase Agreement between TSC and the Operating Company,
pursuant to which either (a) the Suezmax tanker, the Granada Spirit and
the related Time Charter Party between Granada Spirit L.L.C. and Teekay
Chartering Limited or (b) the membership interests in Granada Spirit
L.L.C., the company that owns the Granada Spirit and has rights under the
Time Charter Party, will be sold to TSC (the "GRANADA SPIRIT AGREEMENT")
will have been duly authorized, executed and delivered by each of them,
and will be a valid and legally binding agreement of each of them,
enforceable against each of them in accordance with its terms; and
(xiii) the Share Purchase Agreement between TSC and the Partnership
pursuant to which the Partnership or the Operating Company will acquire
all of the common shares of Teekay Nakilat Holdings Corporation (the
"RASGAS II PURCHASE AGREEMENT"), will have been duly authorized, executed
and delivered by each of them, and will be a valid and legally binding
agreement of each of them, enforceable against each of them in accordance
with its terms;
provided that, with respect to each agreement described in this Section 1(p),
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and, provided further, that the indemnity, contribution and exoneration
provisions contained in any of such agreements may be limited by applicable laws
and public policy.
The General Partner LLC Agreement, the Partnership Agreement, the
Operating Company LLC Agreement, the Operating Subsidiaries' Organizational
Documents, the Omnibus Agreement, the Credit Agreement, the Contribution
Documents, the Administrative Services Agreement, the ATAS Agreement, the LNG
Consulting and Advisory Agreement, the Amended Joint Venture Agreement, the
Granada Spirit Agreement and the RasGas II Purchase Agreement are herein
collectively referred to as the "OPERATIVE AGREEMENTS."
(q) Enforceability of Other Agreements. Each of the agreements listed on
Schedule III (collectively, the "OTHER AGREEMENTS") has been duly authorized,
executed and delivered by each of the parties thereto and is a valid and legally
binding agreement of each of them, enforceable against each of them in
accordance with its terms; provided that, with respect to each agreement
described in this Section 1(q), the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and, provided further, that the indemnity,
contribution and exoneration provisions contained in any of such agreements may
be limited by applicable laws and public policy.
(r) Sufficiency of Contribution Documents. The Contribution Documents were
or will be legally sufficient to transfer or convey to, or vest in, the
Partnership, the
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Operating Company and the Operating Subsidiaries satisfactory title to, or valid
rights to use or manage, all properties not already held by them that are,
individually or in the aggregate, required to enable the Partnership, the
Operating Company and the Operating Subsidiaries to conduct their operations (in
all material respects as contemplated by the Prospectus), subject to the
conditions, reservations and limitations contained in the Transaction Documents
and those set forth in the Prospectus. The Partnership, the Operating Company
and the Operating Subsidiaries, upon execution and delivery of the Contribution
Documents, succeeded or will succeed in all material respects to the business,
assets, properties, liabilities and operations of the Contributed Business as
disclosed in the Prospectus and the Contribution Documents.
(s) No Conflicts. None of the offering, issuance and sale by the
Partnership of the Units, the execution, delivery and performance of this
Agreement or the Operative Agreements by the Teekay Entities that are parties
hereto or thereto, or the consummation of the transactions contemplated hereby
and thereby (including the Transactions) (i) conflicts or will conflict with or
constitutes or will constitute a violation of any agreement of limited
partnership, limited liability company agreement, certificate of incorporation
or bylaws or other organizational documents of any of the Teekay Entities, (ii)
conflicts or will conflict with or constitutes or will constitute a breach or
violation of, or a default (or an event that, with notice or lapse of time or
both, would constitute such a default) under, any indenture, contract, mortgage,
deed of trust, note agreement, loan agreement, lease or other agreement, or
instrument to which any of the Teekay Entities is a party or by which any of
them or any of their respective properties may be bound, (iii) violates or will
violate any statute, law, rule, regulation, judgment, order or decree applicable
to any of the Teekay Entities of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction
over any of the Teekay Entities or any of their properties, or (iv) results or
will result in the creation or imposition of any Lien upon any property or
assets of any of the Partnership Entities (other than Liens referred to or
described in the Prospectus), which conflicts, breaches, violations, defaults or
Liens, in the case of clauses (ii), (iii) or (iv), could, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or could
materially impair the ability of any of the Teekay Entities to perform their
obligations under this Agreement, the Operative Agreements or the Other
Agreements.
(t) No Consents. Except for (i) the registration of the Units under the
Act, (ii) such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and applicable state securities or "Blue Sky" laws
in connection with the purchase and distribution of Units by the Underwriters,
(iii) such consents (as defined herein) that have been, or prior to the Closing
Date will be, obtained, (iv) such consents that, if not obtained, would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or could not reasonably be expected to materially impair the
ability of any of the Teekay Entities to perform their obligations under this
Agreement, the Operative Agreements or the Other Agreements, and (v) as
disclosed in the Prospectus, no permit, consent, approval, authorization, order,
registration, filing or qualification ("CONSENT") of or with any court,
governmental agency or body having jurisdiction over any of the Teekay Entities
or any of their respective properties is required in connection with the
offering, issuance and sale by the Partnership of the Units, the execution,
delivery and performance of this Agreement and the Operative Agreements by the
Teekay
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Entities parties hereto or thereto, or the consummation of the transactions
contemplated by this Agreement or the Operative Agreements (including the
Transactions).
(u) No Default. None of the Teekay Entities is (i) in violation of its
agreement of limited partnership, limited liability company agreement,
certificate of incorporation or bylaws or other organizational documents, (ii)
in breach of or in default under (and no event that, with notice or lapse of
time or both, would constitute such a default has occurred or is continuing
under) any term, covenant, obligation, agreement or condition contained in any
indenture, mortgage, deed of trust, note agreement, loan agreement, lease or
other agreement, obligation, condition, covenant or instrument to which it is a
party or by which it is or may be bound or to which any of its properties or
assets is subject or (iii) in violation of any statute, law, rule, regulation,
judgment, order or decree applicable to any of the Teekay Entities of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over any of the Teekay Entities or any of their
properties, which breach, default or violation, in the case of clause (ii) or
(iii), would, if continued, reasonably be expected to have a Material Adverse
Effect, or could reasonably be expected to materially impair the ability of any
of the Teekay Entities to perform their obligations under this Agreement, the
Operative Agreements or the Other Agreements. To the knowledge of the Teekay
Parties, no third party to any indenture, contract, mortgage, deed of trust,
note agreement, loan agreement, lease or other agreement, obligation, condition,
covenant or instrument to which any of the Teekay Entities is a party or by
which any of them are bound or to which any of their properties are subject, is
in default under any such agreement, which breach, default or violation would,
if continued, reasonably be expected to have a Material Adverse Effect.
(v) Conformity of Securities to Description in Prospectus. The Units, when
issued and delivered in accordance with the terms of the Partnership Agreement
against payment therefor as provided herein, and the Sponsor Units and the
Incentive Distribution Rights, when issued and delivered in accordance with the
terms of the Partnership Agreement and the Contribution Documents, will conform
in all material respects to the descriptions thereof contained in the
Prospectus.
(w) No Material Adverse Change. Since the date of the latest audited
financial statements included in the Prospectus and other than as set forth in
or contemplated by the Prospectus, (i) no Partnership Entity has sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, investigation, order or decree, (ii) there has
not been any material change in the capitalization or material increase in the
short-term debt or long-term debt of the Partnership Entities or any material
adverse change, or any development involving or which could reasonably be
expected to involve, individually or in the aggregate, a prospective material
adverse change in or affecting the general affairs, management, condition
(financial or otherwise), stockholders' equity, partners' equity, members'
equity, results of operations, business, properties, assets or prospects of the
Partnership Entities, taken as a whole, and (iii) none of the Partnership
Entities has incurred any liability or obligation, direct, indirect or
contingent, or entered into any transactions, whether or not in the ordinary
course of business, that, individually or in the aggregate, is material to the
Partnership Entities taken as a whole, or otherwise than as set forth or
contemplated in the Prospectus (exclusive of any supplement thereto).
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(x) Financial Statements. The consolidated historical
financial statements (including the related notes and supporting schedules)
included in the Prospectus and the Registration Statement (i) present fairly in
all material respects the financial condition, results of operations and cash
flows of the entities purported to be shown thereby on the basis stated therein,
at the respective dates or for the respective periods indicated, (ii) comply as
to form in all material respects with the applicable accounting requirements of
the Act and (iii) have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The summary historical and pro
forma financial and operating information set forth in the Prospectus (and any
amendment or supplement thereto) under the caption "Summary Historical and Pro
Forma Financial and Operating Data" and the selected historical and pro forma
financial and operating data set forth in the Registration Statement and
Prospectus under the caption "Selected Historical and Pro Forma Financial and
Operating Data" is accurately presented in all material respects and prepared on
a basis consistent with the audited and unaudited historical financial
statements and pro forma financial statements, as applicable, from which it has
been derived. The pro forma financial statements included in the Prospectus and
the Registration Statement include assumptions that provide a reasonable basis
for presenting the significant effects directly attributable to the transactions
and events described therein; the related pro forma adjustments give appropriate
effect to those assumptions; and the pro forma adjustments reflect the proper
application of those adjustments to the historical financial statement amounts
in the pro forma financial statements included in the Prospectus and the
Registration Statement. The pro forma financial statements included in the
Prospectus and the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of Regulation S-X under the
Act.
(y) Independent Registered Public Accounting Firm. The
accountants, Ernst & Young LLP, who have certified or shall certify the
financial statements of Luxco, Teekay Spain and the Partnership Entities and
delivered their report with respect to the audited consolidated financial
statements included in the Prospectus, were and are the independent registered
public accounting firm with respect to such entities within the meaning of the
Act and the applicable published rules and regulations thereunder.
(z) Transfer Taxes. There are no transfer taxes or other
similar fees or charges under Federal law or the laws of any state, or any
political subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement, the issuance by the Partnership or
sale by the Partnership of the Units or the consummation of the transactions
(including the Transactions) contemplated by this Agreement and the Operative
Agreements
(aa) Title to Properties. At the Closing Date and the Option
Closing Date, after giving effect to the Transactions, the Operating Company and
the Operating Subsidiaries will have good and marketable title to all real
property and good title to all personal property described in the Prospectus to
be owned by the Operating Company and the Operating Subsidiaries, and each
Operating Subsidiary identified on Exhibit B is the sole owner of the vessel set
forth opposite its name on Exhibit B (the "VESSELS"), in each case free and
clear of all Liens except (i) as described, and subject to the limitations
contained, in the Prospectus, (ii) that arise from indebtedness expressly
assumed by the Operating Company or the Operating Subsidiaries pursuant to the
Contribution Documents or (iii) as do not materially affect the value
-11-
of such property, taken as a whole, and do not materially interfere with the use
of such properties, taken as a whole, as they have been used in the past and are
proposed to be used in the future, as described in the Prospectus (the Liens
described in clauses (i) through (iii) above being "PERMITTED LIENS"); provided
that with respect to any interest in real property and buildings held under
lease by the Operating Company or any of the Operating Subsidiaries, such real
property and buildings are held under valid and subsisting and enforceable
leases (except as may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors'
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law)), with such
exceptions as do not materially interfere with the use of the properties of the
Partnership Entities, taken as a whole as they have been used in the past as
described in the Prospectus and are proposed to be used in the future as
described in the Prospectus.
(bb) Vessel Registration. Each vessel identified in Exhibit B
is duly registered under the laws of the jurisdiction set forth on Exhibit B in
the name of the applicable Operating Subsidiary identified in Exhibit B, free
and clear of all Liens except for Permitted Liens.
(cc) Permits. Each of the Partnership Entities has, or at the
Closing Date and the Option Closing Date will have, such permits, consents (as
defined above), licenses, franchises, concessions, certificates and
authorizations ("PERMITS") of, and has or will have made all declarations and
filings with, all Federal, provincial, state, local or foreign governmental or
regulatory authorities, all self-regulatory organizations and all courts and
other tribunals, as are necessary to own or lease its properties and to conduct
its business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus and except for such
permits, declarations and filings that, if not obtained, would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
except as set forth in the Prospectus, each of the Partnership Entities has, or
at the Closing Date and the Option Closing Date will have, fulfilled and
performed all its material obligations with respect to such permits which are or
will be due to have been fulfilled and performed by such date and no event has
occurred that would prevent the permits from being renewed or reissued or that
allows, or after notice or lapse of time would allow, revocation or termination
thereof or results or would result in any impairment of the rights of the holder
of any such permit, except for such non-renewals, non-issues, revocations,
terminations and impairments that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and none of such
permits contains any restriction that is materially burdensome to the
Partnership Entities, taken as a whole.
(dd) Insurance. Except as set forth in the Prospectus with
respect to off hire insurance, the Partnership Entities are insured by insurers
of recognized financial responsibility covering against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance insuring the Partnership Entities or
their respective businesses, assets, employees, officers and directors are in
full force and effect; the Partnership Entities are in compliance with the terms
of such policies and instruments in all material respects; and there are no
claims by any of the Partnership Entities under any such policy or instrument as
to which any insurance company is denying liability or defending under a
reservation of rights clause; none of the Partnership Entities has been refused
any insurance coverage sought or applied for; and TSC and the General Partner
believe that each of the
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Partnership Entities will be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not
reasonably be expected to have a Material Adverse Effect.
(ee) Contracts to be Described or Filed. To the best knowledge
of the Teekay Entities, there is no agreement, franchise, contract, indenture,
lease or other document or instrument of a character required to be described in
the Registration Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required.
(ff) Litigation. There is (i) no action, suit or proceeding
before or by any court, arbitrator or governmental agency, body or official,
domestic or foreign, now pending or, to the knowledge of the Teekay Entities,
threatened, to which any of the Teekay Entities is or could reasonably be
expected to be made a party or to which the business or property of any of the
Teekay Entities is or could reasonably be expected to be made subject or that
would be required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus as required, (ii) no statute, rule,
regulation or order that has been enacted, adopted or issued by any governmental
agency or, to the knowledge of the Teekay Entities, that has been proposed by
any governmental agency, and (iii) no injunction, restraining order or order of
any nature issued by a Federal or state court or foreign court of competent
jurisdiction to which any of the Teekay Entities is or may be subject, that, in
the case of clauses (i), (ii) and (iii) above, could reasonably be expected to
(A) could reasonably be expected to (1) individually or in the aggregate have a
Material Adverse Effect, or (2) prevent or result in the suspension of the
offering and issuance of the Units, or (B) question the validity of this
Agreement, any Operative Agreement or any Other Agreement.
(gg) Certain Relationships and Related Transactions. No
relationship, direct or indirect, exists between or among any Teekay Entity, on
the one hand, and the directors, officers, members, partners, stockholders,
customers or suppliers of any Teekay Entity on the other hand that is required
to be described in the Prospectus that is not so described. There are no
outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business) or guarantees of indebtedness by any Teekay Entity
to or for the benefit of any of the officers, directors or managers of any
Partnership Entity or their respective family members, except as disclosed in
the Registration Statement and the Prospectus. No Teekay Entity has, in
violation of the Xxxxxxxx-Xxxxx Act of 2002, directly or indirectly, extended or
maintained credit, arranged for the extension of credit, or renewed an extension
of credit, in the form of a personal loan to or for any director or executive
officer of any Partnership Entity.
(hh) Xxxxxxxx-Xxxxx Act of 2002. The Partnership is in
compliance in all material respects with all applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission, the
NYSE (as defined in Section 1(qq) hereof) that are effective and applicable to
the Partnership.
(ii) No Labor Dispute. No labor problem or dispute with the
employees of the Teekay Entities exists or is threatened or imminent, and none
of the Teekay Entities is aware of any existing or imminent labor disturbance by
the employees of any of its principal suppliers, contractors or customers, that,
in each case, could reasonably be expected to have a Material Adverse Effect.
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(jj) Tax Returns. Each of the Teekay Entities has filed all
foreign, federal, state and local tax returns that are required to be filed or
has requested extensions thereof (except in any case in which the failure so to
file could not reasonably be expected to have a Material Adverse Effect) and has
paid all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is currently being
contested in good faith or as could not reasonably be expected to have a
Material Adverse Effect.
(kk) Books and Records. Each Partnership Entity maintains
systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with U.S. generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(ll) Environmental Compliance. Each Partnership Entity (i) is
in compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or Hazardous Materials (as defined below) ("ENVIRONMENTAL LAWS"),
(ii) has received and is in compliance with all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its
business, (iii) has not received notice of any actual or potential liability
under any environmental law, and (iv) is not a party to or affected by any
pending or threatened action, suit or proceeding, is not bound by any judgment,
decree or order, and has not entered into any agreement, in each case relating
to any alleged violation of any Environmental Law or any actual or alleged
release or threatened release or cleanup at any location of any Hazardous
Materials, except where such noncompliance or deviation from that described in
(i) - (iv) above could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. None of the Teekay Entities has been
named as a "potentially responsible party" under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"). The
term "HAZARDOUS MATERIAL" means (A) any "hazardous substance" as defined in
CERCLA, (B) any "hazardous waste" as defined in the Resource Conservation and
Recovery Act, as amended, (C) any petroleum or petroleum product, (D) any
polychlorinated biphenyl and (E) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material, waste or substance regulated under or
within the meaning of any other Environmental Law.
(mm) Effect of Environmental Laws. In the ordinary course of
its business, each Partnership Entity periodically reviews the effect of
Environmental Laws on its business, operations and properties, in the course of
which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, each
Partnership Entity has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, have a Material Adverse
Effect.
-14-
(nn) Intellectual Property. The Partnership Entities own or
possess, or as of the Closing Date will own or possess, after giving effect to
the Transactions, rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx registrations,
copyrights, technology, know-how and other intellectual property necessary for
the conduct of their respective businesses, except where the failure to possess
such rights could not reasonably be expected to have a Material Adverse Effect,
and the Partnership Entities believe that the conduct of their respective
businesses will not conflict with, and the Partnership Entities have not
received any notice of any claim of conflict with, any such rights of others.
(oo) Private Placement. The offer, sale and issuance of the
Sponsor Units to TSC and the Incentive Distribution Rights to the General
Partner are exempt from the registration requirements of the Act, the rules
thereunder and the securities laws of any state having jurisdiction with respect
thereto, and none of the Teekay Entities has taken or will take any action that
would cause the loss of such exemption.
(pp) No Distribution of Other Offering Materials. None of the
Teekay Entities has distributed and, prior to the later to occur of (i) the
Closing Date and (ii) completion of the distribution of the Units, will not
distribute, any prospectus (as defined under the Act) in connection with the
offering and sale of the Units other than the Registration Statement, any
Preliminary Prospectus, the Prospectus or other materials, if any, permitted by
the Act, including Rule 134 under the Act.
(qq) NYSE Listing. The Units have been approved for listing on
the New York Stock Exchange ("NYSE"), subject only to official notice of
issuance.
(rr) Investment Company/Public Utility Holding Company. None
of the Partnership Entities is now, and after the sale of the Units to be sold
by the Partnership hereunder and application of the net proceeds from such sale
as described in the Prospectus under the caption "Use of Proceeds" and after
giving effect to the Transactions will be,(i) an "investment company" or a
company "controlled by" an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations
thereunder (the "1940 ACT") or (ii) a "public utility company," "holding
company" or a "subsidiary company" of a "holding company" under the Public
Utility Holding Company Act of 1935, as amended.
(ss) Passive Foreign Investment Company. To the best
knowledge of the Teekay Entities, the Partnership is not a Passive Foreign
Investment Company ("PFIC") within the meaning of Section 1296 of the Code.
(tt) Tax Passthrough Status. None of the Partnership Entities
has elected to be treated as a corporation for United States federal income tax
purposes. Each of the Partnership Entities has properly elected not to be
treated as a corporation for United States federal income tax purposes (other
than any Partnership Entity that is classified other than as a corporation
without regard to whether it makes an election).
(uu) Foreign Corrupt Practices Act. No Teekay Entity nor any
director, officer, agent, employee or affiliate of any Teekay Entity, is aware
of or has taken any action,
-15-
directly or indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended (such act, including the rules
and regulations thereunder, the FCPA"), including, without limitation, making
use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign official" (as
such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the
FCPA and each of the Teekay Entities and its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(vv) Sanctions Laws and Regulations. Neither the sale of the
Units by the Partnership hereunder nor the use of the proceeds thereof will
cause any U.S. person participating in the offering, either as underwriter
and/or purchasers of the Units, to violate the Trading With the Enemy Act, as
amended, the International Emergency Economic Powers Act, as amended, or any
foreign asset control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) (all such laws and regulations
collectively referred to as the "SANCTIONS LAWS AND REGULATIONS") or any
enabling legislation or executive order relating thereto.
(ww) OFAC. None of the Teekay Entities is, and, to the
knowledge of the Teekay Parties, no director, officer, agent, employee or
affiliate of any of the Teekay Entities is, currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department ("OFAC"); and the Partnership Entities will not directly or
indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(xx) Money Laundering Laws. The operations of the Teekay
Entities are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the "MONEY LAUNDERING LAWS") and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving any of the Teekay Entities with
respect to the Money Laundering Laws is pending or, to the best knowledge of the
Teekay Parties, threatened.
(yy) Brokers. Except as described in the Prospectus, there are
no contracts, agreements or understandings between any Partnership Entity and
any person that would give rise to a valid claim against any Partnership Entity
or any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering of the Units.
(zz) Market Stabilization. None of the Teekay Entities has
taken, directly or indirectly, any action designed to or that would constitute
or that might reasonably be expected
-16-
to cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Partnership to facilitate the
sale or resale of the Units.
(aaa) Prohibition on Dividends. Except as provided in the
Credit Agreement and by Section 40 of the Xxxxxxxx Islands Limited Liability
Company Act of 1996, neither the Operating Company nor any Operating Subsidiary
is prohibited, directly or indirectly, from paying any dividends to the
Partnership or the Operating Company, as the case may be, from making any other
distribution on such subsidiary's equity securities, from repaying to the
Partnership or the Operating Company any loans or advances to such subsidiary
from the Partnership or the Operating Company or from transferring any of such
subsidiary's property or assets to the Partnership, the Operating Company or any
other subsidiary of the Partnership.
(bbb) Statistical and Market Data. The statistical and
market-related data included in the Prospectus and the Registration Statement
are based on or derived from sources which the Teekay Entities believe to be
reliable and accurate.
Furthermore, the Teekay Parties represent and warrant to
Citigroup Global Markets Inc. that (i) the Registration Statement, the
Prospectus and any preliminary prospectus comply, and any further amendments or
supplements thereto will comply, with any applicable laws or regulations of
foreign jurisdictions in which the Prospectus or any preliminary prospectus, as
amended or supplemented, if applicable, are distributed in connection with the
Directed Unit Program, and (ii) no authorization, approval, consent, license,
order, registration or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is necessary
under the securities laws and regulations of foreign jurisdictions in which the
Directed Units are offered outside the United States. None of the Teekay
Entities has offered, or caused the Underwriters to offer, Units to any person
pursuant to the Directed Unit Program with the specific intent to unlawfully
influence (i) a customer or supplier of the Teekay Entities to alter the
customer's or supplier's level or type of business with the Teekay Entities, or
(ii) a trade journalist or publication to write or publish favorable information
about the Teekay Entities or its products.
Any certificate signed by any officer of any Teekay Entity and
delivered to the Representatives or to counsel for the Underwriters in
connection with the closing of the Offering shall be deemed a representation and
warranty by such Teekay Entity, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Partnership agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Partnership, at a purchase price of $_____ per
Unit, the amount of the Firm Units set forth opposite such Underwriter's name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Partnership hereby
grants an option to the several Underwriters to purchase, severally and not
jointly, up to 825,000 Option Units at the
-17-
same purchase price per Unit as the Underwriters shall pay for the Firm Units.
Said option may be exercised only to cover over-allotments in the sale of the
Firm Units by the Underwriters. Said option may be exercised in whole or in part
at any time and from time to time on or before the 30th day after the date of
the Prospectus upon written or telegraphic notice by the Representatives to the
Partnership setting forth the number of Option Units as to which the several
Underwriters are exercising the option and the settlement date. The number of
Option Units to be purchased by each Underwriter shall be the same percentage of
the total number of Option Units to be purchased by the several Underwriters as
such Underwriter is purchasing of the Firm Units, subject to such adjustments as
Citigroup Global Markets Inc. in its absolute discretion shall make to eliminate
any fractional Units.
3. Delivery and Payment. Delivery of and payment for the Firm
Units and the Option Units (if the option provided for in Section 2(b) hereof
shall have been exercised on or before the third Business Day prior to the
Closing Date) shall be made at _______ AM, ______________ time, on
_____________, 2005 at the offices of ________________________, _______________,
or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Partnership or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Units being herein called the "CLOSING DATE"). Delivery of the Units shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to an account specified
by the Partnership. Delivery of the Units shall be made through the facilities
of The Depository Trust Company ("DTC") unless the Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Partnership will
deliver the Option Units (at the expense of the Partnership) to the
Representatives, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to an account specified
by the Partnership. Delivery of the Option Units shall be made through the
facilities of DTC unless Citigroup Global Markets Inc. shall otherwise instruct.
If settlement of the Option Units occurs after the Closing Date, the Partnership
will deliver to the Representatives on the Option Closing Date for the Option
Units, and the obligation of the Underwriters to purchase the Option Units shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Units for sale to the public as set
forth in the Prospectus.
5. Agreements. Each of the Teekay Parties, jointly and
severally, agrees with the several Underwriters that:
-18-
(a) Preparation of Prospectus and Registration Statement. The
Teekay Parties will use their best efforts to cause the Registration Statement,
if not effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Units, the
Partnership will not file any amendment of the Registration Statement or
supplement to the Prospectus or any Rule 462(b) Registration Statement unless
the Partnership has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the Prospectus
is otherwise required under Rule 424(b), the Partnership will cause the
Prospectus, properly completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing. The
Partnership will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become effective,
(2) when the Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (3) when,
prior to termination of the offering of the Units, any amendment to the
Registration Statement shall have been filed or become effective, (4) of any
request by the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any supplement to
the Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (6) of the receipt by the Partnership of any notification with respect to
the suspension of the qualification of the Units for sale in any jurisdiction or
the institution or threatening of any proceeding for such purpose. The
Partnership will use its best efforts to prevent the issuance of any such stop
order or the suspension of any such qualification and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) Filing of Amendment or Supplement. If, at any time when a
prospectus relating to the Units is required to be delivered under the Act, any
event occurs as a result of which the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the Act
or the rules thereunder, the Partnership promptly will (1) notify the
Representatives of any such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or omission or effect such
compliance, and (3) supply any supplemented Prospectus to you in such quantities
as you may reasonably request.
(c) Reports to Unitholders. As soon as practicable, but in any
event not later than 90 days after the close of the period covered thereby, the
Partnership will make generally available to its unitholders and to the
Representatives an earnings statement or statements of the Partnership Entities
which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
-19-
(d) Copies of Reports. The Partnership will furnish or make
available via the Commission's Electronic Data Gathering Analysis and Retrieval
(XXXXX) System to its unitholders annual reports containing financial statements
audited by independent public accountants and quarterly reports containing
financial statements and financial information which may be unaudited. The
Partnership will, for a period of two years from the Closing Date, furnish or
make available via the Commission's Electronic Data Gathering Analysis and
Retrieval (XXXXX) System, to the Underwriters a copy of each annual report,
quarterly report, current report and all other documents, reports and
information furnished by the Partnership to holders of Units (excluding any
periodic income tax reporting materials) or filed with any securities exchange
or market pursuant to the requirements of such exchange or market or with the
Commission pursuant to the Act or the Exchange Act (other than any annual CEO
certification and annual written affirmations to the NYSE).
(e) Signed Copies of the Registration Statement. The
Partnership will furnish to Citigroup Global Markets Inc. and counsel for the
Underwriters signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of each
Preliminary Prospectus and the Prospectus and any supplement thereto as the
Representatives may reasonably request.
(f) Qualification of Securities. The Partnership will arrange,
if necessary, for the qualification of the Units for sale under the laws of such
jurisdictions as the Representatives may reasonably designate and will maintain
such qualifications in effect so long as reasonably required for the
distribution of the Units; provided that in no event shall the Partnership be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of process in
suits, other than those arising out of the offering or sale of the Units, in any
jurisdiction where it is not now so subject. The Partnership will, from time to
time, prepare and file such statements and reports as are or may be reasonably
required of it to continue such qualifications in effect for so long a period as
the Underwriters may reasonably request for the distribution of the Units.
(g) Lock-up Period; Lock-up Letters. The Teekay Entities will
not, without the prior written consent of Citigroup Global Markets Inc., offer,
sell, contract to sell, pledge, or otherwise dispose of, or enter into any
transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the Teekay Entities or any affiliated
company of the Teekay Entities, directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder with respect to, any Common Units or any securities convertible into,
or exercisable, or exchangeable for, Common Units, or publicly announce an
intention to effect any such transaction, for a period of 180 days after the
date of this Agreement (the "RESTRICTED PERIOD"); provided, however, that the
Partnership may grant restricted units or options to purchase Common Units under
the Partnership's 2005 Long-Term Incentive Plan.
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(h) Compliance with Xxxxxxxx-Xxxxx Act. Each of the
Partnership Entities will comply in all material respects with all applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002.
(i) Price Manipulation. The Teekay Entities will not take,
directly or indirectly, any action designed to or that would constitute or that
could reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Units.
(j) Expenses. The Partnership agrees to pay the costs and
expenses relating to the following matters: (i) the preparation, printing or
reproduction and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), each Preliminary
Prospectus, the Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus, and all
amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Units; (iii)
the preparation, printing, authentication, issuance and delivery of certificates
for the Units, including any stamp or transfer taxes in connection with the
original issuance and sale of the Units; (iv) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Units; (v) the registration of the Units under the Exchange Act and the
listing of the Units on the NYSE; (vi) any registration or qualification of the
Units for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such registration and qualification); (vii) any
filings required to be made with the National Association of Securities Dealers,
Inc. ("NASD") (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such filings); (viii) the
transportation and other expenses incurred by or on behalf of Partnership
representatives in connection with presentations to prospective purchasers of
the Units; (ix) the fees and expenses of the Partnership's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Partnership; (x) an advisory fee equal to .375% of the gross proceeds of the
Offering (including any exercise of the option set forth in Section 2 hereof) to
Citigroup Global Markets Inc. for advisory services in connection with the
evaluation, analysis and structuring of the Partnership; and (xi) all other
costs and expenses of the Partnership or the Teekay Entities incident to the
performance by them of their obligations hereunder. The Underwriters will
reimburse the Partnership for expenses that are incurred in connection with the
Offering up to a maximum of $200,000. Such reimbursement may be made by wire
transfer of immediately available funds to such account or accounts designated
by the Partnership or such other method as agreed to by the parties following
delivery of satisfactory documentation of the expenses of the Underwriters.
Notwithstanding the foregoing, it is understood that, except as expressly
provided in this subsection (j), subsection (o), and Section 7 and 8 hereof, the
Underwriters will pay all of their own costs and expenses, including without
limitation, fees and disbursements of their counsel, transfer taxes on the
resale by them of any of the Common Units, the transportation and other expenses
incurred by or on their behalf in connection with presentations to potential
purchasers of Units and any advertising expenses relating to offers of Units
they may make.
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(k) Use of Proceeds. The Partnership Entities will use the net proceeds
received by them from the sale of the Units in the manner specified in the
Prospectus under "Use of Proceeds."
(l) Rule 463. The Partnership will file with the Commission such
information in Form 20-F as may be required by Rule 463 under the Act.
(m) Investment Company; PFIC. For a period of five years after the Closing
Date or, if later, the Option Closing Date, the Partnership will use its best
reasonable efforts to ensure that (i) no Partnership Entity, nor any subsidiary
thereof, shall become an "investment company" as defined in the 1940 Act, and
(2) the Partnership shall not become a PFIC.
(n) Sanctions Laws and Regulations. The Partnership will not take, and
will cause each subsidiary not to take, directly or indirectly, any action that
could reasonably be expected to result in a violation by any U.S. person
participating in the offering of the Sanctions Laws and Regulations with respect
to the sale of the Units hereunder. Further, the Partnership will not use, and
will cause each subsidiary not to use, the proceeds from the sale of the Units,
directly or indirectly, for any purpose or activity that would cause the
Underwriters or any purchaser of the Units to be in violation of the Sanctions
Laws and Regulations or any agent or "Specially Designated National" of any
country the subject of the Sanctions Laws and Regulations, or any person or
entity of any country the subject of the Sanctions Laws and Regulations.
(o) Directed Units.
(i) The Partnership agrees to pay (1) all fees and disbursements
reasonably incurred by the Underwriters (but excluding all fees and
expenses of counsel in connection with the Directed Unit Program, (2) all
costs and expenses incurred by the Underwriters in connection with the
printing (or reproduction) and delivery (including postage, air freight
charges and other charges for counting and packaging) of such copies of
the Directed Unit Program materials, and (3) all stamp duties, similar
taxes or duties or other taxes, if any, incurred by the Underwriters in
connection with the Directed Unit Program.
(ii) Furthermore, the Partnership covenants with Citigroup Global
Markets Inc. that the Partnership Entities will comply with all applicable
securities and other applicable laws, rules and regulations in each
foreign jurisdiction in which the Directed Units are offered in connection
with the Directed Unit Program.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Firm Units and the Option Units, as the case
may be, shall be subject to the accuracy of the representations and warranties
on the part of the Teekay Parties contained herein as of the Execution Time, the
Closing Date and any Option Closing Date pursuant to Section 3 hereof, to the
accuracy of the statements of the Teekay Parties made in any certificates
delivered pursuant to the provisions hereof, to the performance by the Teekay
Parties of their obligations hereunder and to the following additional
conditions:
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(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM New York
City time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, will
be filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) All corporate, partnership and limited liability company proceedings
and other legal matters incident to the authorization, form and validity of this
Agreement, the Operative Agreements, the Common Units, the Subordinated Units,
the Incentive Distribution Rights, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby (including the Transactions) shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Partnership shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(c) The Partnership shall have requested and caused Xxxxxx, Xxxxxx &
Xxxxxxxx, special Xxxxxxxx Islands counsel for the Partnership, to have
furnished to you their written opinion, dated the Closing Date and addressed to
you, in form and substance reasonably satisfactory to the Underwriters, to the
effect that:
(i) Formation of the Partnership. The Partnership has been duly
formed and is validly existing in good standing as a limited partnership
under the law of the Republic of The Xxxxxxxx Islands, and has the limited
partnership power and authority to own or lease its properties, to assume
the liabilities being assumed by it pursuant to the Contribution Documents
and to conduct its business, in each case in all material respects as
described in the Registration Statement and the Prospectus.
(ii) Formation of the General Partner and the Operating Company.
Each of the General Partner and the Operating Company has been duly formed
and is validly existing in good standing as a limited liability company
under the law of the Republic of The Xxxxxxxx Islands, and each has the
limited liability company power and authority to own or lease its
properties, to assume the liabilities being assumed by it pursuant to the
Contribution Documents and to conduct its business, in each case in all
material respects as described in the Registration Statement and the
Prospectus.
(iii) Formation of Operating Subsidiaries. Each of the subsidiaries
of the Partnership listed on Schedule IV (the "XXXXXXXX ISLANDS
SUBSIDIARIES") is validly existing in good standing as a [corporation]
[limited liability company] under the law of the Republic of The Xxxxxxxx
Islands, and each has the [corporate] [limited liability company] power
and authority to own or lease its properties, to assume the liabilities
being assumed by it pursuant to the Contribution Documents and to conduct
its business,
- 23 -
in each case in all material respects as described in the Registration
Statement and the Prospectus.
(iv) Ownership of the General Partner Interest in the Partnership.
The General Partner is the sole general partner of the Partnership with a
2% general partner interest in the Partnership; such general partner
interest has been duly authorized and validly issued in accordance with
the Partnership Agreement; and, to our knowledge the General Partner owns
its general partner interest free and clear of all Liens (except for
restrictions on transferability contained in the Partnership Agreement, as
described in the Prospectus or under applicable securities laws).
(v) Ownership of the Sponsor Units and the Incentive Distribution
Rights. TSC owns the Sponsor Units and the General Partners owns all of
the Incentive Distribution Rights; all of such Sponsor Units, the
Incentive Distribution Rights and the limited partner interests
represented thereby have been duly authorized and validly issued in
accordance with the Partnership Agreement, and are fully paid (to the
extent required under the Partnership Agreement) and nonassessable (except
as described in the Prospectus under the caption "The Partnership
Agreement-Limited Liability"); and to our knowledge, TSC owns the Sponsor
Units and the General Partner owns the Incentive Distribution Rights, in
each case free and clear of all Liens (except, with respect to the
Incentive Distribution Rights, restrictions on transferability as
described in the Prospectus or under applicable law).
(vi) Valid Issuance of the Firm Units. The Common Units to be issued
and sold to the Underwriters by the Partnership pursuant to this Agreement
and the limited partner interests represented by such Common Units have
been duly authorized by the Partnership Agreement and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms of this Agreement, will be validly issued, fully paid (to the
extent required under the Partnership Agreement) and nonassessable (except
as described in the Prospectus under the caption "The Partnership
Agreement-Limited Liability"); and other than the Sponsor Units and the
Incentive Distribution Rights, the Common Units will be the only limited
partner interests of the Partnership issued and outstanding at the Closing
Date other than any awards made under the Partnership's 2005 Long-Term
Incentive Plan.
(vii) Ownership of the General Partner. TSC directly owns a 100%
membership interest in the General Partner; such membership interest has
been duly authorized and validly issued in accordance with the General
Partner LLC Agreement and is fully paid (to the extent required under the
General Partner LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Section 51 of the Xxxxxxxx Islands
Limited Liability Company Act); and to our knowledge, TSC directly owns
such membership interest free and clear of all Liens.
(viii) Ownership of the Operating Company. The Partnership owns a
100% membership interest in the Operating Company; such membership
interest has been duly authorized and validly issued in accordance with
the Operating Company LLC Agreement and is fully paid (to the extent
required under the Operating Company LLC
- 24 -
Agreement) and nonassessable (except as such nonassessability may be
affected by Section 51 of the Xxxxxxxx Islands Limited Liability Company
Act); and to our knowledge, the Partnership owns such membership interest
free and clear of all Liens other than Liens listed on Schedule VI hereto.
(ix) Ownership of the Xxxxxxxx Island Subsidiaries. The Operating
Company owns 100% of the equity interests in each Xxxxxxxx Islands
Subsidiary; such equity interests have been duly authorized and been
validly issued in accordance with the organizational documents of each
Xxxxxxxx Islands Subsidiary and are fully paid (to the extent required
under the organizational documents of each Xxxxxxxx Island Subsidiary) and
nonassessable (except as such nonassessability may be affected by the
applicable statutes of the Xxxxxxxx Islands for each Operating
Subsidiary); and to our knowledge, the Operating Company owns such equity
interests free and clear of all Liens other the Liens listed on Schedule
VI hereto.
(x) No Preemptive Rights or Options. Except as described in the
Prospectus, there are no preemptive rights or other rights to subscribe
for or to purchase, nor any restriction upon the voting or transfer of,
(i) any limited partner interests in the Partnership, (ii) any membership
interests in the General Partner or the Operating Company or (iii) any
equity interests in any Xxxxxxxx Islands Subsidiary, in each case pursuant
to the limited partnership agreement, limited liability company agreement
or other organizational documents of such entity. To the knowledge of such
counsel and except as described in the Prospectus, there are no
outstanding options or warrants to purchase (A) any Common Units,
Subordinated Units, Incentive Distribution Rights or other interests in
the Partnership, (B) any membership interests in the General Partner or
the Operating Company, (C) any equity interests in any Xxxxxxxx Islands
Subsidiary.
(xi) No Registration Rights. To the knowledge of such counsel,
neither the filing of the Registration Statement nor the offering or sale
of the Common Units as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any securities of any of the
General Partner, the Partnership, the Operating Company or the Xxxxxxxx
Islands Subsidiaries.
(xii) Authority and Authorization. The Partnership has all requisite
limited partnership power and authority to issue, sell and deliver (i) the
Common Units, in accordance with and upon the terms and conditions set
forth in this Agreement, the Partnership Agreement, the Registration
Statement and the Prospectus and (ii) the Sponsor Units and Incentive
Distribution Rights, in accordance with and upon the terms and conditions
set forth in the Partnership Agreement and the Contribution Documents. All
corporate, limited partnership and limited liability company action, as
the case may be, required to be taken by the Xxxxxxxx Islands Entities or
any of their respective stockholders, partners or members pursuant to the
law of the Republic of The Xxxxxxxx Islands for the authorization,
issuance, sale and delivery of the Common Units, the Sponsor Units and the
Incentive Distribution Rights, the execution and delivery of the Operative
Agreements to which any of the Xxxxxxxx Islands Entities is a party and
the consummation of the transactions (including the Transactions)
contemplated by this Agreement and such Operative Agreements, has been
validly taken.
- 25 -
(xiii) Due Execution and Delivery of the Underwriting Agreement and
the Operative Agreements. Each of this Agreement and the Operative
Agreements to which any of the Xxxxxxxx Island Entities is a party has
been duly authorized and validly executed and delivered by each such
entity, as applicable.
(xiv) Enforceability of Operative Agreements. Assuming due
authorization, execution and delivery by each party to the Operative
Agreements (other than the Xxxxxxxx Islands Entities), each of the
Operative Agreements governed by the law of the Republic of The Xxxxxxxx
Islands constitutes a valid and legally binding obligation of each of the
[Teekay Entities] parties thereto, enforceable against each such [Teekay
Entity] in accordance with its respective terms, except that (i) the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (ii) the indemnity,
contribution and exoneration provisions contained in any of such
agreements may be limited by applicable laws and public policy.
(xv) Sufficiency of Contribution Documents. Each of the Contribution
Documents that is governed by the law of the Republic of The Xxxxxxxx
Islands is in a form legally sufficient under the law of the Republic of
The Xxxxxxxx Islands to transfer or convey to, or vest in, the
Partnership, the Operating Company and the Operating Subsidiaries [all
properties not already held by them that are, individually or in the
aggregate, required to enable the Partnership, the Operating Company and
the Operating Subsidiaries to conduct their operations (in all material
respects as contemplated by the Registration Statement and the
Prospectus)], as the case may be, the properties identified in such
Contribution Documents, subject to the conditions, reservations and
limitations contained in such Contribution Documents. The Partnership, the
Operating Company and the Operating Subsidiaries, upon execution and
delivery of the Contribution Documents governed by the law of the Republic
of The Xxxxxxxx Islands, succeeded or will succeed in all material
respects under the law of the Republic of The Xxxxxxxx Islands to the
business, assets, properties, liabilities and operations of the
Contributed Business [as reflected in the pro forma consolidated financial
statements of the
- 26 -
Partnership included in the Prospectus, except as disclosed in the
Prospectus and the Contribution Documents.]
(xvi) Sufficiency of Conversion. The conversion of the Xxxxxxxx
Islands Subsidiaries from corporations to limited liability companies
became effective under the law of the Republic of The Xxxxxxxx Islands on
________________, 2005.
(xvii) No Conflicts. None of the offering, issuance and sale by the
Partnership of the Common Units, the execution, delivery and performance
of this Agreement or the Operative Agreements governed by the law of the
Republic of The Xxxxxxxx Islands by the Teekay Entities, as applicable, or
the consummation of the transactions contemplated hereby and thereby
(including the Transactions) (i) conflicts or will conflict with or
constitutes or will constitute a violation of any limited partnership
agreement, limited liability company agreement or other organizational
documents of any Xxxxxxxx Island Entity, (ii) conflicts or will conflict
with or constitutes or will constitute a breach or violation of, or a
default under (or an event which, with notice or lapse of time or both,
would constitute such a default) any Operative Agreement governed by the
law of the Republic of The Xxxxxxxx Islands, [any Other Agreement governed
by the law of the Republic of The Xxxxxxxx Islands] or any other agreement
governed by the law of the Republic of The Xxxxxxxx Islands filed as an
exhibit to the Registration Statement, (iii) violates or will violate any
statute, law, rule, regulation, judgment, order or decree known to such
counsel of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority situated in, the Republic of The
Xxxxxxxx Islands, or (iv) to our knowledge results or will result in the
creation or imposition of any Lien upon any property or assets of any of
the Partnership Entities, which conflicts, breaches, violations, defaults
or Liens, in the case of clauses (ii), (iii) or (iv), would, individually
or in the aggregate, have a material adverse effect on the condition
(financial or other), business or results of operations of the Partnership
Entities taken as a whole.
(xviii) No Consents. No consent (as such terms is defined in Section
1(t) hereof) under the law of the Republic of The Xxxxxxxx Islands is
required for the offering, issuance and sale by the Partnership of the
Common Units, the execution, delivery and performance of this Agreement
and the Operative Agreements governed by the law of the Republic of The
Xxxxxxxx Islands by the Teekay Entities party thereto or the consummation
of the transactions contemplated by this Agreement or the Operative
Agreements governed by the law of the Republic of The Xxxxxxxx Islands
(including the Transactions).
(xix) Permits. To the knowledge of such counsel, no permits (as such
term is defined in Section 1(cc) hereof) of, or declarations or filings
with, any of governmental or regulatory authorities of the Republic of The
Xxxxxxxx Islands are required for any of the Partnership Entities to own
or lease its properties and to conduct its business in the manner
described in the Prospectus, subject to such qualifications as may be set
forth in the Prospectus and except for such permits which, if not
obtained, would not, individually or in the aggregate, have a material
adverse effect upon the ability of the Partnership and its subsidiaries,
taken as a whole, to conduct their businesses in all material respects in
the manner described in the Prospectus; and, to the
- 27 -
knowledge of such counsel, none of the Teekay Entities has received any
notice of proceedings relating to the revocation or modification of any
such permits which, individually or in the aggregate would reasonably be
expected to have a material adverse effect upon the ability of the
Partnership and its subsidiaries, taken as a whole, to conduct their
businesses in the manner described in the Prospectus.
(xx) Vessel Documentation. Each of the Vessels identified in
Schedule 2 hereto is registered under the law of the Republic of The
Xxxxxxxx Islands in the ownership of the Xxxxxxxx Islands Subsidiary
identified in Schedule 2 hereto, free and clear of all recorded Liens
except for Permitted Liens.
(xxi) Accuracy of Statements. The statements in the Registration
Statement and Prospectus under the captions "Cash Distribution Policy,"
"Business -- Regulation -- International Maritime Organization (or IMO),"
"Business -- Regulation -- Environmental Regulations -- The United States
Oil Pollution Act of 1990 (or OPA 90)," "Business -- Regulation --
Environmental Regulations -- Other Environmental Initiatives," "Business
-- Taxation of the Partnership -- Xxxxxxxx Islands Taxation," "Conflicts
of Interest and Fiduciary Duties," "Description of the Common Units" and
"The Partnership Agreement" and "Enforcement of Civil Liabilities,"
insofar as they constitute descriptions of agreements, fairly describe in
all material respects the portions of the agreements addressed thereby,
and insofar as they purport to constitute summaries of law or legal
conclusions, fairly describe in all material respects the portions of the
statutes and regulations addressed thereby, and the Common Units, the
Subordinated Units and the Incentive Distribution Rights conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus under the captions "Summary --
The Offering," "Cash Distribution Policy," "Description of the Common
Units" and "The Partnership Agreement."
(xxii) Negative Assurance. Although we have not independently
verified, are not passing on, and are not assuming any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus under the captions "Business --
Regulation -- International Maritime Organization (or IMO),"
"Business-Regulation-Environmental Regulations -- The United States Oil
Pollution Act of 1990 (or OPA 90)," "Business -- Regulation --
Environmental Regulations -- Other Environmental Initiatives," "Business
-- Taxation of the Partnership -- Xxxxxxxx Islands Taxation," "Conflicts
of Interest and Fiduciary Duties," "The Partnership Agreement-Limited
Liability" and "Enforcement of Civil Liabilities," on the basis of the
procedures undertaken by us (and relying as to materiality to the extent
we deem appropriate upon the opinions of officer and other representatives
of the Partnership), no facts have come to our attention that cause us to
believe that the statements contained in the Registration Statement and
the Prospectus under such captions contained as of its effective date an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading.
(xxiii) Tax Opinion. The opinion of Xxxxxx, Xxxxxx & Xxxxxxxx that
is filed as Exhibit 8.2 to the Registration Statement is confirmed and the
Underwriters may rely upon such opinion as if it were addressed to them.
(xxiv) No Additional Liability. Upon the consummation of the
Transactions, the Partnership will not be liable under the law of the
Republic of The Xxxxxxxx Islands for the liabilities of the Operating
Company or the Operating
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Subsidiaries and the limited partners of the Partnership will not be
liable under the law of the Republic of The Xxxxxxxx Islands for the
liabilities of the Partnership, the Operating Company or the Operating
Subsidiaries, except in each case to the extent they may have liability
under the law of the Republic of The Xxxxxxxx Islands.
(xxv) Choice of Law. The choice of New York law to govern this
Agreement constitutes a valid choice of law under the law of the Republic
of The Xxxxxxxx Islands.
(xxvi) Non-Exclusive Jurisdiction. The submission by the Partnership
to the non-exclusive jurisdiction of any Federal or state court in the
Borough of Manhattan, The City of New York, is a valid submission under
the law of the Republic of The Xxxxxxxx Islands.
(xxvii) Enforcement of Judgments. A judgment granted by a foreign
court against the Partnership may be enforced in the Republic of The
Xxxxxxxx Islands without a retrial on the merits of the matter provided
that: (i) the judgment is for a sum of money and is final in the
jurisdiction granting the judgment; (ii) the court granting the judgment
had jurisdiction under the laws of the place where it sat and the judgment
does not offend principles of the Republic of The Xxxxxxxx Islands as to
due process, propriety or public order, and (iii) the defendant was
actually present in person or by a duly appointed representative and the
judgment does not constitute in effect a default judgment.
Such counsel expresses no opinion with respect to (i) the title of any of
the Teekay Entities to any of their respective real or personal property
purported to be transferred by the Contribution Documents and (ii) the accuracy
or descriptions of such real or personal property.
(d) The Partnership shall have requested and caused Xxxxxx & Xxxxxx
L.L.P., special counsel to the Partnership, to have furnished to you their
written opinion, dated the Closing Date and addressed to you, in form and
substance reasonably satisfactory to the Underwriters, to the effect that:
(i) Enforceability. The Omnibus Agreement has been duly authorized,
validly executed and delivered by each of the Teekay Parties and
constitutes a valid and legally binding obligation of the Teekay Parties,
enforceable against each of them in accordance with its respective terms,
except that (i) the enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and (ii) the indemnity,
contribution and exoneration provisions contained in any of such
agreement may be limited by applicable laws and public policy.
(ii) Description in Registration Statement. The statements in the
Registration Statement and Prospectus under the captions "Cash
Distribution Policy," "Conflicts of Interest and Fiduciary Duties,"
"Description of the Common Units," and
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"The Partnership Agreement" insofar as they constitute descriptions of
agreements, fairly describe in all material respects the portions of the
agreements addressed thereby, and the Common Units, the Subordinated Units
and the Incentive Distribution Rights conform in all material respects to
the descriptions thereof contained in the Registration Statement and the
Prospectus under the captions "Summary -- The Offering," "Cash
Distribution Policy," "Description of the Common Units" and "The
Partnership Agreement"; provided, however, that such counsel need not
express any opinion with respect to Xxxxxxxx Islands law.
(iii) Description of Investment by Employee Benefit Plans. The
statements in the Registration Statement and Prospectus under the caption
"Investment in Teekay LNG Partners L.P. by Employee Benefit Plans,"
insofar as it purports to constitute a summary of law or legal
conclusions, fairly describes in all material respects the portions of the
statutes and regulations addressed thereby
(iv) Tax Opinion. The opinion of Xxxxxx & Xxxxxx L.L.P. that is
filed as Exhibit 8.1 to the Registration Statement is confirmed and the
Underwriters may rely upon such opinion as if it were addressed to them.
(e) The Partnership shall have requested and caused Xxxxxxx Coie LLP,
counsel for the Partnership, to have furnished to you their written opinion,
dated the Closing Date and addressed to you, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) No Options. To the knowledge of such counsel and except as
described in the Prospectus, there are no outstanding options or warrants
to purchase (A) any Common Units, Subordinated Units, Incentive
Distribution Rights or other interests in the Partnership, or (B) any
membership interests in the General Partner, the Operating Company, or the
Operating Subsidiaries.
(ii) No Registration Rights. To the knowledge of such counsel, there
are no contracts, agreements or understandings between any of the Teekay
Entities and any person granting such person the right to require any of
the Teekay Entities to file a registration statement under the Act with
respect to any securities of any of the Partnership Entities owned or to
be owned by such person or to require any of the Teekay Entities to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by any Partnership Entity under the
Act.
(iii) Accuracy of Statements. The statements in the Registration
Statement and Prospectus under the captions "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Liquidity and
Capital Resources -- Credit
- 30 -
Facility," "Management's Discussion and Analysis of Financial Condition
and Results of Operations -- Liquidity and Capital Resources -- Covenants
and Other Restrictions in Our Financing Arrangements," "Business -- Time
Charters -- General Provisions," "Business -- LNG Time Charters,"
"Business -- Crude Oil Time Charters" and "Certain Relationships and
Related Party Transactions -- Omnibus Agreement," "Certain Relationships
and Related Party Transactions -- Advisory and Administrative Services
Agreements," "Certain Relationships and Related Party Transactions --
Joint Venture with an Entity Controlled by Xx. Xxxxxxxx Xxxxxx," "Certain
Relationships and Related Party Transactions -- Granada Spirit Charter and
Purchase Agreement," and "Certain Relationships and Related Party
Transactions -- Agreement to Purchase RasGas II Interest," insofar as they
constitute descriptions of agreements, fairly describe in all material
respects the portions of the agreements addressed thereby.
(iv) Effectiveness of Registration Statement. The Registration
Statement was declared effective under the Act as of May ___, 2005; the
Prospectus was filed with the Commission pursuant to Rule 424(b) on May
___, 2005 in a manner and within the time period required by Rule 424(b);
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Act
and no proceedings for that purpose have been instituted or threatened
(v) Compliance as to Form. The Registration Statement and the
Prospectus (other than the financial statements and other financial and
statistical information contained therein, as to which such counsel need
not express any opinion) comply as to form in all material respects with
the applicable requirements of the Act and the rules thereunder.
(vi) Legal Proceedings or Contracts to be Described or Filed. To the
knowledge of such counsel, (i) there is no pending or threatened action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving any Teekay Entity or its
property of a character required to be disclosed in the Registration
Statement which is not disclosed in the Prospectus as required and (ii)
there is no agreement, franchise, contract, indenture, lease or other
document or instrument of a character that are required to be described in
the Registration Statement or the Prospectus by the Act or to be filed by
the Act as exhibits to the Registration Statement that are not described
or filed as required.
(vii) Investment Company. No Partnership Entity is (i) an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
(viii) Private Placement. The offer, sale and issuance of the
Sponsor Units to TSC and of the Incentive Distribution Rights to the
General Partner pursuant to the Partnership Agreement are exempt from the
registration requirements of the Act.
In addition, such counsel shall state that, in the course of such
counsel's participation, as counsel to the Partnership, in the preparation
of the Registration Statement and the Prospectus, such counsel has
examined information available to it, including legal records, documents
and proceedings, and has attended conferences with, among others,
representatives of the Underwriters, officers and other representatives of
the Teekay Entities and the independent public accountants for the
Partnership, at which
- 31 -
conferences the contents of the Registration Statement and the Prospectus
were discussed. Such counsel shall also state that, without undertaking to
determine independently or assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, such counsel has no reason to believe that
the Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; or that the Prospectus, as of its issue date or as of the
Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (except that such counsel need not express
any opinion or belief with respect to (i) any financial statements,
including the notes and schedules thereto and the auditor's reports, if
any thereon or (ii) other financial or statistical data included in the
Registration Statement or the Prospectus).
(f) The Partnership shall have requested and caused Xxxxxx Xxxxxxx, Senior
Vice President and General Counsel for TSC, to have furnished to you a letter,
dated the Closing Date and addressed to you, in form and substance reasonably
satisfactory to the Underwriters, which shall state that such counsel has
participated in conferences with officers and other representatives of the
Teekay Entities and the independent public accountants of the Partnership and
your representatives, at which the contents of the Registration Statement and
the Prospectus and related matters were discussed, and although such counsel has
not independently verified, is not passing on, and is not assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in, the Registration Statement and the Prospectus, no facts have come
to such counsel's attention that lead such counsel to believe that the
Registration Statement (other than (i) the financial statements included
therein, including the notes and schedules thereto and the auditors' reports
thereon, and (ii) the other financial and statistical information included
therein, as to which such counsel need not comment), as of its effective date
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (other than (i) the financial statements
included therein, including the notes and schedules thereto and the auditors'
reports thereon, and (ii) the other financial and statistical information
included therein, as to which such counsel need not comment), as of its issue
date and the Closing Date contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(g) The Partnership shall have requested and caused Noble & Xxxxxxxxxxx,
special Luxembourg counsel for the Partnership, to have furnished to you their
written opinion, dated the Closing Date and addressed to you, in form and
substance reasonably satisfactory to the Underwriters, to the effect that:
(i) Formation of Luxco. Luxco is a company duly incorporated and
validly existing under the laws of Grand-Duchy of Luxembourg
("Luxembourg") and has all requisite corporate capacity and power to
acquire and own securities and or participations in Luxembourg or foreign
corporations and to own or lease its properties
- 32 -
and conduct its business, in each case in all material respects as
described in the Registration Statement and the Prospectus.
(ii) Ownership of Luxco. The issued capital of Luxco consists of
1,500 (one thousand five hundred) shares, all of which are held by the
Operating Company, having its registered seat located at _____________ and
registered with the register of companies of ______________ under the
number ____. All the issued shares of capital stock of Luxco have been
duly authorized, validly issued, fully subscribed for in cash and are not
assessable. To such counsel's knowledge, all of the shares of capital
stock of Luxco are free of all liens, other than those liens described in
the Agreement dated February 22, 2001, entered into by, amongst others,
Naviera Teekay Gas S.L., as Borrower, and the several banks and financial
institutions named therein.
(iii) Preemptive Rights and Warrants. To such counsel's knowledge,
no warrant or other options to acquire exists with respect to any shares
of capital stock of Luxco. There are no preemptive rights or other rights
to subscribe for or to purchase any equity interests in Luxco pursuant to
the Articles of Association of Luxco dated _______________, issued by
Maitre Xxxxxx Xxxxxxxx, notary public in Luxembourg (the "Articles").
Pursuant to Article Ten of the Articles, Luxco's shares may not be
transferred to third parties (i.e. outside the realm of its shareholders)
unless shareholder representing three-quarters of the corporate capital of
Luxco have agreed thereto in a general meeting of shareholders.
(iv) [As regards the liability of the shareholders of a Luxembourg
societe a responsibilite limitee (a "s.a.r.l.", which is the form of
company under which Luxco is incorporated), article 179 of the Luxembourg
law of August 10, 1995 on commercial companies (the "Law") provides that
"soceites a responsabilite limitee are those in which a limited number of
members contribute a specific amount ___________."]
(v) [No Additional Liability. Upon the consummation of the
Transactions, the Partnership will not be liable under the laws of
Luxembourg for the liabilities of Luxco and the limited partners of the
Partnership will not be liable under the laws of Luxembourg for the
liabilities of Luxco.]
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Teekay
Entities and upon information obtained from public officials, (B) assume
that all documents submitted to them as originals are authentic, that all
copies submitted to them conform to the originals thereof, and that the
signatures on all documents examined by them are genuine, and (C) state
that their opinion is limited to the laws of Luxembourg.
(h) The Partnership shall have requested and caused
PricewaterhouseCoopers, special Luxembourg tax adviser to the Partnership, to
have furnished to you their written opinion, dated the Closing Date and
addressed to you, in form and substance reasonably satisfactory to the
Underwriters, to the effect that such adviser confirms that the discussion
contained in the Prospectus under the caption "Business -- Taxation of the
Partnership --
- 33 -
Luxembourg Taxation" is an accurate discussion of Luxembourg tax matters (except
for the representations and statements of fact of the Partnership included in
such discussion, as to which such adviser need not comment).
In rendering such opinion, such adviser may (A) rely in respect of matters
of fact upon certificates of officers and employees of the Teekay Entities and
upon information obtained from public officials, (B) assume that all documents
submitted to them as originals are authentic, that all copies submitted to them
conform to the originals thereof, and that the signatures on all documents
examined by them are genuine, and (C) state that their opinion is limited to the
laws of Luxembourg.
(i) The Partnership shall have requested and caused Uria &
Xxxxxxxx, special Spanish counsel for the Partnership, to have furnished to you
their written opinion, dated the Closing Date and addressed to you, in form and
substance reasonably satisfactory to the Underwriters, to the effect that:
(i) Formation of Spanish Subsidiaries. Each of the subsidiaries of
the Partnership listed on Schedule V (the "SPANISH SUBSIDIARIES") was duly
incorporated and is validly existing as private limited liability company
(Sociedad de responsabilidad limitada) under the laws of Spain. Each of
the Spanish Subsidiaries has corporate power to own or lease its
properties and to conduct its business, to assume the liabilities being
assumed by it pursuant to the Contribution Documents and to conduct its
business, in each case in all material respects as described in the
Registration Statement and the Prospectus.
(ii) Ownership of Spanish Subsidiaries. All of the created units of
stock of capital of each Spanish Subsidiary have been validly created and,
assuming creation against payment therefore, are fully paid. All of the
units of stock of corporate capital of the Spanish Subsidiaries are owned,
directly or indirectly, by the Operating Company free and clear of all
Liens, other than the pledges set for on Exhibit ___ (the "SPANISH
PLEDGES"). To our knowledge, there are no outstanding rights, warrants or
options to acquire, or instruments convertible or exchangeable for, any
units of stock of any Spanish Subsidiary.
(iii) Sufficiency of Transaction Documents. After giving effect to
the Transaction, each of the Contribution Documents to which a Spanish
Subsidiary is a party in a form legally sufficient under the laws of Spain
to transfer or convey to, or vest in, the Partnership, the Operating
Company and the Operating Subsidiaries all assets not already held by them
that are to be transferred or conveyed by such Contribution Documents,
subject to the conditions, reservations and limitations contained in the
Contribution Documents and those set forth in the Prospectus. The
Partnership, the Operating Company and the Operating Subsidiaries, upon
execution and delivery of the Contribution Documents, succeeded or will
succeed in all material respects under Federal law and the laws of Spain
to the business, assets, properties, liabilities and operations of the
Contributed Business as reflected in the pro forma consolidated financial
statements of the Partnership included in the Prospectus, except as
disclosed in the Prospectus and the Contribution Documents.
- 34 -
(iv) Sufficiency of Conversion. The conversion (transformacion) of
the Spanish Subsidiaries from corporations (under Spanish law, SA) to SL
became fully effective on the date of the registration of this corporate
process in the Commercial Registry of Madrid, that is to say:
(i) December 14, 2004 for Teekay Servicios Maritimos, S.L.
(ii) December 15, 2004 for Naviera Teekay Gas, S.L., Naviera Teekay
Gas II, S.L., Naviera Teekay Gas III, S.L. and Naviera Teekay
Gas IV, S.L.
(iii) December 16, 2004 for Teekay Shipping Spain, S.L.
(v) Authority and Authorization. All Spanish private limited
liability company (sociedad de responsabilidad limitada) action required
to be taken by each Spanish Subsidiary or any of its stockholders,
pursuant to the laws of Spanish for the execution and delivery by such
Spanish Subsidiary of the Operative Agreements to which it is a party and
the consummation of the transactions contemplated by such Operative
Agreements, has been validly taken.
(vi) No Preemptive Rights or Options. There are no preemptive rights
or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of any Spanish Subsidiary other than those set
forth in the Spanish Private Limited Liability Companies Act (Ley 0/0000,
xx 00 xx xxxxx, xx Xxxxxxxxxx de Responsabilidad Limitada), in the Spanish
Pledges, the Spanish credit agreements of [Naviera Teekay Gas, S.L.,
Naviera Teekay Gas II], S.L., Naviera Teekay Gas III, S.L. and Naviera
Teekay Gas IV, S.L. ("SPANISH CREDIT AGREEMENT") [and in the Credit
Agreements].
(vii) Permits. To the knowledge of such counsel after due inquiry,
each of the Spanish Subsidiaries has such permits of governmental or
regulatory authorities of Spain as are necessary to own or lease its
properties and to conduct its business, subject to such qualifications as
may be set forth in the Documents and except for such permits which, if
not obtained, reasonable could not, individually or in the aggregate, have
a material adverse effect upon the ability or the Partnership and its
subsidiaries, taken as a whole, to conduct their businesses in all
material respects in the manner described in the Prospectus; and, to the
knowledge of such counsel after due inquiry, none of the Spanish
Subsidiaries has received any notice of proceedings in Spain relating to
the revocation or modification of any such permits which, individually or
in the aggregate could reasonably be expected to have a material adverse
effect upon the ability of the Partnership and its subsidiaries, taken as
a whole, to conduct their businesses in all material respects in the
manner described in the Prospectus.
(viii) No Additional Liability. Upon the consummation of the
Transactions, the limited partners of the Partnership will not be liable
under the Laws of Spain for the liabilities of the Spanish Subsidiaries.
In rendering such opinion, such counsel may (A) rely in respect of matters
of fact upon certificates of officers and employees of the Teekay Entities and
upon information obtained from public officials, (B) assume that all documents
submitted to them as originals are authentic,
- 35 -
that all copies submitted to them conform to the originals thereof, and that the
signatures on all documents examined by them are genuine, and (C) state that
their opinion is limited to the laws of Spain.
(j) The Partnership shall have requested and caused J&A Xxxxxxxxx, X.X.,
special Spanish tax counsel to the Partnership, to have furnished to you their
written opinion, dated the Closing Date and addressed to you, in form and
substance reasonably satisfactory to the Underwriters, to the effect that such
counsel confirms that the discussion contained in the Prospectus under the
caption "Business -- Taxation of the Partnership -- Spanish Taxation" is an
accurate discussion of relevant Spanish tax matters (except for the
representations and statements of fact of the Partnership included in such
discussion, as to which such counsel need not comment).
In rendering such opinion, such adviser may (A) rely in respect of matters
of fact upon certificates of officers and employees of the Teekay Entities and
upon information obtained from public officials, (B) assume that all documents
submitted to them as originals are authentic, that all copies submitted to them
conform to the originals thereof, and that the signatures on all documents
examined by them are genuine, and (C) state that their opinion is limited to the
laws of Spain.
(k) The Partnership shall have requested and caused Xxxxxx & Partners,
special Canadian counsel for the Partnership, to have furnished to you their
written opinion, dated the Closing Date and addressed to you, in form and
substance reasonably satisfactory to the Underwriters, to the effect that in the
opinion of such counsel, the description under the caption "Business -- Taxation
of the Partnership -- Non-United States Tax Consequences -- Canadian Federal
Income Tax Consequences" is a fair summary of the material Canadian federal
income tax consequences under the Income Tax Act (Canada) to those holders of
common units acquired in the offering described therein (except that in such
opinion counsel need not address or comment on the representations and
statements of fact of the Partnership included in such description including,
without limitation, those relating to whether the activities or affairs of the
Partnership can or will be conducted in a manner that the Partnership will not
be carrying on business in Canada).
In rendering such opinion, such counsel may (A) rely in respect of matters
of fact upon certificates of officers and employees of the Teekay Entities and
upon information obtained from public officials, (B) assume that all documents
submitted to them as originals are authentic, that all copies submitted to them
conform to the originals thereof, and that the signatures on all documents
examined by them are genuine, and (C) state that their opinion is limited to the
laws of Canada.
(l) The Partnership shall have requested and caused
PricewaterhouseCoopers, special Qatari tax adviser to the Partnership, to have
furnished to you their written opinion, dated the Closing Date and addressed to
you, in form and substance reasonably satisfactory to the Underwriters, to the
effect that such adviser confirms that the discussion contained in the
Prospectus under the caption "Business -- Taxation of the Partnership -- Qatari
Taxation" is an accurate discussion of Qatari tax matters (except for the
representations and statements of fact of the Partnership included in such
discussion, as to which counsel need not comment).
- 36 -
In rendering such opinion, such advisor may (A) rely in
respect of matters of fact upon certificates of officers and employees of the
Teekay Entities and upon information obtained from public officials, (B) assume
that all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, and (C) state that their opinion is
limited to the laws of Qatar.
(m) The Representatives shall have received from Xxxxx Xxxxx
L.L.P., counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to such matters
as the Underwriters may reasonably require, and the Partnership shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(n) The Representatives shall have received from Xxxxxx &
Xxxxxx LLP, special Xxxxxxxx Islands counsel for the Underwriters, such opinion
or opinions, dated the Closing Date and addressed to the Representatives, with
respect to such matters as the Underwriters may reasonably require, and the
Partnership shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(o) Each of TSC and the General Partner shall have furnished
to the Underwriters a certificate signed by the principal executive officer and
the principal financial officer of each such entity dated the Closing Date and
addressed to the Underwriters, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus,
any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Teekay
Parties in this Agreement are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date and each
Teekay Party has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to such entities' knowledge,
threatened;
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement
thereto), there has been no material adverse effect on the general
affairs, management, condition (financial or otherwise), stockholders'
equity, partners' equity, members' equity, results of operations,
business, properties, assets or prospects of the Partnership Entities,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto); and
(iv) such other matters as you may reasonably
request.
(p) The Partnership shall have requested and caused Ernst &
Young LLP to have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters, dated respectively as of the Execution Time and as of
the Closing Date, in form and substance
-37-
reasonably satisfactory to the Representatives, confirming that they are
independent accountants with respect to the Teekay Entities within the meaning
of the Act and the applicable rules and regulations adopted by the Commission
thereunder and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included in the Registration
Statement and the Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting requirements of
the Act and the related rules and regulations adopted by the
Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Partnership and
its subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the minutes of
the meetings of the members, partners, stockholders, directors,
managers and committees of the Teekay Entities; and inquiries of
certain officials of the Partnership who have responsibility for
financial and accounting matters of the Partnership and its
subsidiaries as to transactions and events subsequent to December 31,
2004, nothing came to their attention which caused them to believe
that:
(1) said unaudited financial statements are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included in the Registration
Statement and the Prospectus;
(2) (i) with respect to the period subsequent to
December 31, 2004, there were any changes, at a specified date
not more than five days prior to the date of the letter, in
the long-term debt of Luxco and its subsidiaries (including,
without limitation, Teekay Spain) or decreases in the
consolidated net current assets (working capital) or
stockholders' equity of Luxco and its subsidiaries (including,
without limitation, Teekay Spain) as compared with the amounts
shown on the December 31, 2004 consolidated balance sheet
included in the Registration Statement and the Prospectus, or
for the period from January 1, 2005 to such specified date
there were any decreases, as compared with the corresponding
period during the preceding year in consolidated net revenues
or net income of Luxco and its subsidiaries (including,
without limitation, Teekay Spain), except in all instances for
changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Partnership as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; or
(3) the information included in the Registration
Statement and Prospectus in response to Form 20-F, Item 3A
(Selected Financial Data) and Form 20-F, Item 6B
(Compensation) is not in conformity with the applicable
disclosure requirements of Form F-1 and Form 20-F;
-38-
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived
from the general accounting records of the Partnership and its
subsidiaries) set forth in the Registration Statement and the
Prospectus, including the information set forth under the captions
"Prospectus Summary -- Summary Historical and Pro Forma Financial and
Operating Data," "Capitalization," "Dilution," "Selected Historical and
Pro Forma Financial and Operating Data," and "Management's Discussion
and Analysis of Financial Condition and Results of Operations" in the
Prospectus, agrees with the accounting records of the Partnership and
its subsidiaries, excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro
forma financial statements included in the Registration Statement and
the Prospectus (the "pro forma financial statements"); carrying out
certain specified procedures; inquiries of certain officials of the
Teekay Entities who have responsibility for financial and accounting
matters; and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which caused them
to believe that the pro forma financial statements do not comply as to
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of such statements.
References to the Prospectus in this paragraph (o) include any
supplement thereto at the date of the letter.
(q) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (o) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the general
affairs, management, condition (financial or otherwise), stockholders' equity,
partners' equity, members' equity, results of operations, business, properties,
assets or prospects of the Partnership Entities taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above, is, in
the sole judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the Units
as contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
(r) Prior to the Closing Date, the Teekay Entities shall have
furnished to the Underwriters such further information, certificates and
documents as the Underwriters may reasonably request.
(s) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the debt securities of any of the
Partnership Entities, if applicable, by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g)
-39-
under the Act) or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does not indicate
the direction of the possible change.
(t) The Units shall have been listed and admitted and
authorized for trading on the NYSE subject to official notice of issuance, and
satisfactory evidence of such actions shall have been provided to the
Underwriters.
(u) At the Execution Time, the Partnership shall have
furnished to the Underwriters a letter substantially in the form of Exhibit A
hereto from the executive officers and directors of the General Partner and of
TSC addressed to the Underwriters.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Partnership in writing or by telephone or facsimile confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Units provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Teekay Parties to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Teekay Parties will reimburse the
Underwriters severally through Citigroup Global Markets Inc. on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by them in connection with the proposed
purchase and sale of the Units.
8. Indemnification and Contribution.
(a) The Teekay Parties, jointly and severally, agree to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Units as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Teekay Parties will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based
-40-
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Teekay Parties by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Teekay Parties may
otherwise have.
(b) The Teekay Parties, jointly and severally, agree to
indemnify and hold harmless Citigroup Global Markets Inc., the directors,
officers, employees and agents of Citigroup Global Markets Inc. and each person,
who controls Citigroup Global Markets Inc. within the meaning of either the Act
or the Exchange Act (the "CITIGROUP ENTITIES"), from and against any and all
losses, claims, damages and liabilities to which they may become subject under
the Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim), insofar as such losses, claims damages or liabilities (or
actions in respect thereof) (i) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
prospectus wrapper material prepared by or with the consent of the Teekay
Parties for distribution in foreign jurisdictions in connection with the
Directed Unit Program attached to the Prospectus or any preliminary prospectus,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statement in such wrapper material, when considered in conjunction with the
Prospectus or to any applicable preliminary prospectus, not misleading; (ii)
caused by the failure of any Participant to pay for and accept delivery of the
securities which immediately following the Effective Date of the Registration
Statement, were subject to a properly confirmed agreement to purchase; or (iii)
related to, arising out of, or in connection with the Directed Unit Program,
except that this clause (iii) shall not apply to the extent that such loss,
claim, damage or liability is finally judicially determined to have resulted
primarily from the gross negligence or willful misconduct of any of the
Citigroup Entities.
(c) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Teekay Parties, each of their respective
directors, each of their respective officers who signs the Registration
Statement, and each person who controls the Teekay Parties within the meaning of
either the Act or the Exchange Act, to the same extent as the indemnity in
Section 8(a) from the Teekay Parties to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Teekay Parties by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Teekay Parties acknowledge that the
statements set forth in the last paragraph of the cover page regarding delivery
of the Units and, under the heading "Underwriting" (i) the list of Underwriters
and their respective participation in the sale of the Units, (ii) the sentences
related to concessions and reallowances, and (iii) the paragraphs related to
stabilization, syndicate covering transactions, penalty bids and electronic
online distributions constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect
-41-
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a), (b) or (c) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a), (b) or (c) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ one separate counsel (in addition to local
counsel), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld, conditioned or delayed), settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. Notwithstanding anything contained herein to the contrary,
if indemnity may be sought pursuant to Section 8(b) hereof in respect of such
action or proceeding, then in addition to such separate firm for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one separate firm (in addition to any local counsel)
for Citigroup Global Markets Inc., the directors, officers, employees and agents
of Citigroup Global Markets Inc., and all persons, if any, who control Citigroup
Global Markets Inc. within the meaning of either the Act or the Exchange Act for
the defense of any losses, claims, damages and liabilities arising out of the
Directed Unit Program.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Teekay Parties, severally and jointly,
and the Underwriters severally, agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"LOSSES") to which one or more of the Teekay Parties and one or more of the
Underwriters may be subject
-42-
in such proportion as is appropriate to reflect the relative benefits received
by the Teekay Parties on the one hand and by the Underwriters on the other from
the Offering; provided, however, that in no case shall any Underwriter (except
as may be provided in any agreement among underwriters relating to the offering
of the Units) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Units purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Teekay Parties and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Teekay Parties on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Teekay Parties shall be deemed to be
equal to the total net proceeds from the Offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Teekay Parties on the one
hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Teekay Parties and the Underwriters agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (e), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls any of the Teekay Parties within the
meaning of either the Act or the Exchange Act, each officer of the Teekay
Parties who shall have signed the Registration Statement and each director of
the Teekay Parties shall have the same rights to contribution as the Teekay
Parties, subject in each case to the applicable terms and conditions of this
paragraph (e).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Units agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Firm Units set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Firm Units set forth opposite the names of all the remaining Underwriters) the
Units which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Units which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Units set forth in Schedule
I hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Units, and if such
nondefaulting Underwriters do not purchase all the Units, this Agreement will
terminate without liability to any nondefaulting Underwriter or the Teekay
Parties. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the
-43-
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Teekay Parties and
any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Partnership prior to delivery of and payment for the Units, if at any
time prior to such time (i) trading in the Partnership's Common Units shall have
been suspended by the Commission or the NYSE, (ii) trading in securities
generally on the NYSE shall have been suspended or limited or minimum prices
shall have been established on such Exchange, (iii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Units as contemplated by the Prospectus (exclusive
of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Teekay Parties or their officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Teekay Parties
or any of the officers, directors, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Units. The provisions of Sections 7, 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Partnership, will be mailed, delivered or
telefaxed to Teekay LNG Partners L.P., TK House, Bayside Executive Park, West
Bay Street and Xxxxx Xxxx, X.X. Xxx XX-00000, Xxxxxx, Xxxxxxxxxxxx of the
Bahamas, Attn. Corporate Secretary (fax no. 000-000-0000) with a copy to Xxxxxxx
Coie LLP, 0000 X.X. Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxx 00000-0000, Attn:
Xxxxx Xxxxxxxx, (fax no. 000-000-0000).
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Judicial Proceedings.
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(a) The Teekay Parties irrevocably (i) agree that any legal
suit, action or proceeding against the Teekay Parties arising out of or based
upon this Agreement, the transactions contemplated hereby or alleged violations
of the securities laws of the United States or any state in the United States
may be instituted in any New York court, (ii) waive, to the fullest extent it
may effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding in any New York court and (iii) submits
to the exclusive jurisdiction of such courts in any such suit, action or
proceeding. Each of the Teekay Parties has appointed Xxxxxx, Xxxxxx & Xxxxxxxx,
New York, New York, as its authorized agent (the "AUTHORIZED AGENT"), upon whom
process may be served in any such action arising out of or based on this
Agreement, the transactions contemplated hereby or any alleged violation of the
securities laws of the United States or any state in the United States which may
be instituted in any New York court, expressly consents to the jurisdiction of
any such court in respect of any such action, and waives any other requirements
of or objections to personal jurisdiction with respect thereto. Such appointment
shall be irrevocable. The Teekay Parties represent and warrant that the
Authorized Agent has agreed to act as such agent for service of process and
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Teekay Parties shall be deemed, in every
respect, effective service of process upon the Teekay Parties.
(b) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Underwriters could purchase United
States dollars with such other currency in the City of New York on the business
day proceeding that on which final judgment is given. The obligations of the
Teekay Parties in respect of any sum due from it to the Underwriters shall,
notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day, following receipt by the
Underwriters of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) the Underwriters may in accordance with normal
banking procedures purchase United States dollars with such other currency; if
the United States dollars so purchased are less than the sum originally due to
the Underwriters hereunder, the Teekay Parties agree, as a separate obligation
and notwithstanding any such judgment, that the party responsible for such
judgment shall indemnify the Underwriters against such loss. If the United
States dollars so purchased are greater than the sum originally due to the
Underwriters hereunder, the Underwriters agree to pay to the Teekay Parties an
amount equal to the excess of the dollars so purchased over the sum originally
due to the Underwriters hereunder.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
-45-
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Units
that is first filed pursuant to Rule 424(b) after the Execution Time
or, if no filing pursuant to Rule 424(b) is required, shall mean the
form of final prospectus relating to the Units included in the
Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in Section 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Units and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
-46-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Teekay Parties and the several Underwriters.
Very truly yours,
TEEKAY SHIPPING CORPORATION
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
TEEKAY LNG PARTNERS L.P.
By: Teekay GP L.L.C., its general partner
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
TEEKAY GP L.L.C.
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
TEEKAY LNG OPERATING L.L.C.
By: Teekay Shipping Corporation, its sole member
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
The foregoing Agreement is hereby confirmed and accepted as of the date first
written above.
Citigroup Global Markets Inc.
UBS Securities LLC
X.X. Xxxxxxx & Sons, Inc.
Wachovia Capital Markets, LLC
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxxxx & Company, Inc.
Deutsche Bank Securities Inc.
By: CITIGROUP GLOBAL MARKETS INC.
By:
-----------------------
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
SCHEDULE I
TEEKAY LNG PARTNERS L.P.
Number of Firm
Underwriters Units to be Purchased
------------ ---------------------
Citigroup Global Markets Inc.
UBS Securities LLC
X.X. Xxxxxxx & Sons, Inc.
Wachovia Capital Markets, LLC
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxxxx & Company, Inc.
Deutsche Bank Securities Inc.
TOTAL: 5,500,000
SCHEDULE II
TEEKAY LNG PARTNERS L.P.
LIST OF OPERATING SUBSIDIARIES
Teekay Luxembourg, S.a.r.l.
Teekay Spain, S.L.
Teekay II Iberia S.L.
Teekay Shipping Spain, S.L. (formerly Naviera X. Xxxxxx, S.A.)
Granada Spirit L.L.C.
Naviera Teekay Gas, S.L. (formerly Naviera X. Xxxxxx Gas, S.A.)
Naviera Teekay Gas II, S.L. (formerly Naviera X. Xxxxxx Gas II, S.A.)
Naviera Teekay Gas III, S.L. (formerly Naviera X. Xxxxxx Gas III, S.A.)
Naviera Teekay Gas IV, S.L. (formerly Naviera X. Xxxxxx Gas IV, S.A.)
Teekay Servicos Maritimos, S.L. (formerly Naviera X. Xxxxxx Servicios Maritimos,
S.A.)
SCHEDULE III
TEEKAY LNG PARTNERS L.P.
LIST OF OTHER AGREEMENTS
DOCUMENTS RELATED TO THE GRANADA SPIRIT:
o Time Charter Party between Granada Spirit L.L.C. (owner) and Teekay
Chartering Limited dated __________, 2005
DOCUMENTS RELATED TO THE TENERIFE SPIRIT:
o Time Charter Party between Teekay Shipping Spain, S.L. and CIA.
Espanola de Petroleos, S.A. dated July 5, 2000
o Bareboat Charter Party between Petrocan de Canarias (as disponent
owner) and Teekay Shipping Spain, S.L. dated July 7, 2000
DOCUMENTS RELATED TO THE ALGECIRAS SPIRIT:
o Time Charter Party between Teekay Shipping Spain, S.L. and CIA.
Espanola de Petroleos, S.A. dated October 2, 2000
o Bareboat Charter Party between Petrocan de Canarias (disponent owner)
and Teekay Shipping Spain, S.L. dated October 2, 2000
DOCUMENTS RELATED TO THE HUELVA SPIRIT:
o Time Charter Party between Teekay Shipping Spain, S.L. and CIA.
Espanola de Petroleos, S.A. dated March 20, 2001
o Bareboat Charter Party between Petrocan de Canarias (disponent owner)
and Teekay Shipping Spain, S.L. dated March 20, 2001
DOCUMENTS RELATED TO THE TEIDE SPIRIT:
o Time Charter Party between Teekay Shipping Spain, S.L. and CIA.
Espanola de Petroleos, S.A. dated October 25, 2004
o Bareboat Charter between CIA. Espanola de Petroleos, S.A. and Teekay
Shipping Spain, S.L. dated October 25, 2004
DOCUMENTS RELATED TO THE TOLEDO SPIRIT:
o Shipbuilding Contract for the Construction and Sale of Hull No. 5271
(Toledo Spirit) between Teekay Shipping Spain, S.L. and Daewoo
Shipbuilding & Marine Engineering Co., Ltd. dated January 30, 2003
o Memorandum of Understanding between Teekay Shipping Spain, S.L.,
Teekay Shipping Corporation and CIA. Espanola de Petroleos, S.A. dated
April 29, 2004
DOCUMENTS RELATED TO THE HISPANIA SPIRIT:
o Time Charter Party between Repsol YPF Trading y Transporte S.A. and
Naviera Teekay Gas, S.L. dated Feb. 22, 2001
DOCUMENTS RELATED TO THE CATALUNYA SPIRIT:
o Time Charter Party between Repsol YPF S.A. and Naviera Teekay Gas III,
S.L. dated July 31, 2000
o Bareboat Charter between Poseidon Gas AIE and Naviera Teekay Gas III,
S.L. dated October 2, 2000
DOCUMENTS RELATED TO THE MADRID SPIRIT:
o Time Charter Party between Repsol YPF Trading y Transporte S.A. (Ch)
and Naviera Teekay Gas IV, S.L. (owner) dated Nov. 19, 2001
o Bareboat Charter between Pagumar AIE and Naviera Teekay Gas IV, S.L.
dated December 30, 2003
DOCUMENTS RELATED TO THE GALICIA SPIRIT:
o Time Charter Party between Union Electrica Fenosa, S.A. (Ch) and
Naviera Teekay Gas II, S.L. (owner) dated June 28, 2001
SCHEDULE IV
TEEKAY LNG PARTNERS L.P.
LIST OF XXXXXXXX ISLANDS SUBSIDIARIES
Teekay LNG Operating L.L.C.
Granada Spirit L.L.C.
SCHEDULE V
TEEKAY LNG PARTNERS L.P.
LIST OF SPANISH SUBSIDIARIES
Teekay Shipping Spain, S.L. (formerly Naviera X. Xxxxxx S.A.)
Naviera Teekay Gas, S.L. (formerly Naviera X. Xxxxxx Gas, S.A.)
Naviera Teekay Gas II, S.L. (formerly Naviera X. Xxxxxx Gas II, S.A.)
Naviera Teekay Gas III, S.L. (formerly Naviera X. Xxxxxx Gas III, S.A.)
Naviera Teekay Gas IV, S.L. (formerly Naviera X. Xxxxxx Gas IV, S.A.)
Teekay Servicios Maritimos, S.L.
Teekay Spain, S.L.
Teekay II Iberia S.L.
EXHIBIT A
[FORM OF LOCK-UP AGREEMENT]
TEEKAY LNG PARTNERS L.P.
PUBLIC OFFERING OF COMMON UNITS
__________, 2005
Citigroup Global Markets Inc.
UBS Securities LLC
X.X. Xxxxxxx & Sons, Inc.
Wachovia Capital Markets, LLC
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxxxx & Company, Inc.
Deutsche Bank Securities Inc.
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Teekay Shipping
Corporation, a Xxxxxxxx Islands corporation, Teekay LNG Partners L.P., a
Xxxxxxxx Islands limited partnership (the "Partnership"), Teekay GP L.L.C., a
Xxxxxxxx Islands limited liability company, and Teekay LNG Operating L.L.C., a
Xxxxxxxx Islands limited liability company, and each of you as Underwriters
named therein, relating to an underwritten public offering of common units
representing limited partner interests in the Partnership ("Common Units").
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge
or otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
Common Units or any securities convertible into, or exercisable or exchangeable
for such Common Units, or publicly announce an intention to effect any such
transaction, during the period commencing on the date hereof and ending 180 days
after the date of the Underwriting Agreement (the "Restricted Period"), other
than dispositions of Common Units by gift to the undersigned's immediate family
members, to trusts established for the benefit of the undersigned's immediate
family members or to charitable
organizations (provided that any such person, trust or charitable organization
agrees as a condition to receiving such gift to be bound by the terms of the
foregoing terms of this sentence).
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated
Very truly yours,
_________________________________________
_________________________________________
_________________________________________
EXHIBIT B
TEEKAY LNG PARTNERS L.P.
LIST OF VESSELS AND OWNERS
JURISDICTION OF
OPERATING LNG VESSELS OWNER REGISTRATION
--------------------- ----- ---------------
Hispania Spirit Naviera Teekay Gas, S.L. Spain
Galacia Spirit Naviera Teekay Gas II, S.L. Spain
Catalunya Spirit Naviera Teekay Gas III, S.L. Spain
Madrid Spirit Naviera Teekay Gas IV, S.L. Spain
LNG NEWBUILDINGS OWNER
---------------- -----
Hull No. 2238 Teekay Nakilat Corporation Bahamas (expected)
Hull No. 2239 Teekay Nakilat Corporation Bahamas (expected)
Hull No. 2240 Teekay Nakilat Corporation Bahamas (expected)
OPERATING SUEZMAX TANKERS OWNER
------------------------- -----
Granada Spirit Granada Spirit L.L.C. Spain
Tenerife Spirit Teekay Shipping Spain, S.L. Spain
Algeciras Spirit Teekay Shipping Spain, S.L. Spain
Huelva Spirit Teekay Shipping Spain, S.L. Spain
Teide Spirit Teekay Shipping Spain, S.L. Spain
SUEZMAX NEWBUILDING OWNER
------------------- -----
Toledo Spirit Teekay Shipping Spain, S.L. Spain
