COMMON UNIT PURCHASE AGREEMENT by and among TEEKAY OFFSHORE PARTNERS L.P. and THE PURCHASERS NAMED ON SCHEDLUE A HERETO
Exhibit 10.1
Execution Version
by and among
TABLE OF CONTENTS
ARTICLE I DEFINITIONS |
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Section 1.1 Definitions |
1 | |||
ARTICLE II AGREEMENT TO SELL AND PURCHASE |
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Section 2.1 Sale and Purchase |
4 | |||
Section 2.2 Closing |
5 | |||
Section 2.3 Mutual Conditions |
5 | |||
Section 2.4 Each Purchaser’s Conditions |
6 | |||
Section 2.5 The Partnership’s Conditions |
6 | |||
Section 2.6 Partnership Deliveries |
7 | |||
Section 2.7 Purchaser Deliveries |
8 | |||
Section 2.8 Independent Nature of Purchasers’ Obligations and Rights |
9 | |||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP |
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Section 3.1 Existence |
9 | |||
Section 3.2 Purchased Units; Capitalization |
10 | |||
Section 3.3 Subsidiaries |
10 | |||
Section 3.4 No Conflict |
11 | |||
Section 3.5 No Default |
11 | |||
Section 3.6 Authority |
12 | |||
Section 3.7 Approvals |
12 | |||
Section 3.8 Compliance with Laws |
12 | |||
Section 3.9 Due Authorization |
12 | |||
Section 3.10 Valid Issuance; No Options or Preemptive Rights |
13 | |||
Section 3.11 No Registration Rights |
13 | |||
Section 3.12 Periodic Reports |
13 | |||
Section 3.13 Litigation |
14 | |||
Section 3.14 Insurance |
14 | |||
Section 3.15 Internal Accounting Controls |
14 | |||
Section 3.16 No Material Adverse Change |
14 | |||
Section 3.17 Certain Fees |
15 | |||
Section 3.18 No Side Agreements |
15 | |||
Section 3.19 No Registration |
15 | |||
Section 3.20 No Integration |
15 | |||
Section 3.21 Investment Company Status |
15 |
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Section 3.22 Form F-3 Eligibility |
15 | |||
Section 3.23 Passive Foreign Investment Company |
15 | |||
Section 3.24 Tax Status |
16 | |||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS |
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Section 4.1 Existence |
16 | |||
Section 4.2 Authorization, Enforceability |
16 | |||
Section 4.3 No Breach |
16 | |||
Section 4.4 Certain Fees |
17 | |||
Section 4.5 No Side Agreements |
17 | |||
Section 4.6 Investment |
17 | |||
Section 4.7 Nature of Purchaser |
18 | |||
Section 4.8 Restricted Securities |
18 | |||
Section 4.9 Legend |
18 | |||
Section 4.10 Short Selling |
18 | |||
Section 4.11 Trading Activities |
18 | |||
Section 4.12 Short Selling Acknowledgement and Agreement |
19 | |||
ARTICLE V COVENANTS |
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Section 5.1 Taking of Necessary Action |
19 | |||
Section 5.2 Other Actions |
19 | |||
Section 5.3 Payment and Expenses |
19 | |||
Section 5.4 Use of Proceeds |
20 | |||
Section 5.5 Termination Fee |
20 | |||
ARTICLE VI INDEMNIFICATION |
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Section 6.1 Indemnification by the Partnership |
20 | |||
Section 6.2 Indemnification by Purchasers |
21 | |||
Section 6.3 Indemnification Procedure |
21 | |||
ARTICLE VII MISCELLANEOUS |
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Section 7.1 Interpretation and Survival of Provisions |
22 | |||
Section 7.2 Survival of Provisions |
22 | |||
Section 7.3 No Waiver; Modifications in Writing |
23 | |||
Section 7.4 Binding Effect; Assignment |
23 |
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Section 7.5 Communications |
24 | |||
Section 7.6 Removal of Legend |
25 | |||
Section 7.7 Entire Agreement |
25 | |||
Section 7.8 Governing Law |
25 | |||
Section 7.9 Execution in Counterparts |
25 | |||
Section 7.10 Termination |
26 | |||
Section 7.11 Recapitalization, Exchanges, Etc. Affecting the Common Units |
26 | |||
Section 7.12 Disclosure |
27 |
Schedule A — List of Purchasers and Commitment Amounts |
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Schedule B — Notice and Contact Information |
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Schedule C — Operating Subsidiaries and Ownership |
Exhibit A — Form of Registration Rights Agreement |
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Exhibit B — Sevan FPSO Acquisition Terms |
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Exhibit C — Form of Opinion of Xxxxxxx Coie L.L.P. |
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Exhibit D — Form of Opinion of Xxxxxx, Xxxxxx & Xxxxxxxx LLP |
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This COMMON UNIT PURCHASE AGREEMENT, dated as of November 9, 2011 (this “Agreement”),
is by and among TEEKAY OFFSHORE PARTNERS L.P., a Xxxxxxxx Islands limited partnership (the
“Partnership”), and each of the purchasers listed on Schedule A hereof (each a
“Purchaser” and collectively, the “Purchasers”).
WHEREAS, to fund a portion of the purchase price of (i) the Acquisition and (ii) the BG
Shuttle Tankers (each, as defined below), the Partnership desires to sell to the Purchasers, and
the Purchasers desire to purchase from the Partnership, certain Common Units (as defined below), in
accordance with the provisions of this Agreement; and
WHEREAS, the Partnership and the Purchasers will enter into a registration rights agreement
(the “Registration Rights Agreement”), substantially in the form attached hereto as
Exhibit A, pursuant to which the Partnership will provide the Purchasers with certain
registration rights with respect to the Common Units acquired pursuant hereto.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Partnership and each of the Purchasers, severally and not jointly, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, and unless the context requires a
different meaning, the following terms have the meanings indicated:
“Acquisition” means the acquisition by the Partnership of the FPSO vessel known as the
Sevan Piranema substantially in accordance with the applicable terms set forth on Exhibit B.
“Affiliate” means, with respect to any Person, any other Person that directly or
indirectly through one or more intermediaries controls, is controlled by or is under common control
with, the Person in question. As used herein, the term “control” means the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning set forth in the introductory paragraph.
“BG Shuttle Tankers” means four newbuild shuttle tankers ordered scheduled to be
delivered in 2013 and provide services for a subsidiary of BG Group plc in Brazil.
“Business Day” means a day other than (i) a Saturday or Sunday or (ii) any day on
which banks located in New York, New York, U.S.A. are authorized or obligated to close.
“Closing” has the meaning specified in Section 2.2.
“Closing Date” has the meaning specified in Section 2.2.
“Commission” means the United States Securities and Exchange Commission.
“Common Unit Price” has the meaning specified in Section 2.1(b).
“Common Units” means the Common Units representing limited partnership interests in
the Partnership having the rights and obligations specified in the Partnership Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, and the rules and regulations of the Commission promulgated thereunder.
“General Partner” means Teekay Offshore GP L.L.C., a Xxxxxxxx Islands limited
liability company.
“Governmental Authority” means, with respect to a particular Person, any country,
state, county, city and political subdivision in which such Person or such Person’s Property is
located or that exercises valid jurisdiction over any such Person or such Person’s Property, and
any court, agency, department, commission, board, bureau or instrumentality of any of them and any
monetary authority that exercises valid jurisdiction over any such Person or such Person’s
Property. Unless otherwise specified, all references to Governmental Authority herein with respect
to the Partnership mean a Governmental Authority having jurisdiction over the Partnership, its
Subsidiaries or any of their respective Properties.
“Indemnified Party” has the meaning specified in Section 6.3.
“Indemnifying Party” has the meaning specified in Section 6.3.
“Law” means any federal, state, local or foreign order, writ, injunction, judgment,
settlement, award, decree, statute, law, rule or regulation.
“Lien” means any mortgage, claim, encumbrance, pledge, lien (statutory or otherwise),
security agreement, conditional sale or trust receipt or a lease, consignment or bailment,
preference or priority or other encumbrance upon or with respect to any property of any kind;
provided, however, that any charter or services contracts to which the Partnership’s vessels are
subject shall not be deemed Liens.
“Xxxxxxxx Islands LLC Act” means the Xxxxxxxx Islands Limited Liability Company Act.
“Xxxxxxxx Islands LP Act” means the Xxxxxxxx Islands Limited Partnership Act.
“Material Adverse Effect” has the meaning specified in Section 3.1.
“NYSE” means The New York Stock Exchange, Inc.
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“OLP GP” means Teekay Offshore Operating GP L.L.C., a Xxxxxxxx Islands limited
liability company.
“Operating Company” means Teekay Offshore Operating L.P., a Xxxxxxxx Islands limited
partnership.
“Operative Documents” means, collectively, this Agreement and the Registration Rights
Agreement or any amendments, supplements, continuations or modifications thereto.
“Partnership” has the meaning set forth in the introductory paragraph.
“Partnership Agreement” means the First Amended and Restated Agreement of Limited
Partnership of the Partnership dated December 19, 2006, as amended to date.
“Partnership Entities” and each a “Partnership Entity” means the General
Partner, the Partnership and each of the Partnership’s Subsidiaries, other than those Subsidiaries
which, individually or in the aggregate, would not constitute a “significant subsidiary” as defined
in Regulation S-X.
“Partnership Related Parties” has the meaning specified in Section 6.2.
“Partnership SEC Documents” has the meaning specified in Section 3.12.
“Person” means an individual or a corporation, limited liability company, partnership,
joint venture, trust, unincorporated organization, association, government agency or political
subdivision thereof or other form of entity.
“Property” means any interest in any kind of property or asset, whether real, personal
or mixed, or tangible or intangible.
“Purchase Price” means, with respect to a particular Purchaser, the amount set forth
opposite such Purchaser’s name under the column titled “Purchase Price” set forth on Schedule
A hereto.
“Purchased Units” means, with respect to a particular Purchaser, the number of Common
Units set forth opposite such Purchaser’s name under the column titled “Common Units” set forth on
Schedule A.
“Purchaser” and “Purchasers” have the meanings set forth in the introductory
paragraph.
“Purchaser Related Parties” has the meaning specified in Section 6.1.
“Registration Rights Agreement” has the meaning set forth in the recitals hereto.
“Representatives” of any Person means the Affiliates, officers, directors, managers,
employees, agents, counsel, accountants, investment bankers and other representatives of such
Person.
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“Securities Act” means the Securities Act of 1933, as amended from time to time, and
the rules and regulations of the Commission promulgated thereunder.
“Sevan” means Sevan Marine ASA, a Norwegian company.
“Short Sales” means, without limitation, all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and
forward sale contracts, options, puts, calls, short sales, “put equivalent positions” (as defined
in Rule 16a-1(h) under the Exchange Act) and similar arrangements, and sales and other transactions
through non-U.S. broker dealers or foreign regulated brokers.
“Subsidiary” means, as to any Person, any corporation or other entity of which: (i)
such Person or a Subsidiary of such Person is a general partner or manager; (ii) at least a
majority of the outstanding equity interest having by the terms thereof ordinary voting power to
elect a majority of the board of directors or similar governing body of such corporation or other
entity (irrespective of whether or not at the time any equity interest of any other class or
classes of such corporation or other entity shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more of its Subsidiaries; or (iii) any corporation or other entity as to which
such Person consolidates for accounting purposes.
“Teekay” means Teekay Corporation, a Xxxxxxxx Islands company.
“Termination Fee” has the meaning specified in Section 5.5.
“Walled Off Person” shall have the meaning set forth in Section 4.5.
ARTICLE II
AGREEMENT TO SELL AND PURCHASE
Section 2.1 Sale and Purchase.
(a) Subject to the terms and conditions hereof, the Partnership hereby agrees to issue and
sell to each Purchaser and each Purchaser hereby agrees, severally and not jointly, to purchase
from the Partnership, its respective Purchased Units, and each Purchaser agrees, severally and not
jointly, to pay the Partnership the Common Unit Price for each Purchased Unit as set forth in
paragraph (b) below. The obligations of each Purchaser under this Agreement are independent of the
obligations of each other Purchaser, and the failure or waiver of performance by any Purchaser does
not excuse performance by any other Purchaser or by the Partnership.
(b) The amount per Common Unit each Purchaser will pay to the Partnership to purchase the
Purchased Units (the “Common Unit Price”) hereunder shall be $23.90; provided however, that
if the Closing Date is after the record date for the distribution to the Partnership’s holders of
Common Units with respect to the quarter ending December 31, 2011 (the Partnership
anticipates paying the distribution on or about February 13, 2012), the Common Unit Price
shall be reduced by an amount equal to such per unit distribution and Schedule A shall be
updated accordingly.
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Section 2.2 Closing. Subject to the terms and conditions hereof, the consummation of
the purchase and sale of the Purchased Units hereunder (the “Closing”) shall take place at
the offices of Xxxxxxx Coie LLP, 0000 X.X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000-0000, or such other
location as mutually agreed by the parties, and upon the later to occur of (i) the first Business
Day following the satisfaction or waiver of the conditions set forth in Sections 2.3, 2.4 and 2.5
(other than those conditions that are by their terms to be satisfied at the Closing) and (ii) the
closing of the Acquisition; provided, however, that if such later event is the closing of the
Acquisition, then the Closing shall occur concurrently therewith (the date of such closing, the
“Closing Date”).
Section 2.3 Mutual Conditions. The respective obligations of each party to consummate
the purchase and issuance and sale of the Purchased Units shall be subject to the satisfaction on
or prior to the Closing Date of each of the following conditions (any or all of which may be waived
by a party on behalf of itself in writing, in whole or in part, to the extent permitted by
applicable Law):
(a) no Law shall have been enacted or promulgated, and no action shall have been taken, by any
Governmental Authority of competent jurisdiction that temporarily, preliminarily or permanently
restrains, precludes, enjoins or otherwise prohibits the consummation of the transactions
contemplated hereby or makes the transactions contemplated hereby illegal;
(b) there shall not be pending any suit, action or proceeding by any Governmental Authority
seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement;
(c) (i) the material conditions associated with Teekay’s acquisition from Sevan of the FPSO
vessel known as the Sevan Hummingbird shall have been satisfied and the Partnership shall have
notified the Purchasers of Teekay’s intent to effect such acquisition no later than five Business
Days after the Closing Date and (ii) the Partnership shall have notified the Purchasers of Teekay’s
intent to enter into an agreement with Sevan to acquire the FPSO vessel known as the Sevan Voyageur
no later than five Business Days after the Closing Date, in each case substantially in accordance
with the applicable terms set forth in Exhibit B;
(d) the material conditions associated with the closing of the Acquisition shall have occurred
and the Partnership shall have notified Purchasers of its intent to effect the Acquisition no later
than five Business Days following the Closing Date; and
(e) the Partnership shall have received or be entitled to receive at Closing, pursuant to
binding commitments as to which all conditions precedent to funding (other than conditions that are
by their terms to be satisfied at Closing) have been satisfied or waived, equity funding for the
Acquisition of not less than $125 million (including the aggregate Purchase Price set forth on
Schedule A).
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Section 2.4 Each Purchaser’s Conditions. The obligation of each Purchaser to
consummate the purchase of its Purchased Units shall be subject to the satisfaction on or prior to
the Closing Date of each of the following conditions (any or all of which may be waived by a
particular Purchaser on behalf of itself in writing with respect to its Purchased Units, in whole
or in part, to the extent permitted by applicable Law):
(a) The Partnership shall have performed and complied with the covenants and agreements
contained in this Agreement that are required to be performed and complied with by the Partnership
on or prior to the Closing Date;
(b) (i) The representations and warranties of the Partnership contained in this Agreement that
are qualified by materiality or a Material Adverse Effect shall be true and correct when made and
as of the Closing Date as if made on and as of the Closing Date (except that any such
representations and warranties made as of a specific date shall be required to be true and correct
as of such date only) and (ii) all other representations and warranties of the Partnership shall be
true and correct in all material respects as of the Closing Date as if made on and as of the
Closing Date (except that any such representations and warranties made as of a specific date shall
be required to be true and correct in all material respects as of such date only);
(c) The NYSE shall have authorized, upon official notice of issuance, the listing of the
Purchased Units;
(d) No notice of delisting from the NYSE shall have been received by the Partnership with
respect to the Common Units;
(e) The Partnership shall have delivered, or caused to be delivered, to the Purchasers at the
Closing, the Partnership’s closing deliveries described in Section 2.6;
(f) Since the date of this Agreement, no Material Adverse Effect shall have occurred and be
continuing; and
(g) The execution and delivery by the Partnership of the Registration Rights Agreement.
Section 2.5 The Partnership’s Conditions. The obligation of the Partnership to
consummate the sale of the Purchased Units to a Purchaser shall be subject to the satisfaction on
or prior to the Closing Date of each of the following conditions with respect to such Purchaser
(any or all of which may be waived by the Partnership in writing, in whole or in part, to the
extent permitted by applicable Law):
(a) the representations and warranties of such Purchaser contained in this Agreement that are
qualified by materiality shall be true and correct when made and as of the Closing Date (except
that any such representations and warranties made as of a specific date shall be required to be
true and correct as of such date only) and all other representations and warranties of such
Purchaser shall be true and correct in all material respects as of the Closing Date (except that
any such representations of such Purchaser made as of a specific date shall be required to be true
and correct in all material respects as of such date only); and
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(b) such Purchaser shall have delivered, or caused to be delivered, to the Partnership at the
Closing such Purchaser’s closing deliveries described in Section 2.7.
By acceptance of the Purchased Units, each Purchaser shall be deemed to have represented to
the Partnership that such Purchaser has performed and complied with the covenants and agreements
contained in this Agreement that are required to be performed and complied with by it on or prior
to the Closing Date; and the representations and warranties of such Purchaser contained in this
Agreement that are qualified by materiality are true and correct as of the Closing Date (except
that any such representations and warranties made as of a specific date shall be required to be
true and correct as of such date only) and all other representations and warranties of such
Purchaser are true and correct in all material respects as of the Closing Date (except that any
such representations and warranties made as of a specific date shall be required to be true and
correct in all material respects as of such date only).
Section 2.6 Partnership Deliveries. At the Closing, subject to the terms and
conditions hereof, the Partnership will deliver, or cause to be delivered, to each Purchaser:
(a) The Purchased Units by either (i) electronic delivery to The Depository Trust Company on
Purchasers’ behalf, registered in such name(s) as Purchasers have designated or (ii) physical
certificate(s) to the address(es) provided by the Purchasers, in such name(s) as Purchasers have
designated, at the option of the Purchasers;
(b) Copies of (i) the Certificate of Limited Partnership of the Partnership and (ii) the
Certificate of Formation of the General Partner, each certified by the Registrar of Corporations of
the Republic of the Xxxxxxxx Islands as of a recent date;
(c) A certificate of the Registrar of Corporations of the Republic of the Xxxxxxxx Islands,
dated a recent date, to the effect that each of the General Partner and the Partnership is in good
standing;
(d) A cross-receipt executed by the Partnership and delivered to such Purchaser certifying
that it has received the Purchase Price from such Purchaser as of the Closing Date;
(e) An opinion addressed to the Purchasers from Xxxxxxx Coie L.L.P., legal counsel to the
Partnership, dated as of the Closing Date, in the form and substance attached hereto as Exhibit
C;
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(f) An opinion, addressed to the Purchasers from Xxxxxx, Xxxxxx & Xxxxxxxx LLP, special
Xxxxxxxx Islands counsel to the Partnership, dated as of the Closing Date, in the form and
substance attached hereto as Exhibit D;
(g) A certificate, dated the Closing Date and signed by the Chief Executive Officer and the
Chief Financial Officer of the General Partner, on behalf of the Partnership, in his capacities as
such, stating that:
(i) The Partnership has performed and complied with the covenants and agreements
contained in this Agreement that are required to be performed and complied with by the
Partnership on or prior to the Closing Date; and
(ii) The representations and warranties of the Partnership contained in this Agreement
that are qualified by materiality or Material Adverse Effect were true and correct when made
and are true and correct as of the Closing Date and all other representations and warranties
of the Partnership were true and correct in all material respects when made and are true and
correct in all material respects as of the Closing Date; in each case as though made at and
as of the Closing Date (except that representations and warranties made as of a specific
date shall be required to be true and correct or true and correct in all material respects,
as applicable, as of such date only); and
(h) A certificate of the Secretary or Assistant Secretary of the General Partner, on behalf of
the Partnership, certifying as to (1) the Certificate of Limited Partnership of the Partnership and
the Partnership Agreement, (2) the Certificate of Formation of the General Partner and its Limited
Liability Company Agreement, (3) board resolutions authorizing the execution and delivery of the
Operative Documents and the consummation of the transactions contemplated thereby, including the
issuance of the Purchased Units and (4) the signatures of the officers executing the Operative
Documents.
Section 2.7 Purchaser Deliveries. At the Closing, subject to the terms and conditions
hereof, each Purchaser will deliver, or cause to be delivered, to the Partnership:
(a) Payment to the Partnership of the Purchase Price set forth opposite such Purchaser’s name
under the column titled “Purchase Price” on Schedule A hereto by wire transfer of
immediately available funds to an account designated by the Partnership in writing at least two
Business Days prior to the Closing Date;
(b) A cross-receipt executed by such Purchaser and delivered to the Partnership certifying
that it has received its Purchased Units as of the Closing Date; and
(c) The executed Registration Rights Agreement.
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Section 2.8 Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Operative Document are several and not joint
with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for
the performance of the obligations of any other Purchaser under any Operative Document. Nothing
contained herein or in any other Operative Document, and no action taken by any Purchaser pursuant
thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Purchasers are in any way
acting in concert or as a group with respect to such obligations or the transactions contemplated
by the Operative Documents. Each Purchaser shall be entitled to independently protect and enforce
its rights, including without limitation, the rights arising out of this Agreement or out of the
other Operative Documents, and it shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP
The Partnership represents and warrants to each Purchaser as follows:
Section 3.1 Existence. Each of the Partnership Entities has been duly incorporated or
formed, as the case may be, and is validly existing as a limited liability company, limited
partnership or corporation, as the case may be, in good standing under the Laws of its jurisdiction
of incorporation or formation, as the case may be, and has the full limited liability company,
limited partnership or corporate, as the case may be, power and authority, and has all governmental
licenses, authorizations, consents and approvals, necessary to own, lease or hold its Properties
and assets and to conduct the businesses in which it is engaged, and is duly registered or
qualified to do business and 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 business requires such qualification, except where the
failure to so register or qualify would not reasonably be expected to (i) have, individually or in
the aggregate, a material adverse effect on the condition (financial or other), results of
operations, securityholders’ equity, Properties, business, assets or prospects of the Partnership
Entities taken as a whole, the ability of the Partnership Entities to meet their obligations under
the Operative Documents or the ability of the Partnership Entities to consummate the transactions
under any Operative Document on a timely basis (except, in each case, to the extent any such
material adverse effect after the date hereof results from, arises out of or relates to: (A) the
announcement of the transactions contemplated by this Agreement or of the Acquisition or the
satisfaction of the obligations set forth herein, (B) a general deterioration in the economy or
changes in the general state of the industries in which the Partnership Entities operate, except to
the extent that the Partnership Entities, taken as a whole, are adversely affected in a
disproportionate manner as compared to other industry participants, (C) the outbreak or escalation
of hostilities involving the United States, the declaration by the United States of a national
emergency or war or the occurrence of any other calamity or crisis, including acts of terrorism,
(D) changes in accounting principles or regulations imposed upon the Partnership Entities or their
businesses applicable generally or to such industries or (E) changes in Laws applicable to the
Partnership Entities or
their businesses) (a “Material Adverse Effect”) or (ii) subject the limited partners
of the Partnership to any material liability or disability.
9
Section 3.2 Purchased Units; Capitalization.
(a) On the Closing Date, the Purchased Units shall have those rights, preferences, privileges
and restrictions governing the Common Units as set forth in the Partnership Agreement.
(b) The General Partner is the sole general partner of the Partnership, with a 2.0% general
partner interest in the Partnership; such general partner interest is the only general partner
interest of the Partnership that is issued and outstanding; and such general partner interest has
been duly authorized and validly issued and is owned by the General Partner free and clear of any
Liens (except restrictions on transferability contained in the Partnership Agreement).
(c) As of the date of this Agreement, prior to the issuance and sale of the Purchased Units,
as contemplated hereby, the issued and outstanding limited partner interests of the Partnership
consist of 63,513,580 Common Units and the Incentive Distribution Rights (as defined in the
Partnership Agreement). All outstanding Common Units and 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 such nonassessability may be affected by
Sections 30, 41, 51 and 60 of the Xxxxxxxx Islands LP Act).
(d) The Common Units are listed on the NYSE, and the Partnership has not received any notice
of delisting.
Section 3.3 Subsidiaries.
(a) The Partnership owns a 100% membership interest in OLP GP; such membership interest has
been duly authorized and validly issued in accordance with the limited liability company agreement
of OLP GP and is fully paid (to the extent required under such agreement) and nonassessable (except
as such nonassessability may be affected by Section 51 of the Xxxxxxxx Islands LLC Act); and the
Partnership owns such membership interest free and clear of all Liens except for Liens pursuant to
credit agreements and related security agreements disclosed or referred to in the Partnership SEC
Documents.
(b) The Partnership directly owns a 99.09% limited partner interest in the Operating Company
and OLP GP directly owns a 0.91% general partner interest in the Operating Company; such partner
interests have been duly authorized and validly issued in accordance with the partnership agreement
of the Operating Company and are fully paid (to the extent required under such agreement) and, with
respect to the limited partner interests, are nonassessable (except as such nonassessability may be
affected by Sections 30, 41, 51 and 60 of the Xxxxxxxx Islands LP
Act); and the Partnership and OLP GP own such partner interests free and clear of all Liens
except for Liens pursuant to credit agreements and related security agreements disclosed or
referred to in the Partnership SEC Documents.
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(c) The Partnership and the Operating Company own, directly or indirectly, the equity
interests of the Subsidiaries as described on Schedule C; such equity interests have been duly
authorized and validly issued in accordance with the organizational documents of each Subsidiary,
and are fully paid (to the extent required under such organizational documents) 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 Partnership and the Operating Company,
as applicable, own such equity interests free and clear of all Liens except for Liens pursuant to
credit agreements and related security agreements disclosed or referred to in the Partnership SEC
Documents.
Section 3.4 No Conflict. None of (i) the offering, issuance and sale by the
Partnership of the Purchased Units and the application of the proceeds therefrom, (ii) the
execution, delivery and performance of the Operative Documents by the Partnership, or (iii) the
consummation of the transactions contemplated hereby or thereby conflicts or will conflict with, or
results or will result in a breach or violation of or imposition of any Lien upon any Property or
assets of the Partnership Entities pursuant to, (A) the formation or governing documents of any of
the Partnership Entities, (B) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to
which any of the Partnership Entities is a party, by which any of them is bound or to which any of
their respective Properties or assets is subject, or (C) any Law applicable to any of the
Partnership Entities or injunction of any court or governmental agency or body to which any of the
Partnership Entities of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over any of the Partnership Entities or any of
their Properties, except in the case of clause (B) for such conflict, breach, violation or default
that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
Section 3.5 No Default. None of the Partnership Entities is in violation or default
of (i) any provision of its respective formation or governing documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a party, by which it is
bound or to which its property is subject, or (iii) any Law of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction over
the Partnership Entities or any of their Properties, as applicable, except, in the case of clauses
(ii) or (iii), as would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
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Section 3.6 Authority. On the Closing Date, the Partnership will have all requisite
power and authority to issue, sell and deliver the Purchased Units, in accordance with and upon the
terms and conditions
set forth in this Agreement and the Partnership Agreement. On the Closing Date, all
partnership or limited liability company action, as the case may be, required to be taken by the
General Partner and the Partnership for the authorization, issuance, sale and delivery of the
Purchased Units, the execution and delivery of the Operative Documents and the consummation of the
transactions contemplated hereby and thereby shall have been validly taken. No approval from the
holders of outstanding Common Units is required under the Partnership Agreement or the rules of the
NYSE in connection with the Partnership’s issuance and sale of the Purchased Units to the
Purchasers.
Section 3.7 Approvals. Except as required by the Commission in connection with the
Partnership’s obligations under the Registration Rights Agreement, no authorization, consent,
approval, waiver, license, qualification or written exemption from, nor any filing, declaration,
qualification or registration with, any Governmental Authority or any other Person is required in
connection with the execution, delivery or performance by the Partnership of any of the Operative
Documents to which it is a party or the Partnership’s issuance and sale of the Purchased Units,
except (i) as may be required under the state securities or “Blue Sky” Laws, or (ii) where the
failure to receive such authorization, consent, approval, waiver, license, qualification or written
exemption or to make such filing, declaration, qualification or registration would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
Section 3.8 Compliance with Laws. As of the date hereof, neither the Partnership nor
any of its Subsidiaries is in violation of any Law applicable to the Partnership or its
Subsidiaries, except as would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect. The Partnership and its Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate regulatory authorities necessary to conduct
their respective businesses, except where the failure to possess such certificates, authorizations
or permits would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and neither the Partnership nor any such Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate, authorization or
permit, except where such potential revocation or modification would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
Section 3.9 Due Authorization. Each of the Operative Documents has been duly and
validly authorized and has been or, with respect to the Operative Documents to be delivered at the
Closing Date, will be, validly executed and delivered by the Partnership or the General Partner, as
the case may be, and constitutes, or will constitute, the legal, valid and binding obligations of
the Partnership or the General Partner, as the case may be, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors’ rights and by general
principles of equity, including principles of commercial reasonableness, fair dealing and good
faith.
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Section 3.10 Valid Issuance; No Options or Preemptive Rights. The Purchased Units to
be issued and sold by the Partnership to each Purchaser hereunder have been duly authorized in
accordance with the Partnership Agreement and, when issued and delivered against payment therefor
pursuant to this Agreement, will be validly issued in accordance with the Partnership Agreement,
fully paid (to the extent required under the Partnership Agreement) and non-assessable (except as
such nonassessability may be affected by Sections 30, 41, 51 and 60 of the Xxxxxxxx Islands LP Act)
and will be free of any and all Liens and restrictions on transfer, other than (i) restrictions on
transfer under the Partnership Agreement or this Agreement and under applicable federal and state
securities laws and (ii) such Liens as are created by the Purchasers. The holders of outstanding
Common Units are not entitled to statutory, preemptive or other similar contractual rights to
subscribe for Common Units; and no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or exchange any securities
for, partnership securities or ownership interests in the Partnership are outstanding.
Section 3.11 No Registration Rights. Except as contemplated by the Partnership
Agreement, this Agreement and the Registration Rights Agreement, there are no contracts, agreements
or understandings between the Partnership and any Person granting such Person the right to require
the Partnership to file a registration statement under the Securities Act with respect to any
securities of the Partnership or to require the Partnership to include such securities in any
securities registered or to be registered pursuant to any registration statement filed by or
required to be filed by the Partnership under the Securities Act.
Section 3.12 Periodic Reports. The Partnership’s forms, registration statements,
reports, schedules and statements required to be filed by it under the Exchange Act or the
Securities Act (all such documents filed prior to the date hereof, collectively the
“Partnership SEC Documents”) have been filed with the Commission on a timely basis. The
Partnership SEC Documents, including, without limitation, any audited or unaudited financial
statements and any notes thereto or schedules included therein, at the time filed (or in the case
of registration statements, solely on the dates of effectiveness) (except to the extent corrected
by a subsequent Partnership SEC Document) (a) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were made, not misleading,
(b) complied in all material respects with the applicable requirements of the Exchange Act and the
Securities Act, as the case may be, (c) in the case of the financial statements, complied as to
form in all material respects with applicable accounting requirements and with the published rules
and regulations of the Commission with respect thereto, (d) in the case of the financial
statements, were prepared in accordance with GAAP applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto or, in the case of unaudited statements,
for the absence of certain footnote disclosure and normal, recurring year-end adjustments or as
otherwise permitted by the rules and regulations of the Commission), and (e) fairly present
(subject in the case of unaudited statements to normal and recurring audit adjustments) in all
material respects the consolidated
financial position of the Partnership and its consolidated subsidiaries as of the dates
thereof and the consolidated results of its operations and cash flows for the periods then ended.
Each of Ernst & Young LLP and KPMG LLP is an independent registered public accounting firm with
respect to the Partnership and the General Partner and has not resigned or been dismissed as
independent registered public accountants of the Partnership as a result of or in connection with
any disagreement with the Partnership on any matter of accounting principles or practices,
financial statement disclosure or auditing scope or procedures.
13
Section 3.13 Litigation. As of the date hereof, except as described in the
Partnership SEC Documents, there are no legal or governmental proceedings pending to which any
Partnership Entity is a party or to which any Property or asset of any Partnership Entity is
subject that could reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or which challenges the validity of any of the Operative Documents or the right of
any Partnership Entity to enter into any of the Operative Documents or to consummate the
transactions contemplated hereby and thereby and, to the knowledge of the Partnership, no such
proceedings are threatened by Governmental Authorities or others.
Section 3.14 Insurance. The Partnership and its Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged. The Partnership does not have
any reason to believe that it or any Subsidiary will not 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.
Section 3.15 Internal Accounting Controls. The Partnership and its Subsidiaries
maintain a system 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 GAAP 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 the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Partnership is not aware of any
failures of such internal accounting controls.
Section 3.16 No Material Adverse Change. As of the date hereof, except as set forth
in the Partnership SEC Documents filed with the Commission on or prior to the date hereof, since
June 30, 2011, there has been no change, event, occurrence, effect, fact, circumstance or condition
that has had or would reasonably be likely to have a Material Adverse Effect.
14
Section 3.17 Certain Fees. No fees or commissions are or will be payable by the Partnership to brokers, finders, or
investment bankers with respect to the sale of any of the Purchased Units or the consummation of
the transactions contemplated by this Agreement. The Partnership agrees that it will indemnify and
hold harmless the Purchaser from and against any and all claims, demands, or liabilities for
broker’s, finder’s, placement, or other similar fees or commissions incurred by the Partnership in
connection with the sale of the Purchased Units or the consummation of the transactions
contemplated by this Agreement.
Section 3.18 No Side Agreements. There are no agreements by, among or between the
Partnership or any of its Affiliates, on the one hand, and any Purchaser or any of their
Affiliates, on the other hand, with respect to the transactions contemplated hereby other than the
Operative Documents nor promises or inducements for future transactions between or among any of
such parties.
Section 3.19 No Registration. Assuming the accuracy of the representations and
warranties of the Purchaser contained in Section 4.6 and Section 4.7, the issuance
and sale of the Purchased Units pursuant to this Agreement is exempt from registration requirements
of the Securities Act, and neither the Partnership nor, to the knowledge of the Partnership, any
authorized Representative acting on its behalf has taken or will take any action hereafter that
would cause the loss of such exemption.
Section 3.20 No Integration. Neither the Partnership nor any of its Affiliates have,
directly or indirectly through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or
will be integrated with the sale of the Purchased Units in a manner that would require registration
under the Securities Act.
Section 3.21 Investment Company Status. The Partnership is not an “investment
company” or a company controlled by an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
Section 3.22 Form F-3 Eligibility. As of the date hereof, the Partnership has been,
since the time of filing its most recent Form F-3 Registration Statement, and continues to be
eligible to use Form F-3.
Section 3.23 Passive Foreign Investment Company. To the best knowledge of the
Partnership, after consultation with the United States federal income tax counsel, none of the
Partnership Entities is a Passive Foreign Investment Company within the meaning of Section 1297 of
the Internal Revenue Code of 1986, as amended.
15
Section 3.24 Tax Status. None of the Partnership Entities, other than the Partnership and the General Partner, has
elected to be classified as an association taxable as a corporation for United States federal
income tax purposes. Each of the Partnership Entities, other than the Partnership and the General
Partner, has properly elected to be classified as a disregarded entity if it has one owner or as a
partnership if it has more than one owner 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).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly, hereby represents and warrants to the Partnership
that:
Section 4.1 Existence. Such Purchaser is duly organized and validly existing and in
good standing under the Laws of its jurisdiction of organization, with all requisite power and
authority to own, lease, use and operate its Properties and to conduct its business as currently
conducted.
Section 4.2 Authorization, Enforceability. Such Purchaser has all necessary
corporate, limited liability company or partnership power and authority to execute, deliver and
perform its obligations under this Agreement and the Registration Rights Agreement and to
consummate the transactions contemplated thereby, and the execution, delivery and performance by
such Purchaser of this Agreement and the Registration Rights Agreement has been duly authorized by
all necessary action on the part of such Purchaser; and this Agreement and the Registration Rights
Agreement constitute the legal, valid and binding obligations of such Purchaser, enforceable in
accordance with their terms, except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer and similar laws affecting creditors’ rights generally or by
general principles of equity, including principles of commercial reasonableness, fair dealing and
good faith.
Section 4.3 No Breach. The execution, delivery and performance of this Agreement and
the Registration Rights Agreement by such Purchaser and the consummation by such Purchaser of the
transactions contemplated hereby and thereby will not (a) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, any material
agreement to which such Purchaser is a party or by which such Purchaser is bound or to which any of
the property or assets of such Purchaser is subject, (b) conflict with or result in any violation
of the provisions of the organizational documents of such Purchaser, or (c) violate any statute,
order, rule or regulation of any court or governmental agency or body having jurisdiction over such
Purchaser or the property or assets of such Purchaser, except in the cases of clauses (a) and (c),
for such conflicts, breaches, violations or defaults as would not prevent the consummation of the
transactions contemplated by this Agreement and the Registration Rights Agreement.
16
Section 4.4 Certain Fees. No fees or commissions are or will be payable by such
Purchaser to brokers, finders, or investment bankers with respect to the purchase of any of the
Purchased Units or the consummation of the transaction contemplated by this Agreement. Such
Purchaser agrees that it will indemnify and hold harmless the Partnership from and against any and
all claims, demands, or liabilities for broker’s, finder’s, placement, or other similar fees or
commissions incurred by such Purchaser in connection with the purchase of the Purchased Units or
the consummation of the transactions contemplated by this Agreement.
Section 4.5 No Side Agreements. There are no other agreements by, among or between
such Purchaser and any of its Affiliates, on the one hand, and the Partnership or any of its
Affiliates, on the other hand, with respect to the transactions contemplated hereby other than the
Operative Documents nor promises or inducements for future transactions between or among any of
such parties; provided, however, that, subject to such Purchaser’s compliance with its obligations
under the U.S. federal securities laws and its internal policies: (a) such Purchaser, for purposes
hereof, shall not be deemed to include any employees, subsidiaries or Affiliates that are
effectively walled off by appropriate “Chinese Wall” information barriers approved by such
Purchaser’s legal or compliance department (and thus have not been privy to any information
concerning this transaction) (a “Walled Off Person”) and (b) the foregoing representations
in this paragraph shall not apply to any transaction by or on behalf of such Purchaser that was
effected by a Walled Off Person in the ordinary course of trading without the advice or
participation of such Purchaser or receipt of confidential or other information regarding this
transaction provided by such Purchaser to such entity.
Section 4.6 Investment. The Purchased Units are being acquired for such Purchaser’s
own account, the account of its Affiliates, or the accounts of clients for whom such Purchaser
exercises discretionary investment authority (all of whom such Purchaser hereby represents and
warrants are “accredited investors” within the meaning of Rule 501(a) of Regulation D promulgated
by the Commission pursuant to the Securities Act), not as a nominee or agent, and with no present
intention of distributing the Purchased Units or any part thereof, and such Purchaser has no
present intention of selling or granting any participation in or otherwise distributing the same in
any transaction in violation of the securities laws of the United States or other jurisdiction,
without prejudice, however, to such Purchaser’s right at all times to sell or otherwise dispose of
all or any part of the Purchased Units under a registration statement under the Securities Act and
applicable state securities laws or under an exemption from such registration available thereunder
(including, without limitation, if available, Rule 144 promulgated thereunder). If such Purchaser
should in the future decide to dispose of any of the Purchased Units, the Purchaser understands and
agrees (a) that it may do so only in compliance with the Securities Act and applicable state or
other securities law, as then in effect, including a sale contemplated by any registration
statement pursuant to which such securities are being offered, or pursuant to an exemption from the
Securities Act, and (b) that stop-transfer instructions to that effect will be in effect with
respect to such securities.
17
Section 4.7 Nature of Purchaser. Such Purchaser represents and warrants to, and
covenants and agrees with, the Partnership that, (a) it is an “accredited investor” within the
meaning of Rule 501 of Regulation D promulgated by the Commission pursuant to the Securities Act
and (b) by reason of its business and financial experience it has such knowledge, sophistication
and experience in making similar investments and in business and financial matters generally so as
to be capable of evaluating the merits and risks of the prospective investment in the Purchased
Units, is able to bear the economic risk of such investment and, at the present time, would be able
to afford a complete loss of such investment.
Section 4.8 Restricted Securities. Such Purchaser understands that the Purchased
Units are characterized as “restricted securities” under the federal securities Laws inasmuch as
they are being acquired from the Partnership in a transaction not involving a public offering and
that under such Laws and applicable regulations such securities may be resold without registration
under the Securities Act only in certain limited circumstances. In this connection, such Purchaser
represents that it is knowledgeable with respect to Rule 144 of the Commission promulgated under
the Securities Act.
Section 4.9 Legend. Such Purchaser understands that any certificates evidencing the
Purchased Units will bear the legend required by the Partnership Agreement as well as the following
legend: “These securities have not been registered under the Securities Act of 1933, as amended
(the “Securities Act”). These securities may not be sold or offered for sale except pursuant to an
effective registration statement under the Securities Act or pursuant to an exemption from
registration thereunder, in each case in accordance with all applicable securities laws of the
states or other jurisdictions, and in the case of a transaction exempt from registration, such
securities may only be transferred if the transfer agent for such securities has received
documentation satisfactory to it that such transaction does not require registration under the
Securities Act.”
Section 4.10 Short Selling. Such Purchaser has not entered into or effected any Short
Sales of the Common Units owned by it between the time it first began discussion with the
Partnership about the transactions contemplated by this Agreement and the date hereof (it being
understood that the entering into of a total return swap shall not be considered a Short Sale of
Common Units); provided, however, that, subject to such Purchaser’s compliance with its obligations
under the U.S. federal securities laws and its internal policies: (a) such Purchaser, for purposes
hereof, shall not be deemed to include any Walled Off Person and (b) the foregoing representations
in this paragraph shall not apply to any transaction by or on behalf of Purchaser that was effected
by a Walled Off Person in the ordinary course of trading without the advice or participation of
Purchaser or receipt of confidential or other information regarding this transaction provided by
Purchaser to such entity.
Section 4.11 Trading Activities. Such Purchaser’s trading activities, if any, with respect to the Common Units will be in
compliance with all applicable state and federal securities laws, rules and regulations and the
rules and regulations of the NYSE.
18
Section 4.12 Short Selling Acknowledgement and Agreement. Each Purchaser understands
and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently
takes the position that coverage of short sales of securities “against the box” prior to the
effective date of a registration statement or prior to the time a Purchaser is eligible to sell
such securities under Rule 144 is a violation of Section 5 of the Securities Act. Each Purchaser
agrees, severally and not jointly, that it will not engage in any Short Sales that result in the
disposition of the Common Units acquired hereunder by such Purchaser until such time as the
Registration Statement (as defined in the Registration Rights Agreement) is declared or deemed
effective by the Commission or such Common Units are no longer subject to any restrictions on
resale.
ARTICLE V
COVENANTS
Section 5.1 Taking of Necessary Action. Each of the parties hereto shall use its
commercially reasonable efforts promptly to take or cause to be taken all action and promptly to do
or cause to be done all things necessary, proper or advisable under applicable Law and regulations
to consummate and make effective the transactions contemplated by this Agreement. Without limiting
the foregoing, the Partnership and each Purchaser shall use its commercially reasonable efforts to
make all filings and obtain all consents of Governmental Authorities that may be necessary or, in
the reasonable opinion of the other parties, as the case may be, advisable for the consummation of
the transactions contemplated by the Operative Documents.
Section 5.2 Other Actions. The Partnership shall file prior to the Closing a
supplemental listing application with the NYSE to list the Purchased Units.
Section 5.3 Payment and Expenses. The Partnership hereby agrees to reimburse the
Purchasers, upon demand, for up to an aggregate amount of $50,000 in reasonable fees and expenses
of Xxxxxx & Xxxxxx L.L.P. incurred in connection with (i) the preparation of the Operative
Documents, (ii) the issue, sale and delivery of the Purchased Units and (iii) any listing of the
Purchased Units for quotation on the NYSE. Any legal fees of Xxxxxx & Xxxxxx L.L.P in excess of
$50,000 shall be paid pro rata by all the Purchasers in proportion to the aggregate number of
Purchased Units purchased by each.
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Section 5.4 Use of Proceeds. The Partnership shall use the collective proceeds from the sale of the Purchased Units to
partially fund the Acquisition and the BG Shuttle Tankers. If (x) the Acquisition does not close
concurrently with the Closing or within five Business Days thereafter or (y) Teekay’s acquisition
of the Sevan Hummingbird substantially in accordance with the applicable terms set forth in Exhibit
B hereto does not close concurrently with the Closing or within five Business Days thereafter or
(z) Teekay does not enter into a definitive agreement with Sevan to acquire the Sevan Voyageur
substantially in accordance with the applicable terms set forth in Exhibit B hereto concurrently
with the Closing or within five Business Days thereafter, the Partnership shall return the Purchase
Price paid to the Partnership to the applicable Purchasers within five Business Days of receipt
thereof and such Purchasers shall promptly return all Purchased Units to the Partnership.
Section 5.5 Termination Fee. In the event this Agreement is terminated without
Closing by January 9, 2012, the Partnership hereby agrees to pay to each Purchaser a termination
fee in cash in an amount equal to the product of (a) 1.00%, multiplied by (b) the amount set forth
opposite such Purchaser’s name under the column titled “Purchase Price” set forth on Schedule
A hereto (the “Termination Fee”); provided, however, that no Purchaser who shall have
breached in any material respect any of its covenants or agreements set forth in this Agreement
shall be entitled to any Termination Fee.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification by the Partnership. The Partnership agrees to indemnify
each Purchaser and its Representatives (collectively, “Purchaser Related Parties”) from,
and hold each of them harmless against, any and all actions, suits, proceedings (including any
investigations, litigation or inquiries), demands, and causes of action, and, in connection
therewith, and promptly upon demand, pay or reimburse each of them for all costs, losses,
liabilities, damages, or expenses of any kind or nature whatsoever, including, without limitation,
the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in
connection with investigating, defending or preparing to defend any such matter that may be
incurred by them or asserted against or involve any of them as a result of, arising out of, or in
any way related to the breach of any of the representations, warranties or covenants of the
Partnership contained herein, provided that such claim for indemnification relating to a breach of
the representations or warranties is made prior to the expiration of such representations or
warranties; and provided further, that no Purchaser Related Party shall be entitled to recover
special, indirect, incidental, consequential (including lost profits or diminution in value) or
punitive damages. Notwithstanding anything to the contrary, indirect, incidental and consequential
damages shall not be deemed to include diminution in value of the Purchased Units to the extent
resulting from, arising out of or in any way related to the breach of any of the representations,
warranties or covenants of the
Partnership contained herein, which is specifically included in damages covered by the
Purchaser Related Parties’ indemnification.
20
Section 6.2 Indemnification by Purchasers. Each Purchaser agrees, severally and not
jointly, to indemnify the Partnership, the General Partner and their respective Representatives
(collectively, “Partnership Related Parties”) from, and hold each of them harmless against,
any and all actions, suits, proceedings (including any investigations, litigation or inquiries),
demands, and causes of action, and, in connection therewith, and promptly upon demand, pay or
reimburse each of them for all costs, losses, liabilities, damages, or expenses of any kind or
nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel
and all other reasonable expenses incurred in connection with investigating, defending or preparing
to defend any such matter that may be incurred by them or asserted against or involve any of them
as a result of, arising out of, or in any way related to the breach of any of the representations,
warranties or covenants of such Purchaser contained herein, provided that such claim for
indemnification relating to a breach of the representations and warranties is made prior to the
expiration of such representations and warranties; and provided further, that no Partnership
Related Party shall be entitled to recover special, indirect, incidental, consequential (including
lost profits or diminution in value) or punitive damages.
Section 6.3 Indemnification Procedure. Promptly after any Partnership Related Party
or Purchaser Related Party (hereinafter, the “Indemnified Party”) has received notice of
any indemnifiable claim hereunder, or the commencement of any action, suit or proceeding by a third
person, which the Indemnified Party believes in good faith is an indemnifiable claim under this
Agreement, the Indemnified Party shall give the indemnitor hereunder (the “Indemnifying
Party”) written notice of such claim or the commencement of such action, suit or proceeding,
but failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any
liability it may have to such Indemnified Party hereunder except to the extent that the
Indemnifying Party is materially prejudiced by such failure. Such notice shall state the nature and
the basis of such claim to the extent then known. The Indemnifying Party shall have the right to
defend and settle, at its own expense and by its own counsel who shall be reasonably acceptable to
the Indemnified Party, any such matter as long as the Indemnifying Party pursues the same
diligently and in good faith. If the Indemnifying Party undertakes to defend or settle any such
action or claim, it shall promptly notify the Indemnified Party of its intention to do so, and the
Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all commercially
reasonable respects in the defense thereof and the settlement thereof. Such cooperation shall
include, but shall not be limited to, furnishing the Indemnifying Party with any books, records and
other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s
possession or control. Such cooperation of the Indemnified Party shall be at the cost of the
Indemnifying Party. After the Indemnifying Party has notified the Indemnified Party of its
intention to undertake to defend or settle any such asserted liability, and for so long as the
Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for
any additional legal expenses incurred by the Indemnified Party in connection with any defense or
settlement of such asserted
21
liability;
provided, however, that the Indemnified Party shall be entitled (i) at its expense, to
participate in the defense of such asserted liability and the negotiations of the settlement
thereof and (ii) if (A) the Indemnifying Party has failed to assume the defense or employ counsel
reasonably acceptable to the Indemnified Party or (B) if the defendants in any such action include
both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified Party shall
have concluded that there may be reasonable defenses available to the Indemnified Party that are
different from or in addition to those available to the Indemnifying Party or if the interests of
the Indemnified Party reasonably may be deemed to conflict with the interests of the Indemnifying
Party, then the Indemnified Party shall have the right to select a separate counsel and to assume
such legal defense and otherwise to participate in the defense of such action, with the expenses
and fees of such separate counsel and other expenses related to such participation to be reimbursed
by the Indemnifying Party as incurred. Notwithstanding any other provision of this Agreement, the
Indemnifying Party shall not settle any indemnified claim without the consent of the Indemnified
Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete
release from liability of, and does not include any admission of wrongdoing or malfeasance by, the
Indemnified Party.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Interpretation and Survival of Provisions. Article, Section, Schedule,
and Exhibit references are to this Agreement, unless otherwise specified. All references to
instruments, documents, contracts, and agreements are references to such instruments, documents,
contracts, and agreements as the same may be amended, supplemented, and otherwise modified from
time to time, unless otherwise specified. The word “including” shall mean “including but not
limited to.” Whenever any party has an obligation under the Operative Documents, the expense of
complying with that obligation shall be an expense of such party unless otherwise specified.
Whenever any determination, consent, or approval is to be made or given by any Purchaser, such
action shall be in such Purchaser’s sole discretion unless otherwise specified in this Agreement.
If any provision in the Operative Documents is held to be illegal, invalid, not binding, or
unenforceable, such provision shall be fully severable and the Operative Documents shall be
construed and enforced as if such illegal, invalid, not binding, or unenforceable provision had
never comprised a part of the Operative Documents, and the remaining provisions shall remain in
full force and effect. The Operative Documents have been reviewed and negotiated by sophisticated
parties with access to legal counsel and shall not be construed against the drafter.
Section 7.2 Survival of Provisions. The representations and warranties set forth in
Sections 3.1, 3.2, 3.6, 3.10, 3.11, 3.16, 3.17, 3.18, 3.19, 4.4, 4.5, 4.7, 4.8, 4.9 and
4.10 hereunder shall survive the execution and delivery of this Agreement indefinitely, and the
other representations and warranties set forth herein shall survive for a period of twelve (12)
months following the Closing Date regardless of any investigation made by or on behalf of the
Partnership or any Purchaser. The covenants made in this Agreement or any other Operative Document
shall survive the Closing of the transactions
described herein and remain operative and in full force and effect regardless of acceptance of
any of the Purchased Units and payment therefor and repayment, conversion, exercise or repurchase
thereof. All indemnification obligations of the Partnership and the Purchasers pursuant to this
Agreement and the provisions of Article VI shall remain operative and in full force and effect
unless such obligations are expressly terminated in a writing by the parties, regardless of any
purported general termination of this Agreement.
22
Section 7.3 No Waiver; Modifications in Writing.
(a) Delay. No failure or delay on the part of any party in exercising any right,
power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power, or remedy preclude any other or further exercise thereof or the
exercise of any other right, power, or remedy. The remedies provided for herein are cumulative and
are not exclusive of any remedies that may be available to a party at law or in equity or
otherwise.
(b) Specific Waiver. Except as otherwise provided herein, no amendment, waiver,
consent, modification, or termination of any provision of this Agreement or any other Operative
Document shall be effective unless signed by each of the parties hereto or thereto affected by such
amendment, waiver, consent, modification, or termination. Any amendment, supplement or
modification of or to any provision of this Agreement or any other Operative Document, any waiver
of any provision of this Agreement or any other Operative Document, and any consent to any
departure by the Partnership from the terms of any provision of this Agreement or any other
Operative Document shall be effective only in the specific instance and for the specific purpose
for which made or given. Except where notice is specifically required by this Agreement, no notice
to or demand on the Partnership in any case shall entitle the Partnership to any other or further
notice or demand in similar or other circumstances.
Section 7.4 Binding Effect; Assignment.
(a) Binding Effect. This Agreement shall be binding upon the Partnership, the
Purchasers, and their respective successors and permitted assigns. Except as expressly provided in
this Agreement, this Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective successors and permitted
assigns.
(b) Assignment of Rights. All or any portion of the rights and obligations of any
Purchaser under this Agreement may be transferred by such Purchaser to any Affiliate of such
Purchaser without the consent of the Partnership. No portion of the rights and obligations of any
Purchaser under this Agreement may be transferred by such Purchaser to a non-Affiliate without the
prior written consent of the Partnership (which consent shall not be unreasonably withheld by the
Partnership). As a condition to any assignment hereunder, the assignee shall agree in writing to
be bound by the provisions of this Agreement.
23
Section 7.5 Communications. All notices and demands provided for hereunder shall be
in writing and shall be given by registered or certified mail, return receipt requested, telecopy,
air courier guaranteeing overnight delivery or personal delivery to the following addresses:
(a) If to any Purchaser:
To the respective address listed on Schedule B
hereof
with a copy to:
Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxx., XX
Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx
Facsimile: 202.879.8985
0000 Xxxxxxxxxxxx Xxx., XX
Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx
Facsimile: 202.879.8985
(b) If to the Partnership:
Teekay Offshore Partners L.P.
4th Floor, Belvedere Building
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: Corporate Secretary
Facsimile: (000) 000-0000
4th Floor, Belvedere Building
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: Corporate Secretary
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Coie LLP
0000 X.X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Facsimile: 503.346.2008
0000 X.X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Facsimile: 503.346.2008
or to such other address as the Partnership or such Purchaser may designate in writing. All notices
and communications shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; at the time of transmittal, if sent via electronic mail; upon actual receipt
if sent by certified mail, return receipt requested, or regular mail, if mailed; when receipt
acknowledged, if sent via facsimile; and upon actual receipt when delivered to an air courier
guaranteeing overnight delivery.
24
Section 7.6 Removal of Legend. In connection with a sale of the Purchased Units by a
Purchaser in reliance on Rule 144, the applicable Purchaser or its broker shall deliver to the
Partnership a broker representation
letter providing to the Partnership any information the Partnership deems necessary to
determine that the sale of the Purchased Units is made in compliance with Rule 144, including, as
may be appropriate, a certification that the Purchaser is not an Affiliate of the Partnership and
regarding the length of time the Purchased Units have been held. Upon receipt of such
representation letter, the Partnership shall promptly direct its transfer agent to exchange unit
certificates bearing a restrictive legend for unit certificates without the legend (or a credit for
such shares to book-entry accounts maintained by the transfer agent), including the legend referred
to in Section 4.9, and the Partnership shall bear all costs associated therewith. After any
Purchaser or its permitted assigns have held the Purchased Units for one year, if the certificate
for such Purchased Units still bears the restrictive legend referred to in Section 4.9, the
Partnership agrees, upon request of the Purchaser or permitted assignee, to take all steps
necessary to promptly effect the removal of the legend described in Section 4.9 from the Purchased
Units, and the Partnership shall bear all costs associated therewith, regardless of whether the
request is made in connection with a sale or otherwise, so long as such Purchaser or its permitted
assigns provide to the Partnership any information the Partnership deems necessary to determine
that the legend is no longer required under the Securities Act or applicable state laws, including
a certification that the holder is not an Affiliate of the Partnership (and a covenant to inform
the Partnership if it should thereafter become an Affiliate and to consent to exchange its
certificates for certificates bearing an appropriate restrictive legend) and regarding the length
of time the Purchased Units have been held.
Section 7.7 Entire Agreement. This Agreement, the other Operative Documents, the
confidentiality agreements executed by the Purchasers in favor of the Partnership (the
“Confidentiality Agreement”), and the other agreements and documents referred to herein are
intended by the parties as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or the other Operative Documents
with respect to the rights granted by the Partnership or any of its Affiliates or any Purchaser or
any of its Affiliates set forth herein or therein. This Agreement, the other Operative Documents
and the other agreements and documents referred to herein or therein supersede all prior agreements
and understandings between the parties with respect to such subject matter.
Section 7.8 Governing Law. This Agreement will be construed in accordance with and
governed by the laws of the State of New York.
Section 7.9 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Agreement.
25
Section 7.10 Termination.
(a) Notwithstanding anything herein to the contrary, this Agreement may be terminated at any
time at or prior to the Closing by (i) the written consent of Purchasers of Common Units with a
Purchase Price in excess of $75 million, upon a breach in any material respect by the Partnership
of any covenant or agreement set forth in this Agreement or (ii) written notice by the Partnership
to the Purchasers upon a breach in any material respect by the Purchasers of Common Units with a
Purchase Price in excess of $25 million of any covenant or agreement set forth in this Agreement.
(b) Notwithstanding anything herein to the contrary, this Agreement shall automatically
terminate at any time at or prior to the Closing
(i) if a statute, rule, order, decree or regulation shall have been enacted or
promulgated, or if any action shall have been taken by any Governmental Authority of
competent jurisdiction that permanently restrains, permanently precludes, permanently
enjoins or otherwise permanently prohibits the consummation of the transactions contemplated
by this Agreement or makes the transactions contemplated by this Agreement illegal;
(ii) if the Partnership determines not to consummate the Acquisition; or
(iii) if the Closing shall not have occurred by January 9, 2012.
(c) In the event of the termination of this Agreement as provided in this Section
7.10, (1) this Agreement shall forthwith become null and void, (2) within two (2) Business Days
following such termination, the Partnership shall pay the Termination Fee to each Purchaser in
immediately available funds by wire transfer, and (3) there shall be no liability on the part of
any Party hereto, except as set forth in Sections 5.3, 5.4 and 5.5 and
Article VI of this Agreement; provided, however, that nothing herein shall relieve any
Party from any liability or obligation with respect to any willful breach of this Agreement.
Section 7.11 Recapitalization, Exchanges, Etc. Affecting the Common Units. The
provisions of this Agreement shall apply to the full extent set forth herein with respect to any
and all equity interests of the Partnership or any successor or assign of the Partnership (whether
by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in
exchange for or in substitution of, the Common Units, and shall be appropriately adjusted for
combinations, recapitalizations and the like occurring after the date of this Agreement and prior
to the Closing.
26
Section 7.12 Disclosure. Each Purchaser agrees not to disclose information about this Agreement, the Registration
Rights Agreement and the transactions contemplated hereby until and to the extent the Partnership
publicly discloses such information. The Partnership shall disclose on Commission Form 6-K, within
four Business Days of the date of this Agreement, the transactions contemplated by this Agreement
and the Registration Rights Agreement.
[Signature pages follow.]
27
IN WITNESS WHEREOF, the parties hereto execute this Agreement, effective as of the date first
above written.
TEEKAY OFFSHORE PARTNERS L.P. |
||||
By: | TEEKAY OFFSHORE GP L.L.C. | |||
(its General Partner) | ||||
By: | /s/ Xxxx Xxxx | |||
Name: | Xxxx Xxxx | |||
Title: | Secretary |
Signature Page to Common Unit Purchase Agreement
XXXXX XXXXXXXX MLP INVESTMENT COMPANY |
||||
By: | KA Fund Advisors, LLC, as Manager | |||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Managing Director | |||
XXXXX XXXXXXXX ENERGY TOTAL RETURN FUND, INC. |
||||
By: | KA Fund Advisors, LLC, as Manager | |||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Managing Director | |||
XXXXX XXXXXXXX MIDSTREAM/ENERGY FUND, INC. |
||||
By: | KA Fund Advisors, LLC, as Manager | |||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Managing Director | |||
XXXXX XXXXXXXX ENERGY DEVELOPMENT COMPANY |
||||
By: | KA Fund Advisors, LLC, as Manager | |||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Managing Director | |||
KA FIRST RESERVE, LLC |
||||
By: | KA Fund Advisors, LLC, as Manager | |||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Managing Director |
Signature Page to Common Unit Purchase Agreement
XXXXX XXXXXXXX MLP FUND, LP |
||||
By: | Xxxxx Xxxxxxxx Capital Advisors, L.P., as its | |||
general partner | ||||
By: | /s/ Xxxxx Xxxxxxxxxx | |||
Name: | Xxxxx Xxxxxxxxxx | |||
Title: | General Counsel | |||
XXXXX XXXXXXXX CAPITAL INCOME PARTNERS (QP), LP |
||||
By: | Xxxxx Xxxxxxxx Capital Advisors, L.P., as its | |||
general partner | ||||
By: | /s/ Xxxxx Xxxxxxxxxx | |||
Name: | Xxxxx Xxxxxxxxxx | |||
Title: | General Counsel | |||
XXXXX XXXXXXXX NON-TRADITIONAL INVESTMENTS, LP |
||||
By: | Xxxxx Xxxxxxxx Capital Advisors, L.P., as its | |||
general partner | ||||
By: | /s/ Xxxxx Xxxxxxxxxx | |||
Name: | Xxxxx Xxxxxxxxxx | |||
Title: | General Counsel | |||
XXXXX XXXXXXXX MIDSTREAM INSTITUTIONAL FUND, LP |
||||
By: | Xxxxx Xxxxxxxx Capital Advisors, L.P., as its | |||
general partner | ||||
By: | /s/ Xxxxx Xxxxxxxxxx | |||
Name: | Xxxxx Xxxxxxxxxx | |||
Title: | General Counsel | |||
Signature Page to Common Unit Purchase Agreement
ClearBridge Energy MLP Fund Inc. |
||||
By: | ClearBridge Advisors, LLC | |||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Chief Investment Officer | |||
FAMCO MLP & ENERGY INCOME FUND |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
FAMCO MLP & ENERGY INFRASTRUCTURE FUND |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
FIDUCIARY/CLAYMORE MLP OPPORTUNITY FUND |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
MLP & STRATEGIC EQUITY FUND INC. |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
Signature Page to Common Unit Purchase Agreement
NUVEEN ENERGY MLP TOTAL RETURN FUND |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
TEACHERS’ RETIREMENT SYSTEM OF OKLAHOMA |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
SALIENT MLP & ENERGY INFRASTRUCTURE FUND |
||||
By: | Salient Capital Advisors, LLC, its Investment Manager | |||
By: | /s/ Xxxx Xxxx | |||
Name: | Xxxx Xxxx | |||
Title: | President and Managing Director | |||
SALIENT MLP FUND, LP |
||||
By: | Salient Capital Advisors, LLC, its Investment Manager | |||
By: | /s/ Xxxx Xxxx | |||
Name: | Xxxx Xxxx | |||
Title: | President and Managing Director | |||
H-E-B BRAND AND RETIREMENT PLAN TRUST |
||||
By: | Salient Capital Advisors, LLC, its Investment Manager | |||
By: | /s/ Xxxx Xxxx | |||
Name: | Xxxx Xxxx | |||
Title: | President and Managing Director |
Signature Page to Common Unit Purchase Agreement
TORTOISE NORTH AMERICAN ENERGY CORP. |
||||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | Senior Vice President | |||
TORTOISE PIPELINE AND ENERGY FUND |
||||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | President |
Signature Page to Common Unit Purchase Agreement
Schedule B — Notice and Contact Information
Schedule B to Common Unit Purchase Agreement
Schedule C — Operating Subsidiaries and Ownership
Schedule C to Common Unit Purchase Agreement
Exhibit A — Form of Registration Rights Agreement
Attached
Exhibit A to Common Unit Purchase Agreement
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
AND
THE INVESTORS NAMED ON SCHEDULE A HERETO
TABLE OF CONTENTS
ARTICLE I DEFINITIONS |
1 | |||
Section 1.01 Definitions |
1 | |||
Section 1.02 Registrable Securities |
3 | |||
ARTICLE II REGISTRATION RIGHTS |
3 | |||
Section 2.01 Registration |
3 | |||
Section 2.02 Piggyback Rights |
5 | |||
Section 2.03 Delay Rights |
6 | |||
Section 2.04 Underwritten Offerings |
8 | |||
Section 2.05 Sale Procedures |
8 | |||
Section 2.06 Cooperation by Holders |
11 | |||
Section 2.07 Restrictions on Public Sale by Holders of Registrable Securities |
11 | |||
Section 2.08 Expenses |
12 | |||
Section 2.09 Indemnification |
12 | |||
Section 2.10 Rule 144 Reporting |
15 | |||
Section 2.11 Transfer or Assignment of Registration Rights |
15 | |||
Section 2.12 Limitation on Subsequent Registration Rights |
15 | |||
ARTICLE III MISCELLANEOUS |
16 | |||
Section 3.01 Communications |
16 | |||
Section 3.02 Successor and Assigns |
16 | |||
Section 3.03 Assignment of Rights |
16 | |||
Section 3.04 Recapitalization, Exchanges, Etc. Affecting the Units |
17 | |||
Section 3.05 Aggregation of Registrable Securities |
17 | |||
Section 3.06 Specific Performance |
17 | |||
Section 3.07 Counterparts |
17 | |||
Section 3.08 Headings |
17 | |||
Section 3.09 Governing Law |
17 | |||
Section 3.10 Severability of Provisions |
17 | |||
Section 3.11 Entire Agreement |
18 | |||
Section 3.12 Amendment |
18 | |||
Section 3.13 No Presumption |
18 | |||
Section 3.14 Obligations Limited to Parties to Agreement |
18 | |||
Section 3.15 Interpretation |
19 |
Schedule A — Investor List; Notice and Contact Information; Opt-Out
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
November
_____
, 2011, by and among Teekay Offshore Partners L.P., a Xxxxxxxx Islands limited
partnership (the “Partnership”), and each of the Persons set forth on Schedule A to
this Agreement (each, an “Investor” and collectively, the “Investors”).
WHEREAS, this Agreement is made in connection with the entry into the Common Unit Purchase
Agreement, dated as of November
_____, 2011, by and among the Partnership and the Investors (the
“Common Unit Purchase Agreement”); and
WHEREAS, the Partnership has agreed to provide the registration and other rights set forth in
this Agreement for the benefit of the Investors pursuant to the Common Unit Purchase Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged
by each party hereto, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein without definition shall have
the meanings given to them in the Common Unit Purchase Agreement. The terms set forth below are
used herein as so defined:
“Affiliate” means, with respect to any Person, any other Person that directly or
indirectly through one or more intermediaries controls, is controlled by or is under common control
with, the Person in question. As used herein, the term “control” means the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning specified therefor in the introductory paragraph of this
Agreement.
“Commission” means the U.S. Securities and Exchange Commission.
“Common Unit Purchase Agreement” has the meaning specified therefor in the recitals of
this Agreement.
“Effectiveness Period” has the meaning specified therefor in Section 2.01(a)
of this Agreement.
“General Partner” means Teekay Offshore GP L.L.C., a Xxxxxxxx Islands limited
liability company.
1
“Holder” means the record holder of any Registrable Securities.
“Included Registrable Securities” has the meaning specified therefor in Section
2.02(a) of this Agreement.
“Investor” and “Investors” have the meanings specified therefor in the
introductory paragraph of this Agreement.
“Liquidated Damages” has the meaning specified therefor in Section 2.01(b) of
this Agreement.
“Liquidated Damages Multiplier” means the product of the Common Unit Price times the
number of Purchased Units purchased by such Investor and that may not be disposed of without
restriction pursuant to any section of Rule 144 (or any similar provision then in effect) under the
Securities Act.
“Losses” has the meaning specified therefor in Section 2.09(a) of this
Agreement.
“Managing Underwriter” means, with respect to any Underwritten Offering, the
book-running lead manager of such Underwritten Offering.
“Opt-Out Notice” has the meaning specified therefor in Section 2.02(a) of this
Agreement.
“Parity Securities” has the meaning specified therefor in Section 2.02(b) of
this Agreement.
“Partnership” has the meaning specified therefor in the introductory paragraph of this
Agreement.
“Person” means an individual or a corporation, limited liability company, partnership,
joint venture, trust, unincorporated organization, association, government agency or political
subdivision thereof or other entity.
“Registrable Securities” means (i) the Common Units to be acquired by the Investors
pursuant to the Common Unit Purchase Agreement and (ii) any Common Units issued as Liquidated
Damages pursuant to Section 2.01(b) of this Agreement.
“Registration Expenses” has the meaning specified therefor in Section 2.08(b)
of this Agreement.
“Registration Statement” has the meaning specified therefor in Section 2.01(a)
of this Agreement.
“Selling Expenses” has the meaning specified therefor in Section 2.08(b) of
this Agreement.
2
“Selling Holder” means a Holder who is selling Registrable Securities pursuant to a
registration statement.
“Selling Holder Indemnified Persons” has the meaning specified therefor in Section
2.09(a) of this Agreement.
“Underwritten Offering” means an offering (including an offering pursuant to a
Registration Statement) in which Common Units are sold to an underwriter on a firm commitment basis
for reoffering to the public or an offering that is a “bought deal” with one or more investment
banks.
Section 1.02 Registrable Securities. Any Registrable Security will cease to be a
Registrable Security (a) when a registration statement covering such Registrable Security becomes
or has been declared effective by the Commission and such Registrable Security has been sold or
disposed of pursuant to such effective registration statement; (b) when such Registrable Security
has been disposed of pursuant to any section of Rule 144 (or any similar provision then in effect)
under the Securities Act; (c) when such Registrable Security is held by the Partnership or one of
its subsidiaries or Affiliates; (d) when such Registrable Security has been sold or disposed of in
a private transaction in which the transferor’s rights under this Agreement are not assigned to the
transferee of such securities pursuant to Section 2.11 hereof or (e) one year after the
Closing Date.
ARTICLE II
REGISTRATION RIGHTS
REGISTRATION RIGHTS
Section 2.01 Registration.
(a) Effectiveness Deadline. Following the date hereof, but no later than 30 days
following the Closing Date, the Partnership shall prepare and file a registration statement (the
“Registration Statement”) under the Securities Act with respect to all of the Registrable
Securities. The Registration Statement filed pursuant to this Section 2.01(a) shall be on
such appropriate registration form of the Commission as shall be selected by the Partnership. The
Partnership shall use its commercially reasonable efforts to cause the Registration Statement to
become effective on or as soon as practicable after the Closing Date. Any Registration Statement
shall provide for the resale pursuant to any method or combination of methods legally available to,
and reasonably requested by, the Holders of any and all Registrable Securities covered by such
Registration Statement. The Partnership shall use its commercially reasonable efforts to cause the
Registration Statement filed pursuant to this Section 2.01(a) to be effective, supplemented
and amended to the extent necessary to ensure that it is available for the resale of all
Registrable Securities by the Holders until all Registrable Securities covered by such Registration
Statement have ceased to be Registrable Securities (the “Effectiveness Period”). The
Registration Statement when effective (including the documents incorporated therein by reference)
will comply as to form in all material respects with all applicable requirements of the Securities
Act and the Exchange Act and will, when it becomes effective, not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of any prospectus contained in
such Registration Statement, in the light of the circumstances under which a statement is made).
As soon as practicable following the date that the Registration Statement becomes effective, but in
any event within two (2) Business Days of such date, the Partnership shall provide the Holders with
written notice of the effectiveness of the Registration Statement.
3
(b) Failure to Go Effective. If the Registration Statement required by Section
2.01(a) is not declared effective within 90 days after the Closing Date, then each Holder shall
be entitled to a payment (with respect to the Purchased Units of each such Holder), as liquidated
damages and not as a penalty, of 0.25% of the Liquidated Damages Multiplier per 30-day period, that
shall accrue daily, for the first 60 days following the 90th day after the Closing Date, increasing
by an additional 0.25% of the Liquidated Damages Multiplier per 30-day period following the 60th
date after such 90th day, that shall accrue daily, for each subsequent 30 days, up to a maximum of
1.00% of the Liquidated Damages Multiplier per 30-day period (the “Liquidated Damages”);
provided, however, that the aggregate amount of Liquidated Damages payable by the Partnership per
Purchased Unit may not exceed 5.0% of the Common Unit Price. The Liquidated Damages payable
pursuant to the immediately preceding sentence shall be payable within ten (10) Business Days after
the end of each such 30-day period. Any Liquidated Damages shall be paid to each Holder in
immediately available funds; provided, however, if the Partnership certifies that it is unable to
pay Liquidated Damages in cash because such payment would result in a breach under a credit
facility or other debt instrument, then the Partnership may pay the Liquidated Damages in kind in
the form of the issuance of additional Common Units. Upon any issuance of Common Units as
Liquidated Damages, the Partnership shall promptly (i) prepare and file an amendment to the
Registration Statement prior to its effectiveness adding such Common Units to such Registration
Statement as additional Registrable Securities and (ii) prepare and file a supplemental listing
application with the NYSE to list such additional Common Units. The determination of the number of
Common Units to be issued as Liquidated Damages shall be equal to the amount of Liquidated Damages
divided by the volume-weighted average closing price of the Common Units on the NYSE for the ten
(10) trading days immediately preceding the date on which the Liquidated Damages payment is due,
less a discount to such average closing price of 2.00%. The payment of Liquidated Damages to a
Holder shall cease at the earlier of (i) the Registration Statement becoming effective or (ii) the
Purchased Units of such Holder becoming eligible for resale without restriction under any section
of Rule 144 (or any similar provision then in effect) under the Securities Act, assuming that each
Holder is not an Affiliate of the Partnership, and any payment of Liquidated Damages shall be
prorated for any period of less than 30 days in which the payment of Liquidated Damages ceases. If
the Partnership is unable to cause a Registration Statement to go effective within 180 days after
the Closing Date as a result of an acquisition, merger, reorganization, disposition or other
similar transaction, then the Partnership may request a waiver of the Liquidated Damages, and each
Holder may individually grant or withhold its consent to such request in its discretion. The
foregoing Liquidated Damages shall be the sole and exclusive remedy of the Holders for any failure
of the Registration Statement to be declared effective.
4
Section 2.02 Piggyback Rights
(a) Participation. In the event the Registrable Securities may not be disposed of
without restriction pursuant to any section of Rule 144 (or any similar provision then in effect)
under the Securities Act, if the Partnership proposes to file (i) a prospectus supplement to an
effective shelf registration statement, other than the Registration Statement contemplated by
Section 2.01(a) of this Agreement and Holders may be included without the filing of a
post-effective amendment thereto, or (ii) a registration statement, other than a shelf registration
statement, in each case, for the sale of Common Units in an Underwritten Offering for its own
account and/or another Person, then as soon as practicable following the engagement of counsel by
the Partnership to prepare the documents to be used in connection with an Underwritten Offering,
the Partnership shall give notice (which may include, without limitation, notification by
electronic mail) of such proposed Underwritten Offering to each Holder that, together with its
Affiliates, holds in the aggregate at least $10.0 million of the then-outstanding Registrable
Securities (based on the Common Unit Price) and such notice shall offer such Holders the
opportunity to include in such Underwritten Offering such number of Registrable Securities (the
“Included Registrable Securities”) as each such Holder may request in writing; provided,
however, that (i) the Partnership shall not be required to provide such opportunity to any such
Holder that does not offer a minimum of $10.0 million of Registrable Securities (based on the
Common Unit Price), or (ii) if the Partnership has been advised by the Managing Underwriter that
the inclusion of Registrable Securities for sale for the benefit of the Holders will have an
adverse effect on the price, timing or distribution of the Common Units in the Underwritten
Offering, then (A) the Partnership shall not be required to offer such opportunity to the Holders
or (B) if any Registrable Securities can be included in the Underwritten Offering in the opinion of
the Managing Underwriter, then the amount of Registrable Securities to be offered for the accounts
of Holders shall be determined based on the provisions of Section 2.02(b). Any notice
required to be provided in this Section 2.02(a) to Holders shall be provided on a Business
Day pursuant to Section 3.01 hereof. Each such Holder described in the proviso of the
immediately preceding sentence shall then have two (2) Business Days (or one (1) Business Day in
connection with any overnight or bought Underwritten Offering) after notice has been delivered to
request in writing the inclusion of Registrable Securities in the Underwritten Offering. If no
written request for inclusion from such a Holder is received within the specified time, each such
Holder shall have no further right to participate in such Underwritten Offering. If, at any time
after giving written notice of its intention to undertake an Underwritten Offering and prior to the
closing of such Underwritten Offering, the Partnership shall determine for any reason not to
undertake or to delay such Underwritten Offering, the Partnership may, at its election, give
written notice of such determination to the Selling Holders and, (x) in the case of a determination
not to undertake such Underwritten Offering, shall be relieved of its obligation to include any
Included Registrable Securities in connection with such terminated Underwritten Offering, and (y)
in the case of a determination to delay such Underwritten Offering, shall be permitted to delay
offering any Included Registrable Securities for the same period as the delay in the Underwritten
Offering. Any Selling Holder shall have the right to withdraw such Selling Holder’s request for
inclusion of such Selling Holder’s Registrable Securities in such Underwritten Offering by giving
written notice to the Partnership of such withdrawal at or prior to the time of pricing of such
Underwritten Offering. Any Holder may deliver written notice (an “Opt-Out Notice”) to the
Partnership requesting that such Holder not receive notice from the Partnership of any proposed
Underwritten Offering; provided, however, that such Holder may later revoke any such Opt-Out Notice
in writing. Following receipt of an Opt-Out Notice from a
Holder (unless subsequently revoked), the Partnership shall not be required to deliver any
notice to such Holder pursuant to this Section 2.02(a) and such Holder shall no longer be
entitled to participate in Underwritten Offerings by the Partnership pursuant to this Section
2.02(a). The Holders indicated on Schedule A hereto shall each be deemed to have
delivered an Opt-Out Notice as of the date hereof.
5
(b) Priority. If the Managing Underwriter or Underwriters of any proposed
Underwritten Offering advise the Partnership that the total amount of Registrable Securities that
the Selling Holders and any other Persons intend to include in such offering exceeds the number
that can be sold in such offering without being likely to have an adverse effect on the price,
timing or distribution of the Common Units offered or the market for the Common Units, then the
Common Units to be included in such Underwritten Offering shall include the number of Registrable
Securities that such Managing Underwriter or Underwriters advise the Partnership can be sold
without having such adverse effect, with such number to be allocated (i) first, to the Partnership,
(ii) second, to Teekay and its Affiliates pursuant to any registration rights existing as of the
date of this Agreement and (iii) third, pro rata among the Selling Holders who have requested
participation in such Underwritten Offering and any other holder of securities of the Partnership
(other than Teekay and its Affiliates) having rights of registration that are neither expressly
senior nor subordinated to the Registrable Securities (the “Parity Securities”). The pro
rata allocations pursuant to clause (iii) above for each Selling Holder who has requested
participation in such Underwritten Offering shall be the product of (a) the aggregate number of
Registrable Securities proposed to be sold in such Underwritten Offering multiplied by (b) the
fraction derived by dividing (x) the number of Registrable Securities owned on the Closing Date by
such Selling Holder by (y) the aggregate number of Registrable Securities owned on the Closing Date
by all Selling Holders who have requested participation in such Underwritten Offering plus the
aggregate number of Parity Securities owned on the Closing Date by all holders of Parity Securities
that are participating in the Underwritten Offering.
(c) Termination of Piggyback Registration Rights. Each Holder’s rights under
Section 2.02 shall terminate upon such Holder (together with its Affiliates) ceasing to
hold at least $10.0 million of Registrable Securities (based on the Common Unit Price).
Section 2.03 Delay Rights.
Notwithstanding anything to the contrary contained herein, the Partnership may, upon written
notice to any Selling Holder whose Registrable Securities are included in the Registration
Statement or other registration statement contemplated by this Agreement, suspend such Selling
Holder’s use of any prospectus which is a part of the Registration Statement or other registration
statement (in which event the Selling Holder shall discontinue sales of the Registrable Securities
pursuant to the Registration Statement or other registration statement contemplated by this
Agreement but may settle any previously made sales of Registrable Securities) if (i) the
Partnership is pursuing an acquisition, merger, reorganization, disposition or other similar
transaction and the Partnership determines in good faith that the Partnership’s ability to pursue
or
6
consummate such a transaction would be materially adversely affected by any required disclosure
of such transaction in the Registration Statement or other registration statement or (ii)
the Partnership has experienced or is undertaking some other material non-public event the
disclosure of which at such time, in the good faith judgment of the Partnership, would materially
adversely affect the Partnership; provided, however, in no event shall the Selling Holders be
suspended from selling Registrable Securities pursuant to the Registration Statement or other
registration statement for a period that exceeds an aggregate of 60 days in any 180-day period or
105 days in any 365-day period, in each case, exclusive of days covered by any lock-up agreement
executed by a Selling Holder in connection with any Underwritten Offering. Upon disclosure of such
information or the termination of the condition described above, the Partnership shall provide
prompt notice to the Selling Holders whose Registrable Securities are included in the Registration
Statement, and shall promptly terminate any suspension of sales it has put into effect and shall
take such other reasonable actions to permit registered sales of Registrable Securities as
contemplated in this Agreement.
If (i) the Selling Holders shall be prohibited from selling their Registrable Securities under
the Registration Statement or other registration statement contemplated by this Agreement as a
result of a suspension pursuant to the immediately preceding paragraph in excess of the periods
permitted therein or (ii) the Registration Statement or other registration statement contemplated
by this Agreement is filed and declared effective but, during the Effectiveness Period, shall
thereafter cease to be effective or fail to be usable for its intended purpose without being
succeeded within 60 Business Days by a post-effective amendment thereto, a supplement to the
prospectus or a report filed with the Commission pursuant to Section 13(a), 13(c), 14 or l5(d) of
the Exchange Act, then, until the suspension is lifted or a post-effective amendment, supplement or
report is filed with the Commission, but not including any day on which a suspension is lifted or
such amendment, supplement or report is filed and declared effective, if applicable, the
Partnership shall pay the Selling Holders an amount equal to the Liquidated Damages, following the
earlier of, as applicable, (x) the date on which the suspension period exceeded the permitted
period and (y) the sixty-first (61st) Business Day after the Registration Statement or other
registration statement contemplated by this Agreement ceased to be effective or failed to be
useable for its intended purposes, as liquidated damages and not as a penalty (for purposes of
calculation Liquidated Damages, the date in (x) or (y) above shall be deemed the “90th day,” as
used in the definition of Liquidated Damages). For purposes of this paragraph, a suspension shall
be deemed lifted on the date that notice that the suspension has been terminated is delivered to
the Selling Holders. Liquidated Damages pursuant to this paragraph also shall cease upon the
Purchased Units of such Holder becoming eligible for resale without restriction under any section
of Rule 144 (or any similar provision then in effect) under the Securities Act, assuming that each
Holder is not an Affiliate of the Partnership, and any payment of Liquidated Damages shall be
prorated for any period of less than 30 days in which the payment of Liquidated Damages ceases.
The foregoing Liquidated Damages shall be the sole and exclusive remedy of the Holders for any
suspension period or of the registration statement ceasing to be effective or failing to be useable
for its intended purposes as described in this Section 2.03.
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Section 2.04 Underwritten Offerings
(a) General Procedures. In connection with any Underwritten Offering under this
Agreement, the Partnership shall be entitled to select the Managing Underwriter or Underwriters.
In connection with an Underwritten Offering contemplated by this Agreement in which a Selling
Holder participates, each Selling Holder and the Partnership shall be obligated to enter into an
underwriting agreement that contains such representations, covenants, indemnities and other rights
and obligations as are customary in underwriting agreements for firm commitment offerings of
securities. No Selling Holder may participate in such Underwritten Offering unless such Selling
Holder agrees to sell its Registrable Securities on the basis provided in such underwriting
agreement and completes and executes all questionnaires, powers of attorney, indemnities and other
documents reasonably required under the terms of such underwriting agreement. Each Selling Holder
may, at its option, require that any or all of the representations and warranties by, and the other
agreements on the part of, the Partnership to and for the benefit of such underwriters also be made
to and for such Selling Holder’s benefit and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement also be conditions precedent to
its obligations. No Selling Holder shall be required to make any representations or warranties to
or agreements with the Partnership or the underwriters other than representations, warranties or
agreements regarding such Selling Holder, its authority to enter into such underwriting agreement
and to sell, and its ownership of, the securities being registered on its behalf, its intended
method of distribution and any other representation required by Law or customary for such an
Underwritten Offering. If any Selling Holder disapproves of the terms of an underwriting, such
Selling Holder may elect to withdraw therefrom by notice to the Partnership and the Managing
Underwriter; provided, however, that such withdrawal must be made up to and including the time of
pricing of such Underwritten Offering. No such withdrawal or abandonment shall affect the
Partnership’s obligation to pay Registration Expenses. The Partnership’s management may but shall
not be required to participate in a roadshow or similar marketing effort in connection with any
Underwritten Offering.
(b) No Demand Rights. Notwithstanding any other provision of this Agreement, no
Holder shall be entitled to any “demand” rights or similar rights that would require the
Partnership to effect an Underwritten Offering solely on behalf of the Holders.
Section 2.05 Sale Procedures
(a). In connection with its obligations under this
Article II, the Partnership will, as expeditiously as possible:
(b) prepare and file with the Commission such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective for the Effectiveness Period and as may be necessary to comply
with the provisions of the Securities Act with respect to the disposition of all Registrable
Securities covered by the Registration Statement;
(c) if a prospectus supplement will be used in connection with the marketing of an
Underwritten Offering from the Registration Statement and the Managing Underwriter at any time
shall notify the Partnership in writing that, in the reasonable judgment of such Managing
Underwriter, inclusion of detailed information to be used in such prospectus supplement is of
material importance to the success of the Underwritten Offering of such Registrable Securities, the
Partnership shall use its commercially reasonable efforts to include such information in such
prospectus supplement;
8
(d) furnish to each Selling Holder (i) as far in advance as reasonably practicable before
filing the Registration Statement or any other registration statement contemplated by this
Agreement or any supplement or amendment thereto, upon request, copies of reasonably complete
drafts of all such documents proposed to be filed (including exhibits and each document
incorporated by reference therein to the extent then required by the rules and regulations of the
Commission), and provide each such Selling Holder the opportunity to object to any information
pertaining to such Selling Holder and its plan of distribution that is contained therein and make
the corrections reasonably requested by such Selling Holder with respect to such information prior
to filing the Registration Statement or such other registration statement or supplement or
amendment thereto, and (ii) such number of copies of the Registration Statement or such other
registration statement and the prospectus included therein and any supplements and amendments
thereto as such Selling Holder may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Securities covered by such Registration Statement or other
registration statement;
(e) if applicable, use its commercially reasonable efforts to register or qualify the
Registrable Securities covered by the Registration Statement or any other registration statement
contemplated by this Agreement under the securities or blue sky laws of such jurisdictions as the
Selling Holders or, in the case of an Underwritten Offering, the Managing Underwriter, shall
reasonably request; provided, however, that the Partnership will not be required to qualify
generally to transact business in any jurisdiction where it is not then required to so qualify or
to take any action that would subject it to general service of process in any such jurisdiction
where it is not then so subject;
(f) promptly notify each Selling Holder, at any time when a prospectus relating thereto is
required to be delivered by any of them under the Securities Act, of (i) the filing of the
Registration Statement or any other registration statement contemplated by this Agreement or any
prospectus or prospectus supplement to be used in connection therewith, or any amendment or
supplement thereto, and, with respect to such Registration Statement or any other registration
statement or any post-effective amendment thereto, when the same has become effective; and (ii) the
receipt of any written comments from the Commission with respect to any filing referred to in
clause (i) and any written request by the Commission for amendments or supplements to the
Registration Statement or any other registration statement or any prospectus or prospectus
supplement thereto;
(g) immediately notify each Selling Holder, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of (i) the happening of any event as a result of
which the prospectus or prospectus supplement contained in the Registration Statement or any other
registration statement contemplated by this Agreement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of any prospectus contained
therein, in the light of the circumstances under which a statement is made); (ii) the issuance or
express threat of issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any other registration statement contemplated by this Agreement, or the
initiation of any proceedings for that purpose; or (iii) the receipt by the Partnership of any
notification with respect to the suspension of the qualification of any Registrable Securities for
sale under the applicable securities or blue sky laws of any jurisdiction.
Following the provision of such notice, the Partnership agrees to as promptly as practicable
amend or supplement the prospectus or prospectus supplement or take other appropriate action so
that the prospectus or prospectus supplement does not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then existing and to take such
other commercially reasonable action as is necessary to remove a stop order, suspension, threat
thereof or proceedings related thereto;
9
(h) upon request and subject to appropriate confidentiality obligations, furnish to each
Selling Holder copies of any and all transmittal letters or other correspondence with the
Commission or any other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange) relating to such offering of
Registrable Securities;
(i) in the case of an Underwritten Offering, furnish upon request, (i) an opinion of counsel
for the Partnership dated the date of the closing under the underwriting agreement and (ii) a “cold
comfort” letter, dated the pricing date of such Underwritten Offering and a letter of like kind
dated the date of the closing under the underwriting agreement, in each case, signed by the
independent public accountants who have certified the Partnership’s financial statements included
or incorporated by reference into the applicable registration statement, and each of the opinion
and the “cold comfort” letter shall be in customary form and covering substantially the same
matters with respect to such registration statement (and the prospectus and any prospectus
supplement included therein) as have been customarily covered in opinions of issuer’s counsel and
in accountants’ letters delivered to the underwriters in Underwritten Offerings of securities by
the Partnership and such other matters as such underwriters may reasonably request;
(j) otherwise use its commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(k) make available to the appropriate representatives of the Managing Underwriter and Selling
Holders access to such information and Partnership personnel as is reasonable and customary to
enable such parties to establish a due diligence defense under the Securities Act; provided,
however, that the Partnership need not disclose any non-public information to any such
representative unless and until such representative has entered into a confidentiality agreement
with the Partnership;
(l) cause all such Registrable Securities registered pursuant to this Agreement to be listed
on each securities exchange or nationally recognized quotation system on which similar securities
issued by the Partnership are then listed;
(m) use its commercially reasonable efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Partnership to enable the Selling Holders to
consummate the disposition of such Registrable Securities;
10
(n) provide a transfer agent and registrar for all Registrable Securities covered by such
registration statement not later than the effective date of such registration statement;
(o) enter into customary agreements and take such other actions as are reasonably requested by
the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition
of such Registrable Securities; and
(p) if requested by a Selling Holder, (i) incorporate in a prospectus supplement or
post-effective amendment such information as such Selling Holder reasonably requests to be included
therein relating to the sale and distribution of Registrable Securities, including information with
respect to the number of Registrable Securities being offered or sold, the purchase price being
paid therefor and any other terms of the offering of the Registrable Securities to be sold in such
offering and (ii) make all required filings of such prospectus supplement or post-effective
amendment after being notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment.
Each Selling Holder, upon receipt of notice from the Partnership of the happening of any event
of the kind described in subsection (g) of this Section 2.05, shall forthwith
discontinue offers and sales of the Registrable Securities by means of a prospectus or prospectus
supplement until such Selling Holder’s receipt of the copies of the supplemented or amended
prospectus contemplated by subsection (g) of this Section 2.05 or until it is
advised in writing by the Partnership that the use of the prospectus may be resumed and has
received copies of any additional or supplemental filings incorporated by reference in the
prospectus, and, if so directed by the Partnership, such Selling Holder will, or will request the
Managing Underwriter or Underwriters, if any, to deliver to the Partnership (at the Partnership’s
expense) all copies in their possession or control, other than permanent file copies then in such
Selling Holder’s possession, of the prospectus covering such Registrable Securities current at the
time of receipt of such notice.
Section 2.06 Cooperation by Holders Notwithstanding anything to the contrary, the
Partnership shall have no obligation to include Registrable Securities of a Holder in the
Registration Statement or in an Underwritten Offering pursuant to Section 2.02(a) who has
failed to timely furnish such information that the Partnership determines, after consultation with
its counsel, is reasonably required in order for the registration statement or prospectus
supplement, as applicable, to comply with the Securities Act.
Section 2.07 Restrictions on Public Sale by Holders of Registrable Securities. Each
Holder of Registrable Securities agrees to enter into a customary letter agreement with
underwriters providing such Holder will not effect any public sale or distribution of Registrable
Securities during the 60 calendar day period beginning on the date of a prospectus or prospectus
supplement filed with the Commission with respect to the pricing of any Underwritten Offering,
provided, however, that (i) the duration of the foregoing restrictions shall be no longer than the
duration of the shortest restriction generally imposed by the underwriters on the Partnership or
the officers, directors or any other Affiliate of the Partnership on whom a restriction is imposed
and (ii) the restrictions set forth in this Section 2.07 shall not apply to any
Registrable Securities that are included in such Underwritten Offering by such Holder. In
addition, this Section 2.07 shall not apply to any Holder that is not entitled to
participate in such Underwritten Offering, including, without limitation, whether because such
Holder delivered an Opt-Out Notice prior to receiving notice of the Underwritten Offering, because
such Holder holds less than $10.0 million of the then-outstanding Registrable Securities or because
the Registrable Securities held by such Holder may be disposed of without restriction pursuant to
any section of Rule 144 (or any similar provision then in effect) under the Securities Act.
11
Section 2.08 Expenses
(a) Expenses. The Partnership will pay all reasonable Registration Expenses as
determined by it in good faith, including, in the case of an Underwritten Offering, whether or not
any sale is made pursuant to such Underwritten Offering. Each Selling Holder shall pay its pro
rata share of all Selling Expenses in connection with any sale of its Registrable Securities
hereunder. In addition, except as otherwise provided in Section 2.09 hereof, the
Partnership shall not be responsible for legal fees incurred by Holders in connection with the
exercise of such Holders’ rights hereunder.
(b) Certain Definitions. “Registration Expenses” means all expenses incident
to the Partnership’s performance under or compliance with this Agreement to effect the registration
of Registrable Securities on the Registration Statement pursuant to Section 2.01(a) or an
Underwritten Offering covered under this Agreement, and the disposition of such Registrable
Securities, including, without limitation, all registration, filing, securities exchange listing
and NYSE fees, all registration, filing, qualification and other fees and expenses of complying
with securities or blue sky laws, fees of the Financial Industry Regulatory Authority, fees of
transfer agents and registrars, all word processing, duplicating and printing expenses, and the
fees and disbursements of counsel and independent public accountants for the Partnership, including
the expenses of any special audits or “cold comfort” letters required by or incident to such
performance and compliance. “Selling Expenses” means all underwriting fees, discounts and
selling commissions or similar fees or arrangements allocable to the sale of the Registrable
Securities.
Section 2.09 Indemnification
(a) By the Partnership. In the event of a registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, the Partnership will indemnify and hold
harmless each Selling Holder thereunder, its directors, officers, employees and agents and each
Person, if any, who controls such Selling Holder within the meaning of the Securities Act and the
Exchange Act, and its directors, officers, employees or agents (collectively, the “Selling
Holder Indemnified Persons”), against any losses, claims, damages, expenses or liabilities
(including reasonable attorneys’ fees and expenses) (collectively, “Losses”), joint or
several, to which such Selling Holder Indemnified Person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such
12
Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact (in the case of any prospectus, in light of the circumstances
under which such statement is made) contained in the Registration Statement or any other
registration statement contemplated by this Agreement, any preliminary prospectus, prospectus
supplement, issuer free writing prospectus or final prospectus contained therein, or any amendment
or supplement thereof, 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
(in the case of a prospectus, in light of the circumstances under which they were made) not
misleading, and will reimburse each such Selling Holder Indemnified Person for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such Loss or
actions or proceedings; provided, however, that the Partnership will not be liable in any such case
if and to the extent that any such Loss arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity with information
furnished by such Selling Holder Indemnified Person in writing specifically for use in the
Registration Statement or such other registration statement, or preliminary prospectus, prospectus
supplement, free writing prospectus or final prospectus or any amendment or supplement thereto, as
applicable. Such indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Selling Holder Indemnified Person, and shall survive the transfer of
such securities by such Selling Holder.
(b) By Each Selling Holder. Each Selling Holder agrees severally and not jointly to
indemnify and hold harmless the Partnership, the General Partner, its directors, officers,
employees and agents and each Person, if any, who controls the Partnership within the meaning of
the Securities Act or of the Exchange Act, and its directors, officers, employees and agents, to
the same extent as the foregoing indemnity from the Partnership to the Selling Holders, but only
with respect to information regarding such Selling Holder furnished in writing by or on behalf of
such Selling Holder expressly for inclusion in the Registration Statement or any other registration
statement contemplated by this Agreement, any preliminary prospectus, prospectus supplement, free
writing prospectus or final prospectus contained therein, or any amendment or supplement thereof;
provided, however, that the liability of each Selling Holder shall not be greater in amount than
the dollar amount of the proceeds (net of any Selling Expenses) received by such Selling Holder
from the sale of the Registrable Securities giving rise to such indemnification.
(c) Notice. Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from any liability that
it may have to any indemnified party other than under this Section 2.09. In any action
brought against any indemnified party, it shall notify the indemnifying party of the commencement
thereof. The indemnifying party shall be entitled to participate in and, to the extent it shall
wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party and, after notice from the indemnifying party to such indemnified party of its
election so to assume and undertake the defense thereof, the indemnifying party shall not be liable
to such indemnified party under this Section 2.09 for any legal expenses subsequently
incurred by such indemnified party in connection with the defense thereof other than reasonable
out-of-pocket costs of investigation and of
13
liaison with counsel so selected; provided, however, that, (i) if the indemnifying party has failed to assume the defense or employ counsel
reasonably acceptable to the indemnified party or (ii) if the defendants in any such action include
both the indemnified party and the indemnifying party and counsel to the indemnified party shall
have concluded that there may be reasonable defenses available to the indemnified party that are
different from or additional to those available to the indemnifying party, or if the interests of
the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying
party, then the indemnified party shall have the right to select a separate counsel and to assume
such legal defense and otherwise to participate in the defense of such action, with the reasonable
expenses and fees of such separate counsel and other reasonable expenses related to such
participation to be reimbursed by the indemnifying party as incurred. Notwithstanding any other
provision of this Agreement, no indemnifying party shall settle any action brought against any
indemnified party with respect to which such indemnified party is entitled to indemnification
hereunder without the consent of the indemnified party, unless the settlement thereof imposes no
liability or obligation on, and includes a complete and unconditional release from all liability
of, the indemnified party.
(d) Contribution. If the indemnification provided for in this Section 2.09 is
held by a court or government agency of competent jurisdiction to be unavailable to any indemnified
party or is insufficient to hold them harmless in respect of any Losses, then each such
indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such Loss in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one hand and of such
indemnified party on the other in connection with the statements or omissions that resulted in such
Losses, as well as any other relevant equitable considerations; provided, however, that in no event
shall such Selling Holder be required to contribute an aggregate amount in excess of the dollar
amount of proceeds (net of Selling Expenses) received by such Selling Holder from the sale of
Registrable Securities giving rise to such indemnification. The relative fault of the indemnifying
party on the one hand and the indemnified party on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact has been made by, or relates to, information
supplied by such party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this paragraph were to be determined
by pro rata allocation or by any other method of allocation that does not take account of the
equitable considerations referred to herein. The amount paid by an indemnified party as a result
of the Losses referred to in the first sentence of this paragraph shall be deemed to include any
legal and other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any Loss that is the subject of this paragraph. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.
(e) Other Indemnification. The provisions of this Section 2.09 shall be in
addition to any other rights to indemnification or contribution that an indemnified party may have
pursuant to law, equity, contract or otherwise.
14
Section 2.10 Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations of the
Commission that may permit the sale of the Registrable Securities to the public without
registration, the Partnership agrees to use its commercially reasonable efforts to:
(a) make and keep public information regarding the Partnership available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times from and after the date
hereof;
(b) file with the Commission in a timely manner all reports and other documents required of
the Partnership under the Securities Act and the Exchange Act at all times from and after the date
hereof; and
(c) so long as a Holder owns any Registrable Securities, furnish, unless otherwise available
via XXXXX, to such Holder forthwith upon request a copy of the most recent annual or quarterly
report of the Partnership, and such other reports and documents so filed as such Holder may
reasonably request in availing itself of any rule or regulation of the Commission allowing such
Holder to sell any such securities without registration.
Section 2.11 Transfer or Assignment of Registration Rights. The rights to cause the
Partnership to register Registrable Securities granted to the Investors by the Partnership under
this Article II may be transferred or assigned by any Investor to one or more transferees
or assignees of Registrable Securities; provided, however, that (a) unless the transferee or
assignee is an Affiliate of, and after such transfer or assignment continues to be an Affiliate of,
such Investor, the amount of Registrable Securities transferred or assigned to such transferee or
assignee shall represent at least $10.0 million of Registrable Securities (based on the Common Unit
Price), (b) the Partnership is given written notice prior to any said transfer or assignment,
stating the name and address of each such transferee or assignee and identifying the securities
with respect to which such registration rights are being transferred or assigned, and (c) each such
transferee or assignee assumes in writing responsibility for its portion of the obligations of such
Investor under this Agreement.
Section 2.12 Limitation on Subsequent Registration Rights. From and after the date
hereof, the Partnership shall not, without the prior written consent of the Holders of a majority
of the Registrable Securities, enter into any agreement with any current or future holder of any
securities of the Partnership that would allow such current or future holder to require the
Partnership to include securities in any registration statement filed by the Partnership on a basis
other than pari passu with, or expressly subordinate to the rights of, the Holders of Registrable
Securities hereunder.
15
ARTICLE III
MISCELLANEOUS
MISCELLANEOUS
Section 3.01 Communications. All notices and other communications provided for or
permitted hereunder shall be made in writing by facsimile, electronic mail, courier service or
personal delivery:
(a) if to an Investor:
To the respective address listed on Schedule A hereof
with a copy to:
Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxx., XX
Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxxx
Facsimile: 202.879.8985
0000 Xxxxxxxxxxxx Xxx., XX
Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxxx
Facsimile: 202.879.8985
(b) if to a transferee of an Investor, to such Holder at the address provided pursuant to
Section 2.11 above; and
(c) if to the Partnership:
Teekay Offshore Partners L.P.
4th Floor, Belvedere Building
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: Corporate Secretary
Facsimile: (000) 000-0000
4th Floor, Belvedere Building
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: Corporate Secretary
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Coie LLP
0000 X.X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: 503.346.2008
0000 X.X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: 503.346.2008
All such notices and communications shall be deemed to have been received at the time
delivered by hand, if personally delivered; when receipt acknowledged, if sent via facsimile or
sent via Internet electronic mail; and when actually received, if sent by courier service or any
other means.
Section 3.02 Successor and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors and permitted assigns of each of the parties, including subsequent
Holders of Registrable Securities to the extent permitted herein.
Section 3.03 Assignment of Rights. All or any portion of the rights and obligations
of any Investor under this Agreement may be transferred or assigned by such Investor only in
accordance with Section 2.11 hereof.
16
Section 3.04 Recapitalization, Exchanges, Etc. Affecting the Units. The provisions of
this Agreement shall apply to the full extent set forth herein with respect to any and all units of
the Partnership or any successor or assign of the Partnership (whether by merger, consolidation,
sale of assets or otherwise) that may be issued in respect of, in exchange for or in substitution
of, the Registrable Securities, and shall be appropriately adjusted for combinations, unit splits,
recapitalizations, pro rata distributions of units and the like occurring after the date of this
Agreement.
Section 3.05
Aggregation of Registrable Securities. All Registrable Securities held
or acquired by Persons who are Affiliates of one another shall be aggregated together for the
purpose of determining the availability of any rights and applicability of any obligations under
this Agreement.
Section 3.06 Specific Performance. Damages in the event of breach of this Agreement
by a party hereto may be difficult, if not impossible, to ascertain, and it is therefore agreed
that each such Person, in addition to and without limiting any other remedy or right it may have,
will have the right to an injunction or other equitable relief in any court of competent
jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions
hereof, and each of the parties hereto hereby waives any and all defenses it may have on the ground
of lack of jurisdiction or competence of the court to grant such an injunction or other equitable
relief. The existence of this right will not preclude any such Person from pursuing any other
rights and remedies at law or in equity that such Person may have.
Section 3.07 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 3.08 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 3.09 Governing Law. THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH, AND
GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
Section 3.10 Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or affecting or
impairing the validity or enforceability of such provision in any other jurisdiction.
17
Section 3.11 Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the rights granted by the Partnership set forth herein.
This Agreement supersedes all prior agreements and understandings between the parties with respect
to such subject matter.
Section 3.12 Amendment. This Agreement may be amended only by means of a written
amendment signed by the Partnership and the Holders of a majority of the then outstanding
Registrable Securities; provided, however, that no such amendment shall materially and adversely
affect the rights of any Holder hereunder without the consent of such Holder.
Section 3.13 No Presumption. If any claim is made by a party relating to any
conflict, omission or ambiguity in this Agreement, no presumption or burden of proof or persuasion
shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a
particular party or its counsel.
Section 3.14 Obligations Limited to Parties to Agreement. Each of the Parties hereto
covenants, agrees and acknowledges that no Person other than the Investors (and their permitted
transferees and assignees) and the Partnership shall have any obligation hereunder and that,
notwithstanding that one or more of the Investors may be a corporation, partnership or limited
liability company, no recourse under this Agreement or under any documents or instruments delivered
in connection herewith or therewith shall be had against any former, current or future director,
officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of
any of the Investors or any former, current or future director, officer, employee, agent, general
or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, whether by
the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any
applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever
shall attach to, be imposed on or otherwise be incurred by any former, current or future director,
officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of
any of the Investors or any former, current or future director, officer, employee, agent, general
or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, as such, for
any obligations of the Investors under this Agreement or any documents or instruments delivered in
connection herewith or therewith or for any claim based on, in respect of or by reason of such
obligation or its creation, except in each case for any transferee or assignee of a Investor
hereunder.
18
Section 3.15 Interpretation. Article and Section references to this Agreement, unless otherwise specified. All
references to instruments, documents, contracts and agreements are references to such instruments,
documents, contracts and agreements as the same may be amended, supplemented and otherwise modified
from time to time, unless otherwise specified. The word “including” shall mean “including but not
limited to.” Whenever any determination, consent or approval is to be made or given by an Investor
under this Agreement, such action shall be in such Investor’s sole discretion unless otherwise
specified.
[Signature pages to follow]
19
IN WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of the date first
above written.
TEEKAY OFFSHORE PARTNERS L.P. |
||||
By: | TEEKAY OFFSHORE GP L.L.C., | |||
(its General Partner) | ||||
By: | ||||
Name: | Xxxx Xxxx | |||
Title: | Secretary |
Signature Page to Registration Rights Agreement
XXXXX XXXXXXXX MLP INVESTMENT COMPANY |
||||
By: | KA Fund Advisors, LLC, as Manager | |||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Managing Director | |||
XXXXX XXXXXXXX ENERGY TOTAL RETURN FUND, INC. |
||||
By: | KA Fund Advisors, LLC, as Manager | |||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Managing Director | |||
XXXXX XXXXXXXX MIDSTREAM/ENERGY FUND, INC. |
||||
By: | KA Fund Advisors, LLC, as Manager | |||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Managing Director | |||
XXXXX XXXXXXXX ENERGY DEVELOPMENT COMPANY |
||||
By: | KA Fund Advisors, LLC, as Manager | |||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Managing Director | |||
KA FIRST RESERVE, LLC |
||||
By: | KA Fund Advisors, LLC, as Manager | |||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Managing Director |
Signature Page to Registration Rights Agreement
XXXXX XXXXXXXX MLP FUND, LP |
||||
By: | Xxxxx Xxxxxxxx Capital Advisors, L.P., | |||
as its general partner | ||||
By: | ||||
Name: | Xxxxx Xxxxxxxxxx | |||
Title: | General Counsel | |||
XXXXX XXXXXXXX CAPITAL INCOME PARTNERS (QP), LP |
||||
By: | Xxxxx Xxxxxxxx Capital Advisors, L.P., | |||
as its general partner | ||||
By: | ||||
Name: | Xxxxx Xxxxxxxxxx | |||
Title: | General Counsel | |||
XXXXX XXXXXXXX NON-TRADITIONAL INVESTMENTS, LP |
||||
By: | Xxxxx Xxxxxxxx Capital Advisors, L.P., | |||
as its general partner | ||||
By: | ||||
Name: | Xxxxx Xxxxxxxxxx | |||
Title: | General Counsel | |||
XXXXX XXXXXXXX MIDSTREAM INSTITUTIONAL FUND, LP |
||||
By: | Xxxxx Xxxxxxxx Capital Advisors, L.P., | |||
as its general partner | ||||
By: | ||||
Name: | Xxxxx Xxxxxxxxxx | |||
Title: | General Counsel |
Signature Page to Registration Rights Agreement
ClearBridge Energy MLP Fund Inc. |
||||
By: | ClearBridge Advisors, LLC | |||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Chief Investment Officer | |||
FAMCO MLP & ENERGY INCOME FUND |
||||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
FAMCO MLP & ENERGY INFRASTRUCTURE FUND |
||||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
FIDUCIARY/CLAYMORE MLP OPPORTUNITY FUND |
||||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
MLP & STRATEGIC EQUITY FUND INC. |
||||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager |
Signature Page to Registration Rights Agreement
NUVEEN ENERGY MLP TOTAL RETURN FUND |
||||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
TEACHERS’ RETIREMENT SYSTEM OF OKLAHOMA |
||||
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Manager | |||
SALIENT MLP & ENERGY INFRASTRUCTURE FUND |
||||
By: | Salient Capital Advisors, LLC, | |||
its Investment Manager | ||||
By: | ||||
Name: | Xxxx Xxxx | |||
Title: | President and Managing Director | |||
SALIENT MLP FUND, LP |
||||
By: | Salient Capital Advisors, LLC, | |||
its Investment Manager | ||||
By: | ||||
Name: | Xxxx Xxxx | |||
Title: | President and Managing Director |
Signature Page to Registration Rights Agreement
H-E-B BRAND AND RETIREMENT PLAN TRUST |
||||
By: | Salient Capital Advisors, LLC, | |||
its Investment Manager | ||||
By: | ||||
Name: | Xxxx Xxxx | |||
Title: | President and Managing Director | |||
TORTOISE NORTH AMERICAN ENERGY CORP. |
||||
By: | ||||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | Senior Vice President | |||
TORTOISE PIPELINE AND ENERGY FUND |
||||
By: | ||||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | President |
Signature Page to Registration Rights Agreement
Schedule A — Investor Name; Notice and Contact Information
Exhibit B — Sevan FPSO Acquisition Terms
Sevan Piranema Acquisition Terms
• | Acquisition by Teekay Offshore Partners L.P. (the “Partnership”) or a designated
subsidiary thereof from Sevan Marine ASA or an applicable subsidiary thereof of the
FPSO Sevan Piranema, together with any and all charter agreements, leases, service or
operations agreements and such other agreements as identified by the Partnership for
acquisition and directly related to the FPSO Sevan Piranema (collectively, the
“Piranema Related Agreements”). |
• | The acquisition shall be carried out as a direct acquisition of the FPSO Sevan
Piranema and corresponding transfers and novations of all Piranema Related Agreements,
or as the acquisition of the ownership interests of Sevan Production AS, the company
currently owning the FPSO Sevan Piranema. |
• | The purchase price for the FPSO Sevan Piranema will be approximately (a) $165
million and (b) plus or minus any positive or negative working capital of Sevan
Production AS, if and as applicable. |
• | The FPSO Sevan Piranema will be acquired free of any indebtedness or Liens. |
Sevan Hummingbird Acquisition Terms
• | Acquisition by Teekay Corporation (“Teekay”) or a designated subsidiary thereof from
Sevan Marine ASA or an applicable subsidiary thereof of the FPSO Sevan Hummingbird,
together with any and all charter agreements, leases, service or operations agreements
and such other agreements as identified by Teekay for acquisition and directly related
to the FPSO Sevan Hummingbird (collectively, the “Hummingbird Related Agreements”). |
• | The acquisition shall be carried out as a direct acquisition of the FPSO Sevan
Hummingbird and corresponding transfers and novations of all Hummingbird Related
Agreements, or as the acquisition of the ownership interests of the Sevan subsidiary or
subsidiaries (the “Hummingbird Owners”) owning the FPSO Sevan Hummingbird. |
• | The purchase price for the FPSO Sevan Hummingbird to Teekay will be approximately
(a) $179 million and (b) plus or minus any positive or negative working capital of the
Hummingbird Owners, if and as applicable. For the sake of clarity, the purchase price
to be paid by Teekay to Sevan is not controlling on the price at which Teekay may offer
the FPSO Sevan Hummingbird and any Hummingbird Related Agreements to the Partnership,
if any such offer is made to the Partnership. |
• | Teekay will acquire the FPSO Sevan Hummingbird free of any indebtedness or Liens of
Sevan. |
Exhibit B to Common Unit Purchase Agreement
Sevan Voyageur Acquisition Agreement
• | Agreement (the “Voyageur Agreement”) to be executed and delivered between Teekay (or
a designated subsidiary thereof) and Sevan Marine ASA (or an applicable subsidiary
thereof), providing for the acquisition by Teekay (or a designated subsidiary thereof)
from Sevan (or an applicable subsidiary thereof) of the FPSO Sevan Voyageur, together
with any and all charter agreements, leases, service and operations agreements and such
other agreements as identified by Teekay for acquisition and directly related to the
FPSO Sevan Voyageur (collectively, the “Voyageur Related Agreements”). |
• | The Voyageur Agreement will provide that the acquisition will be carried out as a
direct acquisition of the FPSO Sevan Voyageur and corresponding transfers and novations
of all Voyageur Related Agreements, or as the acquisition of the ownership interests of
the Sevan subsidiary or subsidiaries (the “Voyageur Owners”) owning the FPSO Sevan
Voyageur. |
• | The purchase price for the FPSO Sevan Voyageur to Teekay will be approximately (a)
$324 million (including the assumption of up to approximately $230 million of
indebtedness under an existing or replacement bank facility (the “Bank Facility”) which
is secured by a mortgage on the FPSO Sevan Voyageur) plus (b) the cost to complete the
upgrading of the FPSO Sevan Voyageur. For the sake of clarity, the purchase price to be
paid by Teekay to Sevan is not controlling on the price at which Teekay may offer the
FPSO Sevan Voyageur and any Voyageur Related Agreements to the Partnership, if any such
offer is made to the Partnership. |
• | The FPSO Sevan Voyageur would be acquired free of any indebtedness or Liens of Sevan
other than any indebtedness and Liens relating to the Bank Facility. |
• | The Voyageur Agreement will include closing conditions as determined by Sevan and
Teekay, including completion of the upgrade of the Sevan Voyageur. |
Exhibit B to Common Unit Purchase Agreement
Exhibit C — Form of Opinion of Xxxxxxx Coie L.L.P.
Capitalized terms used but not defined herein have the meanings assigned to such terms in the
Common Unit Purchase Agreement (the “Purchase Agreement”). The Partnership shall furnish to
the Purchasers at the Closing an opinion of Xxxxxxx Coie L.L.P., counsel for the Partnership,
addressed to the Purchasers and dated the Closing Date in form reasonably satisfactory to the
Purchasers, stating that:
(i) To our knowledge, except as described in the Partnership SEC Documents filed prior to the
date of the Purchase Agreement, there are no outstanding options, warrants, or agreements for the
purchase or acquisition from the Partnership of Partnership securities or ownership interests in
the Partnership, or rights to convert any obligations into or exchange any securities for
Partnership securities or ownership interests in the Partnership.
(ii) No consent, approval, authorization or other action by, or filing with, any Governmental
Authority is required for the issuance and sale by the Partnership of the Purchased Units, the
execution, delivery and performance by the Partnership of the Operative Documents or the completion
of the transactions contemplated by the Operative Documents, except for (a) those required by the
Commission in connection with the Partnership’s obligations under the Registration Rights Agreement
and (b) those that have been obtained or as may be required under state securities or “Blue Sky”
laws, as to which we do not express any opinion.
(iii) To our knowledge, 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 the
Partnership owned or to be owned by such person or to require any of the Teekay Entities to include
such securities in any securities being registered pursuant to any other registration statement
filed by any Teekay Entity under the Act, except for any such rights held by the General Partner or
an Affiliate (as defined in the Partnership Agreement) of the General Partner pursuant to the
Partnership Agreement.
(iv) None of the offering, issuance and sale by the Partnership of the Purchased Units, the
execution, delivery and performance of the Operative Documents by the Partnership, or the
completion of the transactions contemplated thereby conflicts with or constitutes 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 indenture, contract, mortgage, deed of trust, note agreement, loan
agreement, lease or other agreement or instrument filed as an exhibit to the Partnership’s Annual
Report on Form 20-F for the year ended December 31, 2010, and Reports on Form 6-K for the quarters
ended March 31, 2011 and June 30, 2011 [or any Quarterly Report on Form 6-K filed thereafter]
(including any document filed as an exhibit to any document incorporated by reference therein). (We
do not comment or opine as to compliance with any financial covenants or financial ratios contained
in any such documents.)
Exhibit C to Common Unit Purchase Agreement
(v) Based in part upon the Partnership’s and the Purchasers’ representations and warranties
in, and on the facts and circumstances contemplated by, the Purchase Agreement, the offer, issuance
and sale of the Purchased Units by the Partnership to the Purchasers pursuant
to the terms of the Purchase Agreement do not require registration under Section 5 of the
Securities Act. (We do not comment or opine as to any subsequent sale of the Purchased Units.)
(vi) The Partnership is not, and after giving effect to the use of proceeds from the sale of
the Purchased Units pursuant to the Purchase Agreement will not be, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended.
Exhibit C to Common Unit Purchase Agreement
Exhibit D — Form of Opinion of Xxxxxx, Xxxxxx & Xxxxxxxx LLP
Capitalized terms used but not defined herein have the meanings assigned to such terms in the
Common Unit Purchase Agreement (the “Purchase Agreement”). The Partnership shall furnish
to the Purchasers at the Closing an opinion of Xxxxxx, Xxxxxx & Xxxxxxxx LLP, special Xxxxxxxx
Islands counsel for the Partnership, addressed to the Purchasers and dated the Closing Date in form
reasonably satisfactory to the Purchasers, stating that:
(i) Each of the Partnership and the Operating Company 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 and to
conduct its business, in each case in all material respects as described in the Partnership SEC
Documents.
(ii) Each of the General Partner and the OLP GP 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 and to conduct its business, in each case in all material respects as described in the
Partnership SEC Documents.
(iii) Each of the entities listed in Schedule A to such opinion (the “Xxxxxxxx
Islands Subsidiaries”) is validly existing in good standing as a limited liability company or
corporation, as applicable, under Xxxxxxxx Islands Law, and each has the limited liability company
or corporate power, as applicable, and authority to own or lease its properties and to conduct its
business, in each case in all material respects as described in the Partnership SEC Documents.
(iv) The Purchased Units and the limited partner interests represented thereby have been duly
authorized in accordance with the Partnership Agreement and, when issued and delivered to the
Purchasers 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 such nonassessability may be affected by Sections 30, 41, 51 and 60 of the Xxxxxxxx
Islands LP Act and subject to the provisions of the Partnership Agreement).
(v) The Common Units that may be issued in lieu of cash as liquidated damages pursuant to the
Registration Rights Agreement have been duly authorized in accordance with the Partnership
Agreement and, when issued and delivered in accordance with the terms of the Registration Rights
Agreement, will be validly issued, fully paid (to the extent required under the Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by Sections 30, 41,
51 and 60 of the Xxxxxxxx Islands LP Act and subject to the provisions of the Partnership
Agreement).
(vi) Except as described in the Partnership SEC Documents, there are no preemptive rights or
other rights to subscribe for or to purchase any limited partner interests in the Partnership.
Exhibit D to Common Unit Purchase Agreement
(vii) The execution, delivery and performance of the Operative Documents and the consummation
of the transactions contemplated thereby, including the offering, issuance and sale by the
Partnership of the Purchased Units in accordance with and upon the terms and conditions set forth
in this Agreement, do not (A) conflict with or constitute a violation of the organizational
documents of the Partnership, the General Partner, the Operating Company, the OLP GP or the
Xxxxxxxx Islands Subsidiaries, (B) conflict with or 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), the agreements or instruments governed by Xxxxxxxx Islands Law or New York Law and listed
on a schedule to such opinion, (C) violate Xxxxxxxx Islands Law or New York Law, or (D) violate any
judgment, order or decree of which we are aware of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority situated in the Republic of The Xxxxxxxx
Islands directed to any of the Partnership, the General Partner, the Operating Company, the OLP GP
or the Xxxxxxxx Islands Subsidiaries in a proceeding before such court, regulatory body,
administrative agency, governmental body, arbitrator or other authority in the Republic of the
Xxxxxxxx Islands to which any of them is a party.
(viii) No permit, consent, approval, authorization, order, registration, filing or
qualification of or with any court, governmental agency or body of the Republic of The Xxxxxxxx
Islands having jurisdiction over the Partnership, the General Partner, the Operating Company, the
OLP GP or the Xxxxxxxx Islands Subsidiaries or any of their respective properties is required in
connection with the execution and delivery of this Agreement by the General Partner in its capacity
as the general partner of the Partnership, the performance of the transactions contemplated hereby
by the Partnership Entities or the performance by the Partnership of its obligations hereunder,
including the offering, issuance and sale by the Partnership of the Purchased Units in accordance
with and upon the terms and conditions set forth in this Agreement.
(ix) The choice of New York law to govern the Operative Documents constitutes a valid choice
of law under Xxxxxxxx Islands Law.
(x) Each of Operative Documents has been duly authorized and validly executed and delivered by
the General Partner in its capacity as the general partner of the Partnership, and constitutes a
valid and legally binding obligation of the Partnership enforceable against the Partnership in
accordance with its terms, except as the enforceability thereof may be limited by (A) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws from time
to time in effect affecting creditors’ rights and remedies generally and by general principles of
equity (regardless of whether such principles are considered in a proceeding in equity or at law)
and (B) public policy, applicable law relating to fiduciary duties and indemnification and an
implied covenant of good faith and fair dealing.
Exhibit D to Common Unit Purchase Agreement