EXHIBIT 1.1
TEEKAY LNG PARTNERS L.P.
4,000,000 COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
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Citigroup Global Markets Inc. November __, 2005
[Co-Managers -- to come]
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Teekay LNG Partners L.P., a limited partnership organized under the
laws of the Xxxxxxxx Islands (the "Partnership"), proposes to issue and sell
(the "OFFERING") to you (the "UNDERWRITERS"), 4,000,000 Common Units (the "FIRM
UNITS"), each representing a limited partner interest in the Partnership (the
"COMMON UNITS"). The Partnership also proposes to grant to you an option to
purchase up to 600,000 additional Common Units to cover over-allotments (the
"OPTION UNITS"). The Firm Units and the Option Units, if purchased, are
hereinafter collectively called the "UNITS." Certain terms used herein are
defined in Section 19 hereof.
Teekay GP L.L.C., a Xxxxxxxx Islands limited liability company (the
"GENERAL PARTNER"), serves as the sole general partner of the Partnership.
Teekay LNG Operating L.L.C., a Xxxxxxxx Islands limited liability company (the
"OPERATING COMPANY"), is a wholly owned direct subsidiary of the Partnership.
Teekay Luxembourg S.a.r.l., a Luxembourg company ("LUXCO"), is a wholly owned
direct subsidiary of the Operating Company. Teekay Shipping Spain S.L., a
Spanish company ("TEEKAY SPAIN"), is a wholly owned direct subsidiary of Luxco.
The entities set forth on Schedule II are wholly owned subsidiaries of Teekay
Spain and are referred to herein collectively with Luxco and Teekay
Spain as the "OPERATING SUBSIDIARIES").
The General Partner, the Partnership, the Operating Company and the
Operating Subsidiaries are hereinafter referred to collectively as the "TEEKAY
ENTITIES." The General Partner, the Partnership and the Operating Company are
hereinafter referred to collectively as the "TEEKAY PARTIES."
This is to confirm the agreement among the Teekay Parties and the
Underwriters concerning the purchase of the Firm Units and the Option Units from
the Partnership by the Underwriters.
1. Representations, Warranties and Agreements of the Teekay Parties.
Each of the Teekay Parties, jointly and severally, represents and warrants to,
and agrees with, each Underwriter that:
(a) Registration. The Partnership has prepared and filed with the
Commission a registration statement (File number 333-_______) on Form F-1,
including a related preliminary prospectus, for registration under the Act of
the offering and sale of the Units. The Partnership may have filed one or more
amendments thereto, including a related preliminary prospectus, each of which
has previously been furnished to you. The Partnership will next file with the
Commission one of the following: either (i) prior to the Effective Date of such
registration statement, a further amendment to such registration statement
(including the form of final prospectus) or (ii) after the Effective Date of
such registration statement, a final prospectus in accordance with Rules 430A
and 424(b). In the case of clause (ii), the Partnership has included in such
registration statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus, or such final prospectus, shall contain
all Rule 430A Information, together with all other such required information,
and, except to the extent Citigroup Global Markets Inc. shall agree in writing
to a modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the Partnership
has advised you, prior to the Execution Time, will be included or made therein.
(b) No Material Misstatements or Omissions. On the Effective Date, the
Registration Statement did or will, and when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date and on any date
on which Option Units are purchased hereunder, if such date is not the Closing
Date (an "OPTION CLOSING DATE"), the Prospectus (and any supplements thereto)
will, comply in all material respects with the applicable requirements of the
Act and the rules thereunder; on the Effective Date and at the Execution Time,
the Registration Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and, on the
Effective Date, the Prospectus, if not filed pursuant to Rule 424(b), will not,
and on the date of any filing pursuant to Rule 424(b) and on the Closing Date
and any Option Closing Date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading and the
statements made or to be made in such documents that are covered by Rule 175(b)
under the Act were made or will be made with a reasonable basis and in good
faith, provided, however, that the Teekay Parties make no representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Partnership by or on
behalf of any Underwriter specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto).
(c) Formation and Qualification. Each of the Teekay Entities has been
duly formed or incorporated and is validly existing as a limited partnership,
limited liability company
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or corporation, as the case may be, in good standing under the laws of its
respective jurisdiction of formation or incorporation, and is duly registered or
qualified to do business and is in good standing as a foreign limited liability
company, limited partnership or corporation, as the case may be, in each
jurisdiction in which its ownership or lease of property or the conduct of its
businesses requires such registration or qualification, except where the failure
so to register or qualify would not (i) reasonably be expected to have a
Material Adverse Effect or (ii) subject the limited partners of the Partnership
to any material liability or disability. "MATERIAL ADVERSE EFFECT," as used
throughout this Agreement, means a material adverse effect on the condition
(financial or otherwise), results of operations, business, properties, assets or
prospects of the Teekay Entities, taken as a whole, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto). Each of
the Teekay Entities has all limited liability company, limited partnership or
corporate, as the case may be, power and authority necessary to own or lease its
properties currently owned or leased or to be owned or leased at each Closing
Date, and to conduct its business as currently conducted and as to be conducted
at each Closing Date, in each case in all material respects as described in the
Registration Statement and Prospectus.
(d) Ownership of General Partner Interest in the Partnership. 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 will
be duly authorized and validly issued in accordance with the partnership
agreement of the Partnership (the "PARTNERSHIP AGREEMENT"); and the General
Partner owns such general partner interest free and clear of all pledges, liens,
encumbrances, security interests, charges, equities or other claims
(collectively, "LIENS") (except restrictions on transferability contained in the
Partnership Agreement, as described in the Prospectus, or under applicable
securities laws).
(e) Ownership of the Sponsor Units and Incentive Distribution Rights
in the Partnership. Teekay Shipping Corporation, a Xxxxxxxx Islands corporation
and the owner of the General Partner ("TSC"), owns, immediately prior to the
Offering, 8,734,572 Common Units and 14,734,572 Subordinated Units (all such
Common and Subordinated Units being collectively referred to herein as the
"SPONSOR UNITS"); and the General Partner owns 100% of the Incentive
Distribution Rights (as defined in the Partnership Agreement) (the "INCENTIVE
DISTRIBUTION RIGHTS"). All of such Sponsor Units and Incentive Distribution
Rights and the limited partner interests represented thereby have been duly
authorized and validly issued in accordance with the Partnership Agreement, and
are fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as described in the Prospectus under the caption "The
Partnership Agreement - - Limited Liability"); and TSC and the General Partner
own the Sponsor Units and the Incentive Distribution Rights, respectively, free
and clear of all Liens (except restrictions on transferability contained in the
Partnership Agreement, as described in the Prospectus or under applicable
securities laws).
(f) Valid Issuance of the Units. At the Closing Date or the Option
Closing Date, the Firm Units and the Option Units, as the case may be, and the
limited partner interests represented thereby will be duly authorized by the
Partnership Agreement and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will be validly issued,
fully paid (to the extent required under the Partnership Agreement) and
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nonassessable (except as described in the Prospectus under the caption "The
Partnership Agreement - Limited Liability").
(g) Ownership of the General Partner. TSC directly owns a 100%
membership interest in the General Partner; such membership interest has been
duly authorized and validly issued and is fully paid (to the extent required
under the limited liability company agreement of the General Partner (the
"GENERAL PARTNER LLC AGREEMENT")) and nonassessable (except as such
nonassessability may be affected by Section 51 of the Xxxxxxxx Islands Limited
Liability Company Act); and TSC owns such membership interest free and clear of
all Liens.
(h) Ownership of the Operating Company. The Partnership owns a 100%
membership interest in the Operating Company; such membership interest has been
duly authorized and validly issued in accordance with the limited liability
company agreement of the Operating Company (the "OPERATING COMPANY LLC
AGREEMENT") and is fully paid (to the extent required under the Operating
Company LLC Agreement) and nonassessable (except as such nonassessability may be
affected by Section 51 of the Xxxxxxxx Islands Limited Liability Company Act);
and the Partnership owns such membership interest free and clear of all Liens
except for Liens pursuant to the Credit Agreement (as defined in Section 19
hereof).
(i) Ownership of the Operating Subsidiaries and Acquisition
Subsidiaries. The Operating Company owns, directly or indirectly, 100% of the
equity interests in each of the Operating Subsidiaries; such equity interests
are duly authorized and validly issued in accordance with the organizational
documents of each Operating Subsidiary (the "OPERATING SUBSIDIARIES'
ORGANIZATIONAL DOCUMENTS") and are fully paid (to the extent required under the
Operating Subsidiaries' Organizational Agreements) and nonassessable (except as
such nonassessability may be affected by the applicable statutes of the
jurisdiction of formation of the applicable Operating Subsidiary); and the
Operating Company owns such equity interests free and clear of all Liens except
for Liens pursuant to the credit agreements and related security agreements
disclosed or referred to in the Prospectus. Immediately following the closing of
the acquisition of African Spirit L.L.C., Asian Spirit L.L.C. and European
Spirit L.L.C. (the "ACQUISITION SUBSIDIARIES") according to the terms and
conditions set forth in the Purchase Agreement, the Operating Company will own,
directly or indirectly, 100% of the equity interests in each of the Acquisition
Subsidiaries; such equity interests will be duly authorized and validly issued
in accordance with the organizational documents of each Acquisition Subsidiary
(THE "ACQUISITION SUBSIDIARIES ORGANIZATIONAL DOCUMENTS") and will be fully paid
(to the extent required under the Acquisition Subsidiaries Organizational
Agreements) and nonassessable (except as such nonassessability may be affected
by the applicable statutes of the jurisdiction of formation of the applicable
Acquisition Subsidiary); and the Operating Company will own such equity
interests free and clear of all Liens except for Liens pursuant to the credit
agreements and related security agreements disclosed or referred to in the
Prospectus.
(j) No Other Subsidiaries. Other than its 2.0% general partner
interest in the Partnership and the Incentive Distribution Rights, the General
Partner does not own, and at the Closing Date and the Option Closing Date, will
not own, directly or indirectly, any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture, association
or other entity. Other than (i) the Partnership's ownership of a 100% membership
interest in the Operating Company and (ii) the Operating Company's ownership
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(directly or indirectly) of 100% of the equity interests in each of the
Operating Subsidiaries and in the Acquisition Subsidiaries, neither the
Partnership nor the Operating Company owns, and at the Closing Date and the
Option Closing Date, neither will own, directly or indirectly, any equity or
long-term debt securities of any corporation, partnership, limited liability
company, joint venture, association or other entity.
(k) No Preemptive Rights or Options. Except as described in the
Prospectus or herein, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer
of, any equity interests of any of the Teekay Entities. Except as described in
the Prospectus, there are no outstanding options or warrants to purchase (i) any
Common Units, Subordinated Units, Incentive Distribution Rights or other
interests in the Partnership, (ii) any membership interests in the Operating
Company, (iii) to the Teekay Parties' knowledge, any membership interests in the
General Partner, or (iv) any equity interests in any Operating Subsidiary or the
Acquisition Subsidiaries.
(l) No Registration Rights. No holder of securities of any of the
Teekay Entities has rights to the registration of such securities under the
Registration Statement, except for any rights of TSC with respect to this
Offering, which rights it has waived.
(m) Capitalization. As of June 30, 2005 and based on the assumptions
set forth in the Prospectus, the Partnership would have had, on an as adjusted
basis indicated in the Prospectus (and any amendment or supplement thereto), a
capitalization as set forth in the "Capitalization" section thereof.
(n) Authority and Authorization. The Partnership has all requisite
limited partnership power and authority to issue, sell and deliver the Units in
accordance with and upon the terms and conditions set forth in this Agreement,
the Partnership Agreement, the Registration Statement and the Prospectus and to
acquire the equity interests in the Acquisition Subsidiaries pursuant to the
terms of the Purchase Agreement. At the Closing Date and the Option Closing
Date, all corporate, partnership and limited liability company action, as the
case may be, required to be taken by the Teekay Entities or any of their
stockholders, partners or members for the (i) authorization, issuance, sale and
delivery of the Units contemplated by this Agreement and (ii) execution,
delivery and performance of the Purchase Agreement shall have been validly
taken.
(o) Enforceability of this Agreement. This Agreement has been duly
authorized, validly executed and delivered by each of the Teekay Parties.
(p) Enforceability of Operative Agreements.
(i) the General Partner LLC Agreement has been duly authorized,
executed and delivered by TSC;
(ii) the Partnership Agreement has been duly authorized, executed
and delivered by the General Partner and TSC and is a valid and legally
binding agreement of the General Partner and TSC, enforceable against the
General Partner and TSC in accordance with its terms;
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(iii) the Operating Company LLC Agreement has been duly
authorized, executed and delivered by the Partnership; and
(iv) each of the Operating Subsidiaries' Organizational Documents
have been duly authorized, executed and delivered by the appropriate Teekay
Entity;
provided that, with respect to each agreement described in this Section 1(p),
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and, provided further, that the indemnity, contribution and exoneration
provisions contained in any of such agreements may be limited by applicable laws
and public policy.
The General Partner LLC Agreement, the Partnership Agreement, the
Operating Company LLC Agreement, and the Operating Subsidiaries' Organizational
Documents are herein collectively referred to as the "OPERATIVE AGREEMENTS."
(q) Enforceability of the Purchase Agreement. The General Partner has
the power and authority to enter into, on behalf of the Partnership, the
Purchase Agreement between TSC and the Partnership related to the acquisition of
the entities that own the Suezmax tankers the African Spirit, the Asian Spirit
and the European Spirit (the "PURCHASE AGREEMENT") and to carry out its
obligations thereunder. The Purchase Agreement has been duly authorized, validly
executed and delivered by the General Partner, on behalf of the Partnership, and
is a valid and legally binding agreement of the Partnership, enforceable against
it in accordance with its terms, except as such enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws relating to or affecting creditors' rights generally
and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and, provided, further, that
the indemnity provisions contained in the Purchase Agreement may be limited by
applicable laws and public policy.
(r) No Conflicts. None of the offering, issuance and sale by the
Partnership of the Units, the execution, delivery and performance of this
Agreement, the Operative Agreements or the Purchase Agreement by the Teekay
Entities that are parties hereto or thereto, or the consummation of the
transactions contemplated hereby and thereby (i) conflicts or will conflict with
or constitutes or will constitute a violation of any agreement of limited
partnership, limited liability company agreement, certificate of incorporation
or bylaws or other organizational documents of any of the Teekay Entities, (ii)
conflicts or will conflict with or constitutes or will constitute a breach or
violation of, or a default (or an event that, with notice or lapse of time or
both, would constitute such a default) under, any indenture, contract, mortgage,
deed of trust, note agreement, loan agreement, lease or other agreement, or
instrument to which any of the Teekay Entities is a party or by which any of
them or any of their respective properties may be bound, (iii) violates or will
violate any statute, law, rule, regulation, judgment, order or decree applicable
to any of the Teekay Entities of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction
over any of the Teekay Entities or any of their properties, or (iv) results or
will result in the creation or imposition of any Lien upon any property or
assets of any of the Teekay Entities (other than Liens referred to or described
in the Prospectus), which conflicts, breaches, violations, defaults or Liens, in
the case
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of clauses (ii), (iii) or (iv), could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or could materially
impair the ability of any of the Teekay Entities to perform their obligations
under this Agreement, the Operative Agreements or the Purchase Agreement.
(s) No Consents. Except for (i) the registration of the Units under
the Act, (ii) such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and applicable state securities or "Blue Sky" laws
in connection with the purchase and distribution of Units by the Underwriters,
(iii) such consents (as defined herein) that have been, or prior to the Closing
Date will be, obtained, (iv) such consents that, if not obtained, would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or could not reasonably be expected to materially impair the
ability of any of the Teekay Entities to perform their obligations under this
Agreement, the Operative Agreements or the Purchase Agreement, and (v) as
disclosed in the Prospectus, no permit, consent, approval, authorization, order,
registration, filing or qualification ("CONSENT") of or with any court,
governmental agency or body having jurisdiction over any of the Teekay Entities
or any of their respective properties is required in connection with the
offering, issuance and sale by the Partnership of the Units, the execution,
delivery and performance of this Agreement and the Purchase Agreement by the
Teekay Entities parties hereto or thereto, or the consummation of the
transactions contemplated by this Agreement or the Purchase Agreement.
(t) No Default. None of the Teekay Entities is (i) in violation of its
agreement of limited partnership, limited liability company agreement,
certificate of incorporation or bylaws or other organizational documents, (ii)
in breach of or in default under (and no event that, with notice or lapse of
time or both, would constitute such a default has occurred or is continuing
under) any term, covenant, obligation, agreement or condition contained in any
indenture, mortgage, deed of trust, note agreement, loan agreement, lease or
other agreement, obligation, condition, covenant or instrument to which it is a
party or by which it is or may be bound or to which any of its properties or
assets is subject or (iii) in violation of any statute, law, rule, regulation,
judgment, order or decree applicable to any of the Teekay Entities of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over any of the Teekay Entities or any of their
properties, which breach, default or violation, in the case of clause (ii) or
(iii), would, if continued, reasonably be expected to have a Material Adverse
Effect, or could reasonably be expected to materially impair the ability of any
of the Teekay Entities to perform their obligations under this Agreement, the
Operative Agreements or the Purchase Agreement. To the knowledge of the Teekay
Parties, no third party to any indenture, contract, mortgage, deed of trust,
note agreement, loan agreement, lease or other agreement, obligation, condition,
covenant or instrument to which any of the Teekay Entities is a party or by
which any of them are bound or to which any of their properties are subject, is
in default under any such agreement, which breach, default or violation would,
if continued, reasonably be expected to have a Material Adverse Effect.
(u) Conformity of Securities to Description in Prospectus. The Units,
when issued and delivered in accordance with the terms of the Partnership
Agreement against payment therefor as provided herein will conform, and the
Sponsor Units and the Incentive Distribution Rights conform, in all material
respects to the descriptions thereof contained in the Prospectus.
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(v) No Material Adverse Change. Since the date of the latest audited
financial statements included in the Prospectus and other than as set forth in
or contemplated by the Prospectus, (i) no Teekay Entity has sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, investigation, order or decree, (ii) there has
not been any material change in the capitalization or material increase in the
short-term debt or long-term debt of the Teekay Entities or any material adverse
change, or any development involving or which could reasonably be expected to
involve, individually or in the aggregate, a prospective material adverse change
in or affecting the general affairs, condition (financial or otherwise), results
of operations, business, properties, assets or prospects of the Teekay Entities,
taken as a whole, and (iii) none of the Teekay Entities has incurred any
liability or obligation, direct, indirect or contingent, or entered into any
transactions, whether or not in the ordinary course of business, that,
individually or in the aggregate, is material to the Teekay Entities, taken as a
whole, or otherwise than as set forth or contemplated in the Prospectus
(exclusive of any supplement thereto).
(w) Financial Statements. The consolidated historical financial
statements (including the related notes and supporting schedules) included in
the Prospectus and the Registration Statement (i) present fairly in all material
respects the financial condition, results of operations and cash flows of the
entities purported to be shown thereby on the basis stated therein, at the
respective dates or for the respective periods indicated, (ii) comply as to form
in all material respects with the applicable accounting requirements of the Act
and (iii) have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved (except
as otherwise noted therein). The summary historical and pro forma financial and
operating information set forth in the Prospectus (and any amendment or
supplement thereto) under the caption "Summary Historical and Pro Forma
Financial and Operating Data" and the selected historical and pro forma
financial and operating data set forth in the Registration Statement and
Prospectus under the caption "Selected Historical and Pro Forma Financial and
Operating Data" is accurately presented in all material respects and prepared on
a basis consistent with the audited and unaudited historical financial
statements and pro forma financial statements, as applicable, from which it has
been derived. The pro forma financial statements included in the Prospectus and
the Registration Statement include assumptions that provide a reasonable basis
for presenting the significant effects directly attributable to the transactions
and events described therein; the related pro forma adjustments give appropriate
effect to those assumptions; and the pro forma adjustments reflect the proper
application in all material respects of those adjustments to the historical
financial statement amounts in the pro forma financial statements included in
the Prospectus and the Registration Statement. The pro forma financial
statements included in the Prospectus and the Registration Statement comply as
to form in all material respects with the applicable accounting requirements of
Regulation S-X under the Act.
(x) Independent Registered Public Accounting Firm. The accountants,
Ernst & Young LLP, who have certified or shall certify the financial statements
of Luxco, Teekay Spain, the Partnership and the General Partner and delivered
their report with respect to the audited consolidated financial statements
included in the Prospectus, were and are the independent registered public
accounting firm with respect to such entities within the meaning of
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the Act and the applicable published rules and regulations thereunder and the
rules and regulations of the Public Company Accounting Oversight Board.
(y) Transfer Taxes. There are no transfer taxes or other similar fees
or charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution and
delivery of this Agreement, the issuance by the Partnership or sale by the
Partnership of the Units or the consummation of the transactions contemplated by
this Agreement.
(z) Title to Properties. The Operating Company and the Operating
Subsidiaries have good and marketable title to all real property and good title
to all personal property described in the Prospectus as owned by the Operating
Company and the Operating Subsidiaries, and each Operating Subsidiary identified
on Exhibit B is the sole owner of the vessel set forth opposite its name on
Exhibit B (the "VESSELS"), in each case free and clear of all Liens except (i)
as described, and subject to the limitations contained, in the Prospectus or
(ii) as do not materially affect the value of such property, taken as a whole,
and do not materially interfere with the use of such properties, taken as a
whole, as they have been used in the past and are proposed to be used in the
future, as described in the Prospectus (the Liens described in clauses (i) and
(ii) above being "PERMITTED LIENS"); provided that with respect to any interest
in real property and buildings held under lease by the Operating Company or any
of the Operating Subsidiaries, such real property and buildings are held under
valid and subsisting and enforceable leases (except as may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law)), with such exceptions as do not materially
interfere with the use of the properties of the Teekay Entities, taken as a
whole as they have been used in the past as described in the Prospectus and are
proposed to be used in the future as described in the Prospectus.
(aa) Vessel Registration. Each vessel identified in Exhibit B is duly
registered under the laws of the jurisdiction set forth on Exhibit B in the name
of the applicable Operating Subsidiary or other Teekay Entity identified in
Exhibit B, free and clear of all Liens except for Permitted Liens.
(bb) Permits. Each of the Teekay Entities has such permits, consents
(as defined above), licenses, franchises, concessions, certificates and
authorizations ("PERMITS") of, and has made all declarations and filings with,
all Federal, provincial, state, local or foreign governmental or regulatory
authorities, all self-regulatory organizations and all courts and other
tribunals, as are necessary to own or lease its properties and to conduct its
business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus and except for such
permits, declarations and filings that, if not obtained, would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
except as set forth in the Prospectus, each of the Teekay Entities has fulfilled
and performed all its material obligations with respect to such permits which
are or will be due to have been fulfilled and performed by such date and no
event has occurred that would prevent the permits from being renewed or reissued
or that allows, or after notice or lapse of time would allow, revocation or
termination thereof or results or would result in any impairment of the rights
of the holder of any
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such permit, except for such non-renewals, non-issues, revocations, terminations
and impairments that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and none of such permits contains
any restriction that is materially burdensome to the Teekay Entities, taken as a
whole.
(cc) Insurance. Except as set forth in the Prospectus with respect to
off hire insurance, the Teekay Entities are insured by insurers of recognized
financial responsibility covering against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; all policies of insurance insuring the Teekay Entities or their
respective businesses, assets, employees, officers and directors are in full
force and effect; the Teekay Entities are in compliance with the terms of such
policies and instruments in all material respects; and there are no claims by
any of the Teekay Entities under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause; none of the Teekay Entities has been refused any insurance
coverage sought or applied for; and the General Partner believes that each of
the Teekay Entities will be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not reasonably
be expected to have a Material Adverse Effect.
(dd) Contracts to be Described or Filed. To the best knowledge of the
Teekay Parties, there is no agreement, franchise, contract, indenture, lease or
other document or instrument of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required.
(ee) Litigation. There is (i) no action, suit or proceeding before or
by any court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending or, to the knowledge of the Teekay Parties, threatened, to
which any of the Teekay Entities is or could reasonably be expected to be made a
party or to which the business or property of any of the Teekay Entities is or
could reasonably be expected to be made subject or that would be required to be
disclosed in the Registration Statement which is not adequately disclosed in the
Prospectus as required, (ii) no statute, rule, regulation or order that has been
enacted, adopted or issued by any governmental agency or, to the knowledge of
the Teekay Parties, that has been proposed by any governmental agency, and (iii)
no injunction, restraining order or order of any nature issued by a Federal or
state court or foreign court of competent jurisdiction to which any of the
Teekay Entities is or may be subject, that, in the case of clauses (i), (ii) and
(iii) above, (A) could reasonably be expected to (1) individually or in the
aggregate have a Material Adverse Effect, or (2) prevent or result in the
suspension of the offering and issuance of the Units, or (B) questions the
validity of this Agreement, any Operative Agreement or the Purchase Agreement.
(ff) Certain Relationships and Related Transactions. No relationship,
direct or indirect, exists between or among any Teekay Entity, on the one hand,
and the directors, officers, members, partners, stockholders, customers or
suppliers of any Teekay Entity on the other hand that is required to be
described in the Prospectus that is not so described. There are no outstanding
loans, advances (except normal advances for business expenses in the ordinary
course of business) or guarantees of indebtedness by any Teekay Entity to or for
the benefit of any of the officers, directors or managers of any Teekay Entity
or their respective family members, except as disclosed in the Registration
Statement and the Prospectus. No Teekay
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Entity has, in violation of the Xxxxxxxx-Xxxxx Act of 2002, directly or
indirectly, extended or maintained credit, arranged for the extension of credit,
or renewed an extension of credit, in the form of a personal loan to or for any
director or executive officer of any Teekay Entity.
(gg) Xxxxxxxx-Xxxxx Act of 2002. The Partnership is in compliance in
all material respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act
of 2002 and the rules and regulations of the Commission, the NYSE (as defined in
Section 1(oo) hereof) that are effective and applicable to the Partnership.
(hh) No Labor Dispute. No labor problem or dispute with the employees
of the Teekay Entities exists or is threatened or imminent, and none of the
Teekay Parties is aware of any existing or imminent labor disturbance by the
employees of any of its principal suppliers, contractors or customers, that, in
each case, could reasonably be expected to have a Material Adverse Effect.
(ii) Tax Returns. Each of the Teekay Entities has filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file
could not reasonably be expected to have a Material Adverse Effect) and has paid
all taxes required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as could not reasonably be expected to have a
Material Adverse Effect.
(jj) Books and Records. Each Teekay Entity maintains systems of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S. generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(kk) Environmental Compliance. Each Teekay Entity (i) is in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or Hazardous Materials (as defined below) ("ENVIRONMENTAL LAWS"),
(ii) has received and is in compliance with all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its
business, (iii) has not received notice of any actual or potential liability
under any environmental law, and (iv) is not a party to or affected by any
pending or, to the knowledge of the Teekay Parties, threatened action, suit or
proceeding, is not bound by any judgment, decree or order, and has not entered
into any agreement, in each case relating to any alleged violation of any
Environmental Law or any actual or alleged release or threatened release or
cleanup at any location of any Hazardous Materials, except where such
noncompliance or deviation from that described in (i) - (iv) above could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. None of the Teekay Entities has been named as a "potentially
responsible party" under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ("CERCLA"). The term "HAZARDOUS MATERIAL"
means (A)
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any "hazardous substance" as defined in CERCLA, (B) any "hazardous waste" as
defined in the Resource Conservation and Recovery Act, as amended, (C) any
petroleum or petroleum product, (D) any polychlorinated biphenyl and (E) any
pollutant or contaminant or hazardous, dangerous or toxic chemical, material,
waste or substance regulated under or within the meaning of any other
Environmental Law.
(ll) Effect of Environmental Laws. In the ordinary course of its
business, each Teekay Entity periodically reviews the effect of Environmental
Laws on its business, operations and properties, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, each Teekay Entity
has reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, have a Material Adverse Effect.
(mm) Intellectual Property. Each of the Teekay Entities owns or
possess' rights to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx registrations,
copyrights, technology, know-how and other intellectual property necessary for
the conduct of their respective businesses, except where the failure to possess
such rights could not reasonably be expected to have a Material Adverse Effect,
and the Teekay Parties believe that the conduct by the Teekay Entities of their
respective businesses will not conflict with, and the Teekay Entities have not
received any notice of any claim of conflict with, any such rights of others.
(nn) No Distribution of Other Offering Materials. None of the Teekay
Entities has distributed and, prior to the later to occur of (i) the Closing
Date and (ii) completion of the distribution of the Units, will not distribute,
any prospectus (as defined under the Act) in connection with the offering and
sale of the Units other than the Registration Statement, any Preliminary
Prospectus, the Prospectus or other materials, if any, permitted by the Act,
including Rule 134 under the Act.
(oo) NYSE Listing. The Units have been approved for listing on the New
York Stock Exchange ("NYSE"), subject only to official notice of issuance.
(pp) Investment Company/Public Utility Holding Company. None of the
Teekay Entities is now, and after the sale of the Units to be sold by the
Partnership hereunder and application of the net proceeds from such sale as
described in the Prospectus under the caption "Use of Proceeds" and after giving
effect to the Offering will be, (i) an "investment company" or a company
"controlled by" an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations thereunder (the
"1940 ACT") or (ii) a "public utility company," "holding company" or a
"subsidiary company" of a "holding company" under the Public Utility Holding
Company Act of 1935, as amended.
(qq) Passive Foreign Investment Company. To the best knowledge of the
Teekay Parties, the Partnership is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1296 of the Code.
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(rr) Tax Passthrough Status. None of the Teekay Entities has elected
to be treated as a corporation for United States federal income tax purposes.
Each of the Teekay Entities has properly elected not to be treated as a
corporation for United States federal income tax purposes (other than any Teekay
Entity that is classified other than as a corporation without regard to whether
it makes an election).
(ss) Foreign Corrupt Practices Act. No Teekay Entity nor any director,
officer, agent, employee or affiliate of any Teekay Entity, is aware of or has
taken any action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as amended (such act,
including the rules and regulations thereunder, the FCPA"), including, without
limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
"foreign official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA and each of the Teekay Entities and its
affiliates have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance therewith.
(tt) Sanctions Laws and Regulations. Neither the sale of the Units by
the Partnership hereunder nor the use of the proceeds thereof will cause any
U.S. person participating in the offering, either as underwriter and/or
purchasers of the Units, to violate the Trading With the Enemy Act, as amended,
the International Emergency Economic Powers Act, as amended, or any foreign
asset control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) (all such laws and regulations collectively
referred to as the "SANCTIONS LAWS AND REGULATIONS") or any enabling legislation
or executive order relating thereto.
(uu) OFAC. None of the Teekay Entities is, and, to the knowledge of
the Teekay Parties, no director, officer, agent, employee or affiliate of any of
the Teekay Entities is, currently subject to any U.S. sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury Department ("OFAC");
and the Teekay Entities will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(vv) Money Laundering Laws. The operations of the Teekay Entities are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the "MONEY LAUNDERING LAWS") and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving any of the Teekay Entities with
respect to the Money Laundering Laws is pending or, to the best knowledge of the
Teekay Parties, threatened.
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(ww) Brokers. Except as described in the Prospectus, there are no
contracts, agreements or understandings between any Teekay Entity and any person
that would give rise to a valid claim against any Teekay Entity or any
Underwriter for a brokerage commission, finder's fee or other like payment in
connection with this offering of the Units.
(xx) Market Stabilization. None of the Teekay Entities has taken,
directly or indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Units.
(yy) Prohibition on Dividends. Except as provided in the Credit
Agreement and by Section 40 of the Xxxxxxxx Islands Limited Liability Company
Act of 1996, neither the Operating Company nor any Operating Subsidiary is
prohibited, directly or indirectly, from paying any dividends to the Partnership
or the Operating Company, as the case may be, from making any other distribution
on such subsidiary's equity securities, from repaying to the Partnership or the
Operating Company any loans or advances to such subsidiary from the Partnership
or the Operating Company or from transferring any of such subsidiary's property
or assets to the Partnership, the Operating Company or any other subsidiary of
the Partnership.
(zz) Statistical and Market Data. The statistical and market-related
data included in the Prospectus and the Registration Statement are based on or
derived from sources which the Teekay Parties believe to be reliable and
accurate.
Any certificate signed by any officer of any Teekay Entity and
delivered to the Underwriters or to counsel for the Underwriters in connection
with the closing of the Offering shall be deemed a representation and warranty
by such Teekay Entity, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
-----------------
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Partnership, at a purchase price of $_______ per Unit, the
amount of the Firm Units set forth opposite such Underwriter's name on Schedule
I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership hereby grants
an option to the Underwriters to purchase, severally and not jointly, up to
600,000 Option Units at the same purchase price per Unit as the Underwriters
shall pay for the Firm Units. Said option may be exercised only to cover
over-allotments in the sale of the Firm Units by the Underwriters. Said option
may be exercised in whole or in part at any time and from time to time on or
before the 30th day after the date of the Prospectus upon written or telegraphic
notice by the Underwriters to the Partnership setting forth the number of Option
Units as to which the several Underwriters are exercising the option and the
settlement date. The number of Option Units to be purchased by each Underwriter
shall be the same percentage of the total number of Option Units to be purchased
by the several Underwriters as such Underwriter is purchasing of the Firm Xxxxx,
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subject to such adjustments as Citigroup Global Markets Inc. in its absolute
discretion shall make to eliminate any fractional Units.
3. Delivery and Payment. Delivery of and payment for the Firm Units
and the Option Units (if the option provided for in Section 2(b) hereof shall
have been exercised on or before the third Business Day prior to the Closing
Date) shall be made at _____ AM, New York City time, on _____, 2005 at the
offices of Xxxxxxx Coie LLP, Portland, Oregon, or at such time on such later
date not more than three Business Days after the foregoing date as Citigroup
Global Markets Inc. shall designate, which date and time may be postponed by
agreement between Citigroup Global Markets Inc. and the Partnership or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Units being herein called the "CLOSING DATE"). Delivery of the Units shall be
made to Underwriters for their respective accounts against payment by the
several Underwriters of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to an account specified
by the Partnership. Delivery of the Units shall be made through the facilities
of The Depository Trust Company ("DTC") unless Citigroup Global Markets Inc.
shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Partnership will deliver
the Option Units (at the expense of the Partnership) to Citigroup Global Markets
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by
Citigroup Global Markets Inc. (which shall be within three Business Days after
exercise of said option) for the respective accounts of the several Underwriters
against payment by the Underwriters of the purchase price thereof to or upon the
order of the Partnership by wire transfer payable in same-day funds to an
account specified by the Partnership. Delivery of the Option Units shall be made
through the facilities of DTC unless Citigroup Global Markets Inc. shall
otherwise instruct. If settlement of the Option Units occurs after the Closing
Date, the Partnership will deliver to the Underwriters on the Option Closing
Date for the Option Units, and the obligation of the Underwriters to purchase
the Option Units shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Units for sale to the public as set forth in
the Prospectus.
5. Agreements. Each of the Teekay Parties, jointly and severally,
agrees with the several Underwriters that:
(a) Preparation of Prospectus and Registration Statement. The Teekay
Parties will use their best efforts to cause the Registration Statement, if not
effective at the Execution Time, and any amendment thereof, to become effective.
Prior to the termination of the offering of the Units, the Partnership will not
file any amendment of the Registration Statement or supplement to the Prospectus
or any Rule 462(b) Registration Statement unless the Partnership has furnished
you a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Prospectus is otherwise required under Rule
424(b), the Partnership will cause the
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Prospectus, properly completed, and any supplement thereto to be filed in a form
approved by Citigroup Global Markets Inc. with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to Citigroup Global Markets Inc. of such timely
filing. The Partnership will promptly advise Citigroup Global Markets Inc. (i)
when the Registration Statement, if not effective at the Execution Time, shall
have become effective, (ii) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule 424(b)
or when any Rule 462(b) Registration Statement shall have been filed with the
Commission, (iii) when, prior to termination of the offering of the Units, any
amendment to the Registration Statement shall have been filed or become
effective, (iv) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (vi) of the receipt by the Partnership of any notification with
respect to the suspension of the qualification of the Units for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Partnership will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) Filing of Amendment or Supplement. If, at any time when a
prospectus relating to the Units is required to be delivered under the Act, any
event occurs as a result of which the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the Act
or the rules thereunder, the Partnership promptly will (i) notify Citigroup
Global Markets Inc. of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5,
an amendment or supplement which will correct such statement or omission or
effect such compliance, and (iii) supply any supplemented Prospectus to you in
such quantities as you may reasonably request.
(c) Reports to Unitholders. As soon as practicable, but in any event
not later than 90 days after the close of the period covered thereby, the
Partnership will make generally available to its unitholders and to Citigroup
Global Markets Inc. an earnings statement or statements of the Teekay Entities
(excluding the General Partner) which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) Copies of Reports. The Partnership will furnish or make available
via the Commission's Electronic Data Gathering Analysis and Retrieval (XXXXX)
System to its unitholders annual reports containing financial statements audited
by independent public accountants and quarterly reports containing financial
statements and financial information which may be unaudited. The Partnership
will, for a period of two years from the Closing Date, furnish or make available
via the Commission's Electronic Data Gathering Analysis and Retrieval (XXXXX)
System, to the Underwriter a copy of each annual report, quarterly report,
current report and all other documents, reports and information furnished by the
Partnership to holders of Units (excluding any periodic income tax reporting
materials) or filed with any
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securities exchange or market pursuant to the requirements of such exchange or
market or with the Commission pursuant to the Act or the Exchange Act (other
than any annual CEO certification and annual written affirmations to the NYSE).
(e) Signed Copies of the Registration Statement. The Partnership has
furnished to Citigroup Global Markets Inc. and counsel for the Underwriters
photocopies of signed copies of the Registration Statement (including exhibits
thereto).
(f) Qualification of Securities. The Partnership will arrange, if
necessary, for the qualification of the Units for sale under the laws of such
jurisdictions as the Underwriters may reasonably designate and will maintain
such qualifications in effect so long as reasonably required for the
distribution of the Units; provided that in no event shall the Partnership be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of process in
suits, other than those arising out of the offering or sale of the Units, in any
jurisdiction where it is not now so subject. The Partnership will, from time to
time, prepare and file such statements and reports as are or may be reasonably
required of it to continue such qualifications in effect for so long a period as
the Underwriters may reasonably request for the distribution of the Units.
(g) Lock-up Period; Lock-up Letters. The Teekay Entities will not,
without the prior written consent of Citigroup Global Markets Inc., offer, sell,
contract to sell, pledge, or otherwise dispose of, or enter into any transaction
which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due
to cash settlement or otherwise) by the Teekay Entities or any affiliated
company of the Teekay Entities, directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder with respect to, any Common Units or any securities convertible into,
or exercisable, or exchangeable for, Common Units, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the date
of this Agreement (the "RESTRICTED PERIOD"); provided, however, that the
Partnership may grant restricted units or options to purchase Common Units under
the Partnership's 2005 Long-Term Incentive Plan. If (1) during the last 17 days
of the Restricted Period any of the Teekay Entities issues an earnings release
or announces material news or the occurrence of a material event relating to any
of the Teekay Entities or (2) prior to the expiration of the Restricted Period
any of the Teekay Entities announces that it will release earnings results
during the 16 day period beginning on the last day of the Restricted Period,
then the foregoing restrictions shall continue to apply until the expiration of
the 18 day period beginning on the issuance of the earnings release or the
announcement of the material news or material event.
(h) Compliance with Xxxxxxxx-Xxxxx Act. Each of the Teekay Entities
will comply in all material respects with all applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002.
(i) Price Manipulation. The Teekay Entities will not take, directly or
indirectly, any action designed to or that would constitute or that could
reasonably be expected to
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cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Partnership to facilitate the
sale or resale of the Units.
(j) Expenses. The Partnership agrees to pay the costs and expenses
relating to the following matters: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus, the
Prospectus, and each amendment or supplement to any of them; (ii) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and all amendments or
supplements to any of them, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Units; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for
the Units, including any stamp or transfer taxes in connection with the original
issuance and sale of the Units; (iv) the printing (or reproduction) and delivery
of this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the
Units; (v) the registration of the Units under the Exchange Act and the listing
of the Units on the NYSE; (vi) any registration or qualification of the Units
for offer and sale under the securities or blue sky laws of the several states
(including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vii) any filings
required to be made with the National Association of Securities Dealers, Inc.
("NASD") (including filing fees); (viii) the transportation and other expenses
incurred by or on behalf of Partnership representatives in connection with
presentations to prospective purchasers of the Units; (ix) the fees and expenses
of the Partnership's accountants and the fees and expenses of counsel (including
local and special counsel) for the Partnership; and (x) all other costs and
expenses of the Partnership or the Teekay Entities incident to the performance
by them of their obligations hereunder. Notwithstanding the foregoing, it is
understood that, except as expressly provided in this subsection (j), and
Section 7 and 8 hereof, the Underwriters will pay all of their own costs and
expenses, including without limitation, fees and disbursements of their counsel,
transfer taxes on the resale by them of any of the Units, the transportation and
other expenses incurred by or on their behalf in connection with presentations
to potential purchasers of Units and any advertising expenses relating to offers
of Units they may make.
(k) Use of Proceeds. The Teekay Entities will use the net proceeds
received by them from the sale of the Units in the manner specified in the
Prospectus under "Use of Proceeds."
(l) Investment Company; PFIC. For a period of five years after the
Closing Date or, if later, the Option Closing Date, the Partnership will use its
best reasonable efforts to ensure that (i) no Teekay Entity, nor any subsidiary
thereof, shall become an "investment company" as defined in the 1940 Act, and
(ii) the Partnership shall not become a PFIC.
(m) Sanctions Laws and Regulations. The Partnership will not take, and
will cause each subsidiary not to take, directly or indirectly, any action that
could reasonably be expected to result in a violation by any U.S. person
participating in the offering of the Sanctions Laws and Regulations with respect
to the sale of the Units hereunder. Further, the Partnership will not use, and
will cause each subsidiary not to use, the proceeds from the sale of the Xxxxx,
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directly or indirectly, for any purpose or activity that would cause the
Underwriters or any purchaser of the Units to be in violation of the Sanctions
Laws and Regulations or any agent or "Specially Designated National" of any
country the subject of the Sanctions Laws and Regulations, or any person or
entity of any country the subject of the Sanctions Laws and Regulations.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Firm Units and the Option Units, as the case
may be, shall be subject to the accuracy of the representations and warranties
on the part of the Teekay Parties contained herein as of the Execution Time, the
Closing Date and any Option Closing Date pursuant to Section 3 hereof, to the
accuracy of the statements of the Teekay Parties made in any certificates
delivered pursuant to the provisions hereof, to the performance by the Teekay
Parties of their obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Underwriters agree in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00 PM New
York City time on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 PM New York City time on such
date or (ii) 9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after 3:00 PM New
York City time on such date; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) All corporate, partnership and limited liability company
proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the Operative Agreements, the Purchase Agreement,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Partnership shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(c)(1) The Partnership shall have requested and caused Xxxxxx, Xxxxxx
& Xxxxxxxx (New York) LLP, special Xxxxxxxx Islands counsel for the Partnership,
to have furnished to you their written opinion, dated the Closing Date and
addressed to you, in form and substance reasonably satisfactory to the
Underwriters, to the effect that:
(i) The Partnership. The Partnership has been duly formed and is
validly existing in good standing as a limited partnership under the law of
the Republic of The Xxxxxxxx Islands, and has the limited partnership power
and authority to own or lease its properties and to conduct its business,
in each case in all material respects as described in the Registration
Statement and the Prospectus.
(ii) The General Partner and the Operating Company. Each of the
General Partner and the Operating Company has been duly formed and is
validly existing
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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
Registration Statement and the Prospectus.
(iii) Operating Subsidiaries. Each of the subsidiaries of the
Partnership listed on Schedule III (the "XXXXXXXX ISLANDS SUBSIDIARIES") 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 Registration Statement and the Prospectus.
(iv) Ownership of the General Partner Interest in the
Partnership. The General Partner is the sole general partner of the
Partnership with a 2% general partner interest in the Partnership; such
general partner interest has been duly authorized and validly issued in
accordance with the Partnership Agreement; and, to counsel's knowledge, the
General Partner owns its general partner interest free and clear of all
Liens (except for restrictions on transferability contained in the
Partnership Agreement, as described in the Prospectus or under applicable
securities laws).
(v) Ownership of the Sponsor Units and the Incentive Distribution
Rights. TSC owns the Sponsor Units and the General Partner owns all of the
Incentive Distribution Rights; all of such Sponsor Units, the Incentive
Distribution Rights and the limited partner interests represented thereby
have been duly authorized and validly issued in accordance with the
Partnership Agreement, and are fully paid (to the extent required under the
Partnership Agreement) and nonassessable; and to counsel's knowledge, TSC
owns the Sponsor Units and the General Partner owns the Incentive
Distribution Rights, in each case free and clear of all Liens (except, with
respect to the Incentive Distribution Rights, restrictions on
transferability as described in the Prospectus or under applicable law).
(vi) Valid Issuance of the Firm Units. The Common Units to be
issued and sold to the Underwriters by the Partnership pursuant to this
Agreement and the limited partner interests represented by such Common
Units have been duly authorized by the Partnership Agreement and, when
issued and delivered to the Underwriters against payment therefor in
accordance with the terms of this Agreement, will be validly issued, fully
paid (to the extent required under the Partnership Agreement) and
nonassessable; and other than the Sponsor Units and the Incentive
Distribution Rights, the Common Units will be the only limited partner
interests of the Partnership issued and outstanding at the Closing Date
other than any awards made under the Partnership's 2005 Long-Term Incentive
Plan.
(vii) Ownership of the General Partner. TSC directly owns a 100%
membership interest in the General Partner; such membership interest has
been duly authorized and validly issued in accordance with the General
Partner LLC Agreement and is fully paid (to the extent required under the
General Partner LLC Agreement) and nonassessable;
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and, to counsel's knowledge, TSC directly owns such membership interest
free and clear of all Liens.
(viii) Ownership of the Operating Company. The Partnership owns a
100% membership interest in the Operating Company; such membership interest
has been duly authorized and validly issued in accordance with the
Operating Company LLC Agreement and is fully paid (to the extent required
under the Operating Company LLC Agreement) and nonassessable; and, to
counsel's knowledge, the Partnership owns such membership interest free and
clear of all Liens other than Liens pursuant to the credit agreements and
related security agreements disclosed or referred to in the Prospectus.
(ix) Ownership of the Xxxxxxxx Island Subsidiaries. The Operating
Company owns, directly or indirectly, 100% of the membership interest in
each Xxxxxxxx Islands Subsidiary; such membership interests have been duly
authorized and validly issued in accordance with the limited liability
company agreement of each Xxxxxxxx Islands Subsidiary and are fully paid
(to the extent required under each Xxxxxxxx Islands Subsidiary's limited
liability company agreement) and nonassessable; and, to counsel's
knowledge, the Operating Company owns such membership interests free and
clear of all Liens other the Liens pursuant to the credit agreements and
related security agreements disclosed or referred to in the Prospectus.
Immediately following the closing of the acquisition of the Acquisition
Subsidiaries according to the terms and conditions set forth in the
Purchase Agreement, the Operating Company will own, directly or indirectly,
100% of the membership interest in each of the Acquisition Subsidiaries;
such membership interests will be duly authorized and validly issued in
accordance with the limited liability company agreement of each Acquisition
Subsidiary and will be fully paid (to the extent required under each
Acquisition Subsidiary's limited liability company agreement) and
nonassessable; and to our knowledge, the Operating Company owns such
membership interests free and clear of all Liens other than Liens pursuant
to the credit agreements and related security agreements disclosed or
referred to in the Prospectus.
(x) No Preemptive Rights or Options. Except as described in the
Prospectus, there are no preemptive rights or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of, (i) any
limited partner interests in the Partnership, (ii) any membership interests
in the General Partner or the Operating Company or (iii) any equity
interests in any Xxxxxxxx Islands Subsidiary, in each case pursuant to the
limited partnership agreement, limited liability company agreement or other
organizational documents of such entity. To the knowledge of such counsel
and except as described in the Prospectus, there are no outstanding options
or warrants to purchase (A) any Common Units, Subordinated Units, Incentive
Distribution Rights or other interests in the Partnership, (B) any
membership interests in the General Partner or the Operating Company, or
(C) any equity interests in any Xxxxxxxx Islands Subsidiary.
(xi) No Registration Rights. To the knowledge of such counsel and
except for rights waived by TSC, neither the filing of the Registration
Statement nor the offering or sale of the Units as contemplated by this
Agreement gives rise to any rights
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for or relating to the registration of any securities of any of the General
Partner, the Partnership, the Operating Company or the Xxxxxxxx Islands
Subsidiaries (except, in the case of the Partnership, with respect to the
Common Units as contemplated by the Registration Statement).
(xii) Authority and Authorization. The Partnership has all
requisite limited partnership power and authority to issue, sell and
deliver the Units in accordance with and upon the terms and conditions set
forth in this Agreement, the Registration Statement and the Prospectus and
to acquire the membership interest in each of the Acquisition Subsidiaries
pursuant to the terms of the Purchase Agreement. All corporate, limited
partnership and limited liability company action, as the case may be,
required to be taken by the Teekay Parties or any of their respective
stockholders, partners or members pursuant to the law of the Republic of
The Xxxxxxxx Islands for the authorization, issuance, sale and delivery of
the Common Units and the consummation of the transactions contemplated by
this Agreement and the Purchase Agreement has been validly taken.
(xiii) Due Execution and Delivery of the Underwriting Agreement.
This Agreement has been duly authorized, validly executed and delivered by
each of the Teekay Parties.
(xiv) Enforceability of Teekay Parties Operative Agreements. Each
Teekay Party's Operative Agreement constitutes a valid and legally binding
obligation of each Teekay Party, enforceable against each such Teekay Party
in accordance with its respective terms, except that (i) the enforceability
thereof may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (ii) the indemnity, contribution and exoneration
provisions contained in any of such agreements may be limited by applicable
laws and public policy.
(xv) Purchase Agreement. The Purchase Agreement has been duly
authorized, validly executed and delivered by the Partnership.
(xvi) No Conflicts. None of the offering, issuance and sale by
the Partnership of the Common Units, the execution, delivery and
performance of this Agreement or the Purchase Agreement, or the
consummation of the transactions contemplated hereby and thereby (i)
conflicts or will conflict with or constitutes or will constitute a
violation of any Teekay Party's Operative Agreement,
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(ii) conflicts or will conflict with or constitutes or will constitute a
breach or violation of, or a default under (or an event which, with notice
or lapse of time or both, would constitute such a default), any agreement
governed by the law of the Republic of The Xxxxxxxx Islands filed as an
exhibit to the Registration Statement, (iii) violates or will violate any
statute, law, rule, regulation, judgment, order or decree known to such
counsel of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority situated in, the Republic of The
Xxxxxxxx Islands, or (iv) to our knowledge results or will result in the
creation or imposition of any Lien upon any property or assets of any of
the Teekay Parties.
(xvii) No Consents. No consent (as such term is defined in
Section 1(s) hereof) under the law of the Republic of The Xxxxxxxx Islands
is required for the offering, issuance and sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement or the
Purchase Agreement or the consummation of the transactions contemplated by
this Agreement or the Purchase Agreement.
(xviii) Permits. To the knowledge of such counsel, no permits (as
such term is defined in Section 1(bb) hereof) of, or declarations or
filings with, any governmental or regulatory authorities of the Republic of
The Xxxxxxxx Islands are required for any of the Teekay Parties to own or
lease its properties and to conduct its business in the manner described in
the Prospectus.
(xix) Vessel Registration. Each of the vessels listed on Schedule
A hereto is registered in the sole ownership of the entity indicated as the
"Owning Entity" of such vessel on such schedule under the law of the
Xxxxxxxx Islands and each such Owning Entity has record title thereto, free
and clear of all liens, claims, debts or encumbrances and defects of title
of record, except as indicated on such schedule or as described in the
Prospectus.
(xx) Accuracy of Statements. The statements in the Registration
Statement and Prospectus under the captions "Business -- Regulation --
International Maritime Organization (or IMO)," "Business -- Regulation --
Environmental Regulations -- The United States Oil Pollution Act of 1990
(or OPA 90)," "Business -- Regulation -- Environmental Regulations -- Other
Environmental Initiatives," "Business -- Taxation of the Partnership --
Xxxxxxxx Islands Taxation," "Conflicts of Interest and Fiduciary Duties"
and "The Partnership Agreement" and "Service of Process and Enforcement of
Civil Liabilities," insofar as they constitute descriptions of agreements,
fairly describe in all material respects the portions of the agreements
addressed thereby, and insofar as they purport to constitute summaries of
law or legal conclusions, fairly describe in all material respects the
portions of the statutes and regulations addressed thereby.
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(xxi) Negative Assurance. Although we have not independently
verified, are not passing on, and are not assuming any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus under the captions "Business --
Regulation -- International Maritime Organization (or IMO),"
"Business-Regulation-Environmental Regulations -- The United States Oil
Pollution Act of 1990 (or OPA 90)," "Business -- Regulation --
Environmental Regulations -- Other Environmental Initiatives," "Business --
Taxation of the Partnership -- Xxxxxxxx Islands Taxation," "Conflicts of
Interest and Fiduciary Duties," "The Partnership Agreement-Limited
Liability" and "Service of Process and Enforcement of Civil Liabilities"
(except to the extent specified in the foregoing opinion), no facts have
come to such counsel's attention that lead such counsel to believe that the
above-referenced sections of the Registration Statement, as of its
effective date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that the above-referenced sections
of the Prospectus, as of its issue date and the Closing Date, contains or
contained an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(xxii) Tax Opinion. The opinion of Xxxxxx, Xxxxxx & Xxxxxxxx that
is filed as Exhibit 8.2 to the Registration Statement is confirmed and the
Underwriters may rely upon such opinion as if it were addressed to them.
(xxiii) Choice of Law. The choice of New York law to govern this
Agreement constitutes a valid choice of law under the law of the Republic
of The Xxxxxxxx Islands.
(xxiv) Non-Exclusive Jurisdiction. The submission by the
Partnership to the non-exclusive jurisdiction of any Federal or state court
in the Borough of Manhattan, The City of New York, is a valid submission
under the law of the Republic of The Xxxxxxxx Islands.
(xxv) Enforcement of Judgments. A judgment granted by a foreign
court against the Partnership may be enforced in the Republic of The
Xxxxxxxx Islands without a retrial on the merits of the matter provided
that: (i) the judgment is for a sum of money and is final in the
jurisdiction granting the judgment; (ii) the court granting the judgment
had jurisdiction under the laws of the place where it sat and the judgment
does not offend principles of the Republic of The Xxxxxxxx Islands as to
due process, propriety or public order, and (iii) the defendant was
actually present in person or by a duly appointed representative and the
judgment does not constitute in effect a default judgment.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Teekay
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic,
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that all copies submitted to them conform to the originals thereof, and that the
signatures on all documents examined by them are genuine and (C) state that
their opinion is limited to the laws of The Republic of the Xxxxxxxx Islands and
United States federal law.
(c)(2) The Partnership shall have requested and caused Xxxxxx, Xxxxxx
& Xxxxxxxx LLP, special English counsel for the Partnership, to have furnished
to you their written opinion, dated the Closing Date and addressed to you, in
form and substance reasonably satisfactory to the Underwriters, to the effect
that
(i) an English court, applying English conflict of laws rules,
would (notwithstanding that neither TSC nor the Partnership
have any connection with England or Wales and nor that any of
the Acquisition Subsidiaries or the rights and assets sold and
purchased under the Purchase Agreement are sited in England
and Wales) hold as between TSC and the Partnership that
English law is the applicable law of the Purchase Agreement;
but in circumstances where the rights or assets are the
subject matter of a dispute with a third party or which is
referred to the courts of a jurisdiction in which these assets
or rights are sited, or in which any of the parties to such
dispute are located, an English court, applying English
conflict of laws rules, could hold that the effectiveness of
the rights and interests created by the Purchase Agreement
would be subject to determination in accordance with the laws
of the country in which a party to the dispute resides or is
formed and/or the law of the country in which the assets or
rights are situated.
(ii) no consent of any governmental or official authority in
England applicable to companies generally is required in
connection with the Purchase Agreement in order for it to be
valid or to remain enforceable under English law; and it is
not necessary to deliver or register the Purchase Agreement in
England or Wales in order to confirm its validity.
(iii) provided that all aspects of the closing of the
acquisition of the Acquisition Subsidiaries are effected
outside, and none of the related documents are brought into,
the United Kingdom, neither the Purchase Agreement nor the
transfers of the ownership interests or promissory notes
pursuant thereto will be chargeable to United Kingdom stamp
duty.
(iv) the provisions of the Purchase Agreement relating to the
sale and purchase of ownership interests in and promissory
notes issued by the Acquisition Subsidiaries are binding and
enforceable obligations. We express no opinion as to the
enforceability of the options to be granted to TSC under the
terms of the Purchase Agreement or in relation to the
warranties and indemnities expressed to be given in the
Purchase Agreement.
In rendering such opinion, such counsel may (A) rely in respect of matters of
fact upon certificates of officers and employees of the Teekay Entities and upon
information obtained from public officials, (B) assume that all documents
submitted to them as originals are authentic, that all copies submitted to them
conform to the originals thereof, and that the signatures on all documents
examined by them are genuine and (C) state that their opinion is limited to the
laws of England and Wales, and (D) state that they express no opinion with
respect to the title of any of the Teekay Entities to any property purported to
be transferred by the Purchase Agreement nor with respect to the accuracy or
descriptions of real or personal property.
(d) The Partnership shall have requested and caused Xxxxxxx Coie LLP,
counsel for the Partnership, to have furnished to you their written opinion,
dated the Closing Date and addressed to you, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) Description of Investment by Employee Benefit Plans. The
statements in the Registration Statement and Prospectus under the caption
"Investment in Teekay LNG Partners L.P. by Employee Benefit Plans," insofar
as it purports to constitute a summary of law or legal conclusions, fairly
describes in all material respects the portions of the statutes and
regulations addressed thereby
(ii) Tax Opinion. The opinion of Xxxxxxx Coie LLP that is filed
as Exhibit 8.1 to the Registration Statement is confirmed and the
Underwriters may rely upon such opinion as if it were addressed to them.
(iii) No Options. To the knowledge of such counsel and except as
described in the Prospectus, there are no outstanding options or warrants
to purchase (A) any Common Units, Subordinated Units, Incentive
Distribution Rights or other interests in the Partnership, or (B) any
membership interests in the General Partner, the Operating Company, or the
Operating Subsidiaries.
(iv) No Registration Rights. To the knowledge of such counsel,
there are no contracts, agreements or understandings between any of the
Teekay Entities and any person granting such person the right to require
any of the Teekay Entities to file a registration statement under the Act
with respect to any securities of any of the Teekay Entities owned or to be
owned by such person or to require any of the Teekay Entities to include
such securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by any Teekay Entity under the Act, except for
any such rights held by TSC pursuant to the [Partnership Agreement], which
rights have been waived with respect to this Offering.
(v) Accuracy of Statements. The statements in the Registration
Statement and Prospectus under the captions "Cash Distribution Policy,"
"Conflicts of Interest and Fiduciary Duties," "Description of the Common
Units," "The Partnership Agreement," "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Liquidity and Capital
Resources -- Credit Facilities," "Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Liquidity and Capital
Resources -- Covenants and Other Restrictions in Our Financing
Arrangements," "Business -- Time Charters -- General Provisions," "Business
-- LNG Time Charters," "Business -- Crude Oil Time Charters" and "Certain
Relationships and Related Party Transactions -- Omnibus Agreement,"
"Certain Relationships and Related Party Transactions -- Advisory and
Administrative Services Agreements," "Certain
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Relationships and Related Party Transactions -- Joint Venture with an
Entity Controlled by Xx. Xxxxxxxx Xxxxxx," "Certain Relationships and
Related Party Transactions -- Agreement to Purchase Suezmax Tankers and
Time Charters," "Certain Relationships and Related Party Transactions --
Granada Spirit Charter and Purchase Agreement," and "Certain Relationships
and Related Party Transactions -- Agreement to Purchase RasGas II
Interest," insofar as they constitute descriptions of agreements, fairly
describe in all material respects the portions of the agreements addressed
thereby, and the Common Units, the Subordinated Units and the Incentive
Distribution Rights conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus under
the captions "Summary -- The Offering," "Cash Distribution Policy,"
"Description of the Common Units" and "The Partnership Agreement";
provided, however, that such counsel need not express any opinion with
respect to Xxxxxxxx Islands law.
(vi) Effectiveness of Registration Statement. The Registration
Statement was declared effective under the Act as of _____, 2005; a Rule
462(b) Registration Statement was filed on ________, 2005 and was
immediately effective upon filing; the Prospectus was filed with the
Commission pursuant to Rule 424(b) on _______, 2005 in a manner and within
the time period required by Rule 424(b); and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that purpose
have been instituted or threatened
(vii) Compliance as to Form. The Registration Statement and the
Prospectus (other than the financial statements and other financial and
statistical information contained therein, as to which such counsel need
not express any opinion) comply as to form in all material respects with
the applicable requirements of the Act and the rules thereunder.
(viii) Legal Proceedings or Contracts to be Described or Filed.
To the knowledge of such counsel, (i) there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving any Teekay Entity or its
property of a character required to be disclosed in the Registration
Statement which is not disclosed in the Prospectus as required and (ii)
there is no agreement, franchise, contract, indenture, lease or other
document or instrument of a character that are required to be described in
the Registration Statement or the Prospectus by the Act or to be filed by
the Act as exhibits to the Registration Statement that are not described or
filed as required.
(ix) Investment Company. No Teekay Entity is an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
In addition, such counsel shall state that, in the course of such
counsel's participation, as counsel to the Partnership, in the preparation of
the Registration Statement and the Prospectus, such counsel has examined
information available to it, including legal records,
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documents and proceedings, and has attended conferences with, among others,
representatives of the Underwriters, officers and other representatives of the
Teekay Entities and the independent public accountants for the Partnership, at
which conferences the contents of the Registration Statement and the Prospectus
were discussed. Such counsel shall also state that, without undertaking to
determine independently or assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, such counsel has no reason to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; or that the
Prospectus, as of its issue date or as of the Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (except
that such counsel need not express any opinion or belief with respect to (i) any
financial statements, including the notes and schedules thereto and the
auditor's reports, if any thereon or (ii) other financial or statistical data
included in the Registration Statement or the Prospectus).
(e) The Partnership shall have requested and caused Xxxxxx Xxxxxxx,
Senior Vice President and General Counsel for TSC, to have furnished to you a
letter, dated the Closing Date and addressed to you, in form and substance
reasonably satisfactory to the Underwriters, which shall state that such counsel
has participated in conferences with officers and other representatives of the
Teekay Entities and the independent public accountants of the Partnership and
your representatives, at which the contents of the Registration Statement and
the Prospectus and related matters were discussed, and although such counsel has
not independently verified, is not passing on, and is not assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in, the Registration Statement and the Prospectus, no facts have come
to such counsel's attention that lead such counsel to believe that the
Registration Statement (other than (i) the financial statements included
therein, including the notes and schedules thereto and the auditors' reports
thereon, and (ii) the other financial and statistical information included
therein, as to which such counsel need not comment), as of its effective date
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (other than (i) the financial statements
included therein, including the notes and schedules thereto and the auditors'
reports thereon, and (ii) the other financial and statistical information
included therein, as to which such counsel need not comment), as of its issue
date and the Closing Date contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(f) The Partnership shall have requested and caused Noble &
Xxxxxxxxxxx, special Luxembourg counsel for the Partnership, to have furnished
to you their written opinion, dated the Closing Date and addressed to you, in
form and substance reasonably satisfactory to the Underwriters, to the effect
that:
(i) Luxco. Luxco is a company duly incorporated and validly
existing under the laws of Grand-Duchy of Luxembourg ("Luxembourg") and has
all requisite
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corporate capacity and power to acquire and own securities and or
participations in Luxembourg or foreign corporations and to own or lease
its properties and conduct its business, in each case in all material
respects as described in the Registration Statement and the Prospectus.
(ii) Ownership of Luxco. The issued capital of Luxco consists of
1,500 (one thousand five hundred) shares, all of which are held by the
Operating Company. All the issued shares of capital stock of Luxco have
been duly authorized, validly issued, fully subscribed for in cash and are
not assessable. To such counsel's knowledge, all of the shares of capital
stock of Luxco are free of all liens, other than those liens described in
the Agreement dated February 22, 2001, entered into by, amongst others,
Naviera Teekay Gas S.L., as Borrower, and the several banks and financial
institutions named therein.
(iii) Preemptive Rights and Warrants. To such counsel's
knowledge, no warrant or other options to acquire exists with respect to
any shares of capital stock of Luxco. There are no preemptive rights or
other rights to subscribe for or to purchase any equity interests in Luxco
pursuant to the Articles of Association of Luxco, issued by Maitre Xxxxxx
Xxxxxxxx, notary public in Luxembourg (the "Articles"). Pursuant to Article
Ten of the Articles, Luxco's shares may not be transferred to third parties
(i.e. outside the realm of its shareholders) unless shareholder
representing three-quarters of the corporate capital of Luxco have agreed
thereto in a general meeting of shareholders.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Teekay
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, and (C) state that their opinion is
limited to the laws of Luxembourg.
(g) The Partnership shall have requested and caused
PricewaterhouseCoopers, special Luxembourg tax advisor to the Partnership, to
have furnished to you their written analysis, dated the Closing Date and
addressed to you, in form and substance reasonably satisfactory to the
Underwriters, to the effect that such advisor confirms that the discussion
contained in the Prospectus under the caption "Business -- Taxation of the
Partnership -- Luxembourg Taxation" is an accurate discussion of Luxembourg tax
matters (except for the representations and statements of fact of the
Partnership included in such discussion, as to which such advisor need not
comment).
In rendering such analysis, such advisor may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Teekay
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, and (C) state that their analysis is
limited to the laws of Luxembourg.
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(h) The Partnership shall have requested and caused Uria & Xxxxxxxx,
special Spanish counsel for the Partnership, to have furnished to you their
written opinion, dated the Closing Date and addressed to you, in form and
substance reasonably satisfactory to the Underwriters, to the effect that:
(i) Formation of Spanish Subsidiaries. Each of the subsidiaries
of the Partnership listed on Schedule IV (the "SPANISH SUBSIDIARIES") was
duly incorporated and is validly existing as private limited liability
company (Sociedad de responsabilidad limitada) under the laws of Spain.
Each of the Spanish Subsidiaries has corporate power to own or lease its
properties and to conduct its business, in each case in all material
respects as described in the Registration Statement and the Prospectus.
(ii) Ownership of Spanish Subsidiaries. All of the created units
of stock of capital of each Spanish Subsidiary have been validly created
and, assuming creation against payment therefore, are fully paid. All of
the units of stock of corporate capital of the Spanish Subsidiaries are
owned, directly or indirectly, by the Operating Company free and clear of
all Liens, other than the pledges set for on Exhibit A (the "SPANISH
PLEDGES"). To counsel's knowledge, there are no outstanding rights,
warrants or options to acquire, or instruments convertible or exchangeable
for, any units of stock of any Spanish Subsidiary.
(iii) No Preemptive Rights or Options. There are no preemptive
rights or other rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of any shares of capital stock of any Spanish
Subsidiary other than those set forth in the Spanish Private Limited
Liability Companies Act (Ley 0/0000, xx 00 xx xxxxx, xx Xxxxxxxxxx de
Responsabilidad Limitada), in the Spanish Pledges, the Spanish credit
agreements of Naviera Teekay Gas III, S.L. and Naviera Teekay Gas IV, S.L.
("Spanish Credit Agreement") and in the Credit Agreement.
(iv) Permits. To the knowledge of such counsel after due inquiry,
each of the Spanish Subsidiaries has such permits of governmental or
regulatory authorities of Spain as are necessary to own or lease its
properties and to conduct its business, subject to such qualifications as
may be set forth in the Operating Subsidiaries' Organizational Documents
and except for such permits which, if not obtained, reasonable could not,
individually or in the aggregate, have a material adverse effect upon the
ability or the Partnership and its subsidiaries, taken as a whole, to
conduct their businesses in all material respects in the manner described
in the Prospectus; and, to the knowledge of such counsel after due inquiry,
none of the Spanish Subsidiaries has received any notice of proceedings in
Spain relating to the revocation or modification of any such permits which,
individually or in the aggregate could reasonably be expected to have a
material adverse effect upon the ability of the Partnership and its
subsidiaries, taken as a whole, to conduct their businesses in all material
respects in the manner described in the Prospectus.
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Teekay
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic,
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that all copies submitted to them conform to the originals thereof, and that the
signatures on all documents examined by them are genuine, and (C) state that
their opinion is limited to the laws of Spain.
(i) The Partnership shall have requested and caused Uria & Xxxxxxxx,
special Spanish tax counsel to the Partnership, to have furnished to you their
written opinion, dated the Closing Date and addressed to you, in form and
substance reasonably satisfactory to the Underwriters, to the effect that such
counsel confirms that the discussion contained in the Prospectus under the
caption "Business -- Taxation of the Partnership -- Spanish Taxation" is an
accurate discussion of relevant Spanish tax matters (except for the
representations and statements of fact of the Partnership included in such
discussion, as to which such counsel need not comment).
In rendering such opinion, such advisor may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Teekay
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, and (C) state that their opinion is
limited to the laws of Spain.
(j) The Partnership shall have requested and caused Xxxxxx & Partners,
special Canadian counsel for the Partnership, to have furnished to you their
written opinion, dated the Closing Date and addressed to you, in form and
substance reasonably satisfactory to the Underwriters, to the effect that in the
opinion of such counsel, the description in the Prospectus under the caption
"Business -- Taxation of the Partnership -- Non-United States Tax Consequences
-- Canadian Federal Income Tax Consequences" is a fair summary of the material
Canadian federal income tax consequences under the Income Tax Act (Canada) to
those holders of common units acquired in the offering described therein (except
that in such opinion counsel need not address or comment on the representations
and statements of fact of the Partnership included in such description
including, without limitation, those relating to whether the activities or
affairs of the Partnership can or will be conducted in a manner that the
Partnership will not be carrying on business in Canada).
In rendering such opinion, such counsel may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Teekay
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, and (C) state that their opinion is
limited to the laws of Canada.
(k) The Partnership shall have requested and caused
PricewaterhouseCoopers, special Qatari tax advisor to the Partnership, to have
furnished to you their written analysis, dated the Closing Date and addressed to
you, in form and substance reasonably satisfactory to the Underwriters, to the
effect that such advisor confirms that the discussion contained in the
Prospectus under the caption "Business -- Taxation of the Partnership -- Qatari
Taxation" is an accurate discussion of Qatari tax matters (except for the
representations and statements of fact of the Partnership included in such
discussion, as to which counsel need not comment).
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In rendering such opinion, such advisor may (A) rely in respect of
matters of fact upon certificates of officers and employees of the Teekay
Entities and upon information obtained from public officials, (B) assume that
all documents submitted to them as originals are authentic, that all copies
submitted to them conform to the originals thereof, and that the signatures on
all documents examined by them are genuine, and (C) state that their analysis is
limited to the laws of Qatar.
(l) The Underwriters shall have received from Xxxxx Xxxxx L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Underwriters, with respect to such matters as the
Underwriters may reasonably require, and the Partnership shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(m) The Underwriters shall have received from Xxxxxx & Xxxxxx LLP,
special Xxxxxxxx Islands counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Underwriters, with respect to such
matters as the Underwriters may reasonably require, and the Partnership shall
have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(n) The General Partner shall have furnished to the Underwriters a
certificate signed by its principal executive officer and principal financial
officer dated the Closing Date and addressed to the Underwriters, to the effect
that the signer of such certificate has carefully examined the Registration
Statement, the Prospectus, any supplements to the Prospectus and this Agreement
and that:
(i) the representations and warranties of the Teekay Parties in
this Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and each Teekay Party has
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to such officer's knowledge, threatened;
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the general affairs, condition
(financial or otherwise), results of operations, business, properties,
assets or prospects of the Teekay Entities, taken as a whole, whether or
not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto); and
(iv) such other matters as you may reasonably request.
(o) The Partnership shall have requested and caused Ernst & Young LLP
to have furnished to the Underwriters, at the Execution Time and at the Closing
Date, letters, dated respectively as of the Execution Time and as of the Closing
Date, in form and substance reasonably satisfactory to the Underwriters,
confirming that they are independent accountants
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with respect to the Teekay Entities within the meaning of the Act and the
applicable rules and regulations adopted by the Commission thereunder and
stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement and
the Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Partnership and its subsidiaries; carrying
out certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the members, partners,
stockholders, directors, managers and committees of the Teekay Entities;
and inquiries of certain officials of the Partnership who have
responsibility for financial and accounting matters of the Partnership and
its subsidiaries as to transactions and events subsequent to June 30, 2005,
nothing came to their attention which caused them to believe that:
(1) said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in the Registration Statement and the Prospectus;
(2) (i) with respect to the period subsequent to June 30, 2005,
there were any changes, at a specified date not more than five days
prior to the date of the letter, in the long-term debt of the
Partnership and its subsidiaries or decreases in the consolidated net
current assets (working capital) or partners' equity of the
Partnership and its subsidiaries as compared with the amounts shown on
the June 30, 2005 consolidated balance sheet included in the
Registration Statement and the Prospectus, or for the period from July
1, 2005 to such specified date (with respect to the Partnership and
its subsidiaries) there were any decreases, as compared with the
corresponding period during the preceding year in consolidated net
revenues or net income of Luxco, its predecessors and subsidiaries
(including, without limitation, Teekay Spain), except in all instances
for changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Partnership as to
the significance thereof unless said explanation is not deemed
necessary by the Underwriters; or
(3) the information included in the Registration Statement and
Prospectus in response to Form 20-F, Item 3A (Selected Financial Data)
and Form 20-F, Item 6B (Compensation) is not in conformity with the
applicable disclosure requirements of Form F-1 and Form 20-F;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical
-32-
nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Partnership
and its subsidiaries) set forth in the Registration Statement and the
Prospectus, including the information set forth under the captions
"Prospectus Summary -- Summary Historical and Pro Forma Financial and
Operating Data," "Capitalization," "Dilution," "Selected Historical and Pro
Forma Financial and Operating Data," and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in the
Prospectus, agrees with the accounting records of the Partnership and its
subsidiaries, excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma
financial statements included in the Registration Statement and the
Prospectus (the "pro forma financial statements"); carrying out certain
specified procedures; inquiries of certain officials of the Teekay Entities
who have responsibility for financial and accounting matters; and proving
the arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements, nothing came
to their attention which caused them to believe that the pro forma
financial statements do not comply as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation S-X or
that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Prospectus in this paragraph (o) include any
supplement thereto at the date of the letter.
(p) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (n) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the general
affairs, management, condition (financial or otherwise), stockholders' equity,
partners' equity, members' equity, results of operations, business, properties,
assets or prospects of the Teekay Entities taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above, is, in
the sole judgment of the Underwriters, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the Units
as contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
(q) Prior to the Closing Date, the Teekay Entities shall have
furnished to the Underwriters such further information, certificates and
documents as the Underwriters may reasonably request.
(r) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the debt securities of any of the Teekay
Entities, if applicable, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or any
notice given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of the
possible change.
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(s) The Units shall have been listed and admitted and authorized for
trading on the NYSE subject to official notice of issuance, and satisfactory
evidence of such actions shall have been provided to the Underwriters.
(t) At the Execution Time, the Partnership shall have furnished to the
Underwriters a letter substantially in the form of Exhibit A hereto from the
executive officers and directors of the General Partner addressed to the
Underwriters.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Partnership in
writing or by telephone or facsimile confirmed in writing.
7. Reimbursement of Underwriter's Expenses. If the sale of the Units
provided for herein is not consummated because any condition to the obligations
of the Underwriter set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Teekay Parties to perform any agreement
herein or comply with any provision hereof other than by reason of a default by
any of the Underwriters, the Teekay Parties will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been reasonably incurred by them in connection with the proposed purchase
and sale of the Units.
8. Indemnification and Contribution.
(a) The Teekay Parties, jointly and severally, agree to indemnify and
hold harmless each Underwriter, the directors, officers, employees and agents of
each Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the Units
as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Teekay Parties will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Teekay Parties by or
on behalf of any Underwriter specifically for inclusion therein. This
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indemnity agreement will be in addition to any liability which the Teekay
Parties may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Teekay Parties, each of their respective directors, each of
their respective officers who signs the Registration Statement, and each person
who controls the Teekay Parties within the meaning of either the Act or the
Exchange Act, to the same extent as the indemnity in Section 8(a) from the
Teekay Parties to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Teekay Parties by or
on behalf of such Underwriter specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Teekay
Parties acknowledge that (i) the statements set forth in the last paragraph of
the cover page regarding delivery of the Units and, under the heading
"Underwriting," (ii) the list of Underwriters and their respective participation
in the sale of the Units, (iii) the sentences related to concessions and
reallowances, and (iv) the paragraphs related to stabilization, syndicate
covering transactions, penalty bids and electronic online distributions
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ one
separate counsel (in addition to local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties (which consent shall not be
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unreasonably withheld, conditioned or delayed), settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Teekay Parties, severally and jointly, and
the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "LOSSES") to
which one or more of the Teekay Parties and one or more of the Underwriters may
be subject in such proportion as is appropriate to reflect the relative benefits
received by the Teekay Parties on the one hand and by the Underwriters on the
other from the Offering; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Units) be responsible for any amount in excess
of the underwriting discount or commission applicable to the Units purchased by
such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Teekay Parties and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Teekay Parties on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Teekay Parties shall be deemed to be equal to the total net proceeds from the
Offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Teekay Parties on the one hand or the Underwriters on the other, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Teekay Parties and
the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
any of the Teekay Parties within the meaning of either the Act or the Exchange
Act, each officer of the Teekay Parties who shall have signed the Registration
Statement and each director of the Teekay Parties shall have the same rights to
contribution as the Teekay Parties, subject in each case to the applicable terms
and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Units agreed to be purchased by such
Underwriter or
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Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Firm Units set forth opposite
their names on Schedule I hereto bears to the aggregate amount of Firm Units set
forth opposite the names of all the remaining Underwriters) the Units which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Units which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Units set forth on Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Units, and if such nondefaulting
Underwriters do not purchase all the Units, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Teekay Parties. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Teekay Parties and
any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Partnership
prior to delivery of and payment for the Units, if at any time prior to such
time (i) trading in the Partnership's Common Units shall have been suspended by
the Commission or the NYSE, (ii) trading in securities generally on the NYSE
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (iii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Underwriters, impractical or inadvisable to proceed with the offering or
delivery of the Units as contemplated by the Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Teekay Parties or their officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Teekay Parties
or any of the officers, directors, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Units. The provisions of Sections 7, 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Partnership, will be mailed, delivered or
telefaxed to Teekay LNG Partners L.P., TK House, Bayside Executive Park, West
Bay Street and Xxxxx Xxxx, X.X. Xxx XX-00000, Xxxxxx, Xxxxxxxxxxxx of the
Bahamas, Attn. Corporate
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Secretary (fax no. 000-000-0000) with a copy to Xxxxxxx Coie LLP, 0000 X.X.
Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxx 00000-0000, Attn: Xxxxx Xxxxxxxx (fax
no. 000-000-0000).
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Judicial Proceedings.
(a) The Teekay Parties irrevocably (i) agree that any legal suit,
action or proceeding against the Teekay Parties arising out of or based upon
this Agreement, the transactions contemplated hereby or alleged violations of
the securities laws of the United States or any state in the United States may
be instituted in any New York court, (ii) waive, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding in any New York court and (iii) submits
to the exclusive jurisdiction of such courts in any such suit, action or
proceeding. Each of the Teekay Parties has appointed Xxxxxx, Xxxxxx & Xxxxxxxx,
New York, New York, as its authorized agent (the "AUTHORIZED AGENT"), upon whom
process may be served in any such action arising out of or based on this
Agreement, the transactions contemplated hereby or any alleged violation of the
securities laws of the United States or any state in the United States which may
be instituted in any New York court, expressly consents to the jurisdiction of
any such court in respect of any such action, and waives any other requirements
of or objections to personal jurisdiction with respect thereto. Such appointment
shall be irrevocable. The Teekay Parties represent and warrant that the
Authorized Agent has agreed to act as such agent for service of process and
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Teekay Parties shall be deemed, in every
respect, effective service of process upon the Teekay Parties.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Underwriters could purchase United
States dollars with such other currency in the City of New York on the business
day proceeding that on which final judgment is given. The obligations of the
Teekay Parties in respect of any sum due from it to the Underwriters shall,
notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day, following receipt by the
Underwriters of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) the Underwriters may in accordance with normal
banking procedures purchase United States dollars with such other currency; if
the United States dollars so purchased are less than the sum originally due to
the Underwriters hereunder, the Teekay Parties agree, as a separate obligation
and notwithstanding any such judgment, that the party
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responsible for such judgment shall indemnify the Underwriters against such
loss. If the United States dollars so purchased are greater than the sum
originally due to the Underwriters hereunder, the Underwriters agree to pay to
the Teekay Parties an amount equal to the excess of the dollars so purchased
over the sum originally due to the Underwriters hereunder.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
18. No Fiduciary Duty. The Partnership hereby acknowledges that (a)
the Underwriters are acting as principal and not as an agent or fiduciary of the
Partnership and (b) its engagement of the Underwriters in connection with the
Offering is as independent contractors and not in any other capacity.
Furthermore, the Partnership agrees that it is solely responsible for making its
own judgments in connection with the Offering (irrespective of whether the
Underwriters have advised or are currently advising the Partnership on related
or other matters).
19. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Credit Agreement" shall mean the Revolving Credit Facility dated
February 22, 2001 among Naviera Teekay Gas, S.L. ("Gas I") as Borrower, the
Banks party thereto, X.X. Xxxxxx Europe Limited, as Agent, X.X. Xxxxxx Bank
S.A., as Spanish Security Agent, and X.X. Xxxxxx plc and X.X. Xxxxxx Bank
S.A., as Arranger, as amended.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
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"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus relating to the Units that is
first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Units included in the Registration Statement at
the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in Section 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Units and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
-40-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Teekay Parties and the Underwriters.
Very truly yours,
TEEKAY LNG PARTNERS L.P.
By: Teekay GP L.L.C., its general partner
By:________________________________________________
Xxxxx Xxxxxxx
Chief Executive Officer and Chief
Financial Officer
TEEKAY GP L.L.C.
By:________________________________________________
Xxxxx Xxxxxxx
Chief Executive Officer and Chief
Financial Officer
TEEKAY LNG OPERATING L.L.C.
By: Teekay Shipping Corporation, its sole member
By:________________________________________________
Xxxxx Xxxxxxx
Chief Financial Officer, Senior Vice
President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
Citigroup Global Markets Inc.
[co-managers to come]
By: CITIGROUP GLOBAL MARKETS INC.
By:
Title:__________________________________
SCHEDULE A
TEEKAY LNG PARTNERS L.P.
LIST OF VESSELS REGISTERED UNDER THE LAW OF THE REPUBLIC OF THE
XXXXXXXX ISLANDS
[TO COME]
SCHEDULE I
TEEKAY LNG PARTNERS L.P.
Number of Firm
Underwriter Units to be Purchased
----------- ---------------------
Citigroup Global Markets Inc.
[co-managers to come]
TOTAL: 4,000,000
SCHEDULE II
TEEKAY LNG PARTNERS L.P.
LIST OF OPERATING SUBSIDIARIES
Teekay Spain, S.L.
Teekay Shipping Spain, S.L. (formerly Naviera X. Xxxxxx, S.A.)
Naviera Teekay Gas, S.L. (formerly Naviera X. Xxxxxx Gas, S.A.)
Naviera Teekay Gas II, S.L. (formerly Naviera X. Xxxxxx Gas II, S.A.)
Naviera Teekay Gas III, S.L. (formerly Naviera X. Xxxxxx Gas III, S.A.)
Naviera Teekay Gas IV, S.L. (formerly Naviera X. Xxxxxx Gas IV, S.A.)
Teekay Servicios Maritimos, S.L. (formerly Naviera X. Xxxxxx Servicios
Maritimos, S.A.)
Teekay II Iberia S.L.
SCHEDULE III
TEEKAY LNG PARTNERS L.P.
LIST OF XXXXXXXX ISLANDS SUBSIDIARIES
[TO COME]
SCHEDULE IV
TEEKAY LNG PARTNERS L.P.
LIST OF SPANISH SUBSIDIARIES
[TO COME]
EXHIBIT A
[FORM OF LOCK-UP AGREEMENT]
TEEKAY LNG PARTNERS L.P.
PUBLIC OFFERING OF COMMON UNITS
November ___, 2005
Citigroup Global Markets Inc.
[Co-Managers to come]
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "UNDERWRITING AGREEMENT"), among Teekay LNG Partners
L.P., a Xxxxxxxx Islands limited partnership (the "PARTNERSHIP"), Teekay GP
L.L.C., a Xxxxxxxx Islands limited liability company, and Teekay LNG Operating
L.L.C., a Xxxxxxxx Islands limited liability company, and each of you as
Underwriters named therein, relating to an underwritten public offering of
common units representing limited partner interests in the Partnership ("COMMON
UNITS").
In order to induce you to enter into the Underwriting Agreement, the
undersigned will not, without the prior written consent of Citigroup Global
Markets Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the undersigned or
any affiliate of the undersigned or any person in privity with the undersigned
or any affiliate of the undersigned), directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the
Securities and Exchange Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder with respect to, any Common Units or any securities
convertible into, or exercisable or exchangeable for such Common Units, or
publicly announce an intention to effect any such transaction, during the period
commencing on the date hereof and ending 90 days after the date of the
Underwriting Agreement (the "RESTRICTED PERIOD"), other than dispositions of
Common Units by gift to the undersigned's immediate family members, to trusts
established for the benefit of the undersigned's immediate family members or to
charitable organizations (provided that any such person, trust or charitable
organization agrees as a condition to receiving such gift to be bound by the
terms of the foregoing terms of this sentence). If (1) during the last 17 days
of the Restricted Period any of the Teekay Entities issues an earnings release
or announces material news or the occurrence of a material event relating to any
of the Teekay Entities or (2) prior to the expiration of the Restricted Period
any of the Teekay Entities announces that it will release earnings results
during the 16 day period beginning on the last day of the Restricted Period,
then the foregoing
restrictions shall continue to apply until the expiration of the 18 day period
beginning on the issuance of the earnings release or the announcement of the
material news or material event.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Notwithstanding the foregoing, the restrictions herein shall not apply
to transactions relating to Common Units acquired in open market transactions
after the completion of the public offering, provided that with respect to any
proposed subsequent sales of Common Units acquired in such open market
transactions, it shall be a condition to such proposed subsequent sales that no
filing by any party under the Securities Exchange Act of 1934 shall be required
or shall be voluntarily made in connection with such sales.
Very truly yours,
Name:
