EXHIBIT 10.4
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OMNIBUS AGREEMENT
AMONG
TEEKAY SHIPPING CORPORATION
TEEKAY GP L.L.C.
TEEKAY LNG OPERATING L.L.C.
AND
TEEKAY LNG PARTNERS L.P.
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OMNIBUS AGREEMENT
THIS OMNIBUS AGREEMENT is entered into on, and effective as of, the
Closing Date (as defined herein), among Teekay Shipping Corporation, a Xxxxxxxx
Islands corporation ("Teekay"), Teekay GP L.L.C., a Xxxxxxxx Islands limited
liability company (including any permitted successors and assigns under the MLP
Agreement (as defined herein), the "General Partner"), for itself and on behalf
of the MLP in its capacity as general partner, Teekay LNG Operating L.L.C., a
Xxxxxxxx Islands limited liability company (the "OLLC"), and Teekay LNG Partners
L.P., a Xxxxxxxx Islands limited partnership (the "MLP").
R E C I T A L S:
1. The Parties desire by their execution of this Agreement to evidence
their understanding with respect to (a) those business opportunities that the
Teekay Entities (as defined herein) will not pursue during the term of this
Agreement and (b) the procedures whereby such business opportunities are to be
offered to the Partnership Group (as defined herein) and accepted or declined.
2. The Parties desire by their execution of this Agreement to evidence
their understanding with respect to (a) those business opportunities that the
Partnership Group will not pursue during the term of this Agreement and (b) the
procedures whereby such business opportunities are to be offered to Teekay and
accepted or declined.
3. The Parties desire by their execution of this Agreement to evidence
their understanding, as more fully set forth in Article V, with respect to (a)
Teekay's right of first offer relating to certain Crude Oil Assets (as defined
herein) and (b) the MLP's right of first offer relating to certain LNG Assets
(as defined herein).
4. The Parties desire by their execution of this Agreement to evidence
their understanding, as more fully set forth in Article VI, with respect to
certain indemnification obligations of Teekay.
In consideration of the premises and the covenants, conditions, and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
As used in this Agreement, the following terms shall have the respective
meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with, the Person in question. As used
herein, the term "control" means the possession, direct or
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indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by
contract or otherwise.
"Agreement" means this Omnibus Agreement, as it may be amended, modified,
or supplemented from time to time in accordance with Section 7.6 hereof.
"Acquiring Party" has the meaning given such term in Section 4.1(a).
"Break-up Costs" means the aggregate amount of any and all additional
taxes and other similar costs to (a) the Teekay Entities that would be required
to transfer LNG Assets to a Partnership Group Member pursuant to Section 2.2(a),
separately from the assets acquired by the Teekay Entities in a larger
transaction, or (b) the Partnership Group that would be required to transfer
Crude Oil Assets to a Teekay Entity pursuant to Section 3.2(b), separately from
the assets acquired by the Partnership Group in a larger transaction.
"Change of Control" means, with respect to any Person (the "Applicable
Person"), any of the following events: (a) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all or
substantially all of the Applicable Person's assets to any other Person, unless
immediately following such sale, lease, exchange or other transfer such assets
are owned, directly or indirectly, by the Applicable Person; (b) the
consolidation or merger of the Applicable Person with or into another Person
pursuant to a transaction in which the outstanding Voting Securities of the
Applicable Person are changed into or exchanged for cash, securities or other
property, other than any such transaction where (i) the outstanding Voting
Securities of the Applicable Person are changed into or exchanged for Voting
Securities of the surviving Person or its parent and (ii) the holders of the
Voting Securities of the Applicable Person immediately prior to such transaction
own, directly or indirectly, not less than a majority of the outstanding Voting
Securities of the surviving Person or its parent immediately after such
transaction; and (c) a "person" or "group" (within the meaning of Sections 13(d)
or 14(d)(2) of the Exchange Act) other than Teekay, with respect to the General
Partner, being or becoming the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act) of more than 50% of all of the then outstanding
Voting Securities of the Applicable Person, except in a merger or consolidation
which would not constitute a Change of Control under clause (b) above.
"Closing Date" means the date of the closing of the initial public
offering of common units representing limited partner interests in the MLP.
"Conflicts Committee" means the Conflicts Committee of the Board of
Directors of the General Partner.
"Contribution Agreement" means that certain Contribution, Conveyance and
Assumption Agreement, dated as of the Closing Date, among Teekay, the General
Partner, the MLP, the OLLC and Teekay Shipping Spain, S.L., together with the
additional conveyance documents and instruments contemplated or referenced
thereunder.
"Contribution Assets" has the meaning given such term in Section 6.1.
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"control" means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
"Covered Environmental Losses" means all environmental and toxic tort
Losses suffered or incurred by the Partnership Group by reason of or arising out
of:
(i) any violation or correction of violation of Environmental Laws; or
(ii) any event or condition associated with ownership or operation by the
Teekay Entities of the Contribution Assets (including, without limitation, the
presence of Hazardous Substances on, under, about or migrating to or from the
Contribution Assets or the disposal or release of Hazardous Substances generated
by operation of the Contribution Assets), including, without limitation, (A) the
cost and expense of any investigation, assessment, evaluation, monitoring,
containment, cleanup, repair, restoration, remediation or other corrective
action required or necessary under Environmental Laws and (B) the cost and
expense for any environmental or toxic tort pre-trial, trial or appellate legal
or litigation support work;
but only to the extent that such violation complained of under clause (i), or
such events or conditions included in clause (ii), occurred before the Closing
Date and were unknown by the MLP and its management at the time of the Closing
Date; and, provided that, in no event shall Losses to the extent arising from a
change in any Environmental Law after the Closing Date be deemed "Covered
Environmental Losses."
"Crude Oil Assets" means crude oil tankers.
"Crude Oil Restricted Business" has the meaning given such term in Section
3.1.
"Environmental Laws" means all federal, state, foreign and local laws,
statutes, rules, regulations, orders, judgments and ordinances relating to
protection of health and safety and the environment, including, without
limitation, the United States federal Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and Recovery Act, the
Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, the Toxic
Substances Control Act, the Oil Pollution Act of 1990, the Hazardous Materials
Transportation Act, the Marine Mammal Protection Act, the Endangered Species
Act, the National Environmental Policy Act, and other environmental conservation
and protection laws, each as amended through the Closing Date.
"Event of Loss" means any of the following events: (a) the actual or
constructive total loss of a Suezmax Asset or the agreed or compromised total
loss of a Suezmax Asset; (b) the destruction of a Suezmax Asset; (c) the damage
to a Suezmax Asset to an extent, determined in good faith by the General Partner
within 90 days after the occurrence of such damage, as shall make repair thereof
uneconomical or shall render such Suezmax Asset permanently unfit for normal use
(other than obsolescence); or (d) the condemnation, confiscation, requisition,
seizure, forfeiture other taking of title to or use of a Suezmax Asset that
shall not be revoked within six
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months. An Event of Loss shall be deemed to have occurred: (i) in the event of
the destruction or other actual total loss of a Suezmax Asset, on the date of
such loss; (ii) in the event of a constructive, agreed or compromised total loss
of a Suezmax Asset, on the date of determination of such total loss pursuant to
the relevant insurance policy; (iii) in the case of any event referred to in
clause (c) above, upon such determination by the General Partner; or (iv) in the
case of any event referred in clause (d) above, on the date six months after the
occurrence of such event.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Bid LNG Assets" has the meaning given such term in Section
2.2(b).
"First Offer Negotiation Period" has the meaning given such term in
Section 5.2.
"Fully-Built-Up Cost"" means, with respect to an LNG Asset to be acquired
or leased (pursuant to a capitalized lease obligation) by a Partnership Group
Member, the aggregate amount of all expenditures incurred (or to be incurred
prior to delivery to the Partnership Group Member) to acquire or construct and
bring such LNG Asset to the condition and location necessary for its intended
use by the Partnership Group Member.
"General Partner" is defined in the introduction to this Agreement.
"Hazardous Substances" means (a) substances which contain substances
defined in or regulated under applicable Environmental Laws; (b) petroleum and
petroleum products, including crude oil and any fractions thereof; (c) natural
gas, synthetic gas and any mixtures thereof; (d) any substances with respect to
which a federal, state, foreign or local agency requires environmental
investigation, monitoring, reporting or remediation; (e) any hazardous waste or
solid waste, within the meaning of any Environmental Law; (f) any solid,
hazardous, dangerous or toxic chemical, material, waste or substance, within the
meaning of and regulated by any Environmental Law; (g) any radioactive material;
and (h) any asbestos-containing materials that represent a health hazard.
"LNG" means liquefied natural gas.
"LNG Assets" means LNG carriers.
"LNG Restricted Business" has the meaning given such term in Section 2.1.
"Losses" means losses, damages, liabilities, claims, demands, causes of
action, judgments, settlements, fines, penalties, costs and expenses (including,
without limitation, court costs and reasonable attorneys' and experts' fees) of
any and every kind or character; provided, however, that such term shall not
include any special, indirect, incidental or consequential damages.
"MLP" is defined in the introduction to this Agreement.
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"MLP Agreement" means the First Amended and Restated Agreement of Limited
Partnership of the MLP, dated as of the Closing Date, as such agreement is in
effect on the Closing Date, to which reference is hereby made for all purposes
of this Agreement. No amendment or modification to the MLP Agreement subsequent
to the Closing Date shall be given effect for purposes of this Agreement unless
consented to by each of the Parties to this Agreement.
"Offer" has the meaning given such term in Section 4.1.
"Offered Assets" has the meaning given such term in Section 4.1.
"Offeree" has the meaning given such term in Section 4.1.
"Offer Period" has the meaning given such term in Section 4.1.
"OLLC" is defined in the introduction to this Agreement.
"Parties" means the parties to this Agreement and their successors and
permitted assigns.
"Partnership Entities" means the General Partner, the MLP, the OLLC and
any Person controlled by any such entity.
"Partnership Group" means the MLP, the OLLC and any Person controlled by
any such entity.
"Partnership Group Member" means any Person in the Partnership Group.
"Person" means an individual, corporation, partnership, joint venture,
trust, limited liability company, unincorporated organization or any other
entity.
"Potential Transferee" has the meaning given such term in Section 5.2.
"Re-Charter" means the chartering of an LNG Asset or a Crude Oil Asset
pursuant to a time charter contract with a term of at least three (3) years in
the event that its existing charter expires or is terminated early (including,
without limitation, the chartering of any Replacement Suezmax Asset but only if
the charter party for the Replacement Suezmax Asset is not the same charter
party (or an Affiliate of such charter party) as for the replaced Suezmax
Asset).
"Replacement Suezmax Assets" means any Suezmax tankers that replace any
Suezmax Assets upon (a) an Event of Loss or (b) the replacement of a
time-charter arrangement existing as of the date of this Agreement where the
original Suezmax Asset which was subject to such time charter has been sold or
transferred due to the exercise by the charter party of its right under the time
charter to cause such sale or transfer.
"Restricted Business" means, as applicable, the LNG Restricted Business or
the Crude Oil Restricted Business.
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"Sale Assets" has the meaning given such term in Section 5.2.
"Suezmax Assets" means the Suezmax tankers included in the Contribution
Assets and any Replacement Suezmax Assets relating to such original Suezmax
tankers.
"Teekay Entities" means Teekay and any Person controlled, directly or
indirectly, by Teekay other than the Partnership Entities.
"Transfer" means any transfer, assignment, sale or other disposition of
any LNG Assets by a Teekay Entity or of any Crude Oil Assets by a Partnership
Group Member; provided, however, that such term shall not include: (a)
transfers, assignments, sales or other dispositions from a Teekay Entity to
another Teekay Entity or from a Partnership Group Member to another Partnership
Group Member; (b) transfers, assignments, sales or other dispositions pursuant
to the terms of any related charter or other agreement with a charter party; (c)
transfer, assigns, sales or other dispositions pursuant to Article II or III of
this Agreement; or (d) grants of security interests in or mortgages or liens on
such LNG Assets or Crude Oil Assets in favor of a bona fide third-party lender
(but not the foreclosing of any such security interest, mortgage or lien).
"Transfer Notice" has the meaning given such term in Section 5.2.
"Transferring Party" has the meaning given such term in Section 5.2.
"Voting Securities" means securities of any class of Person entitling the
holders thereof to vote in the election of members of the board of directors or
other similar governing body of the Person.
ARTICLE II
LNG RESTRICTED BUSINESS OPPORTUNITIES
2.1 LNG RESTRICTED BUSINESSES. Subject to Section 7.4 and except as
permitted by Section 2.2, each of the Teekay Entities shall be prohibited from
engaging in or acquiring or investing in any business (each an "LNG Restricted
Business") that owns, operates or charters LNG Assets.
2.2 PERMITTED EXCEPTIONS. Notwithstanding any provision of Section 2.1
to the contrary, the Teekay Entities may engage in the following activities
under any of the following circumstances:
(a) the ownership and/or operation of any LNG Assets that they acquire
after the date of this Agreement if:
(i) such LNG Assets are acquired in a transaction in which the fair
market value of such LNG Assets represents less than a majority of the
fair market value (as determined in good faith by the board of directors
of Teekay) of the total assets or business acquired; and
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(ii) the Teekay Entity has offered the General Partner the
opportunity for any of the Partnership Group Members to purchase such LNG
Assets in accordance with the procedures set forth in Section 4.1 and the
General Partner, with the approval of the Conflicts Committee, has elected
not to cause any Partnership Group Member to purchase such LNG Subject
Assets;
(b) the ownership and/or operation of LNG Assets that (i) are subject
to an offer by a Teekay Entity as described in Section 2.2(a) or (ii) subject to
Section 4.1, relate to a tender, bid or award for a proposed LNG project that a
Teekay Entity has submitted or received prior to the Closing Date (such LNG
Assets in clause (ii) being referred to herein as "Existing Bid LNG Assets"), in
each case pending the applicable offer of such LNG Assets to the General Partner
and the General Partner's determination pursuant to Section 4.1 whether to
purchase the LNG Assets and, if the General Partner's Conflicts Committee
determines to cause a Partnership Group Member to purchase such LNG Assets,
pending the closing of such purchase;
(c) the provision by Teekay Entities of ship management services
relating to an LNG Restricted Business;
(d) the acquisition of up to a 9.9% equity ownership, voting or profit
participation interest in any publicly traded Person that engages in an LNG
Restricted Business;
(e) the ownership and/or operation by a Teekay Entity of any LNG Assets
with respect to which the General Partner has advised Teekay that the General
Partner has elected, with the approval of the Conflicts Committee, not to cause
a Partnership Group Member to acquire (or seek to acquire) ; or
(f) the ownership and/or operation by Teekay Entities of the three LNG
carriers subject to the Stock Purchase Agreement dated as of ___________, 2005,
between Teekay and the MLP if the MLP fails to perform its obligations to
purchase (or to cause other Partnership Group Members to purchase) such LNG
carriers under such agreement.
ARTICLE III
CRUDE OIL RESTRICTED BUSINESS OPPORTUNITIES
3.1 CRUDE OIL RESTRICTED BUSINESSES. Subject to Section 7.4 and except
as permitted by Section 3.2, each Partnership Group Member shall be prohibited
from engaging in or acquiring or investing in any business (each a "Crude Oil
Restricted Business") that owns, operates or charters Crude Oil Assets.
3.2 PERMITTED EXCEPTIONS. Notwithstanding any provision of Section 3.1
to the contrary, the Partnership Group Members may engage in the following
activities under any of the following circumstances:
(a) the ownership and/or operation of any of the Suezmax Assets,
including any Replacement Suezmax Assets;
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(b) the ownership and/or operation of any Crude Oil Assets that it
acquires after the date of this Agreement if:
(i) such Crude Oil Assets are acquired in a transaction in which the
fair market value of such Crude Oil Assets represents less than a majority
of the fair market value (as determined in good faith by the General
Partner's Conflicts Committee) of the total assets or business acquired;
and
(ii) the Partnership Group Member has offered Teekay the opportunity
for Teekay or any other Teekay Entity to purchase such Crude Oil Assets in
accordance with the procedures set forth in Section 4.1 and Teekay has
elected not to purchase and not to cause another Teekay Entity to purchase
such Crude Oil Assets;
(c) the ownership and/or operation of Crude Oil Assets that are subject
to an offer by a Partnership Group Member as described in Section 3.2(b) pending
Teekay's determination whether to purchase the Crude Oil Assets and, if Teekay
determines to cause a Teekay Entity to purchase such Crude Oil Assets , pending
the closing of such purchase;
(d) the acquisition of up to a 9.9% equity ownership, voting or profit
participation interest in any publicly traded Person that engages in a Crude Oil
Restricted Business; or
(e) the ownership and/or operation by a Partnership Group Member of any
Crude Oil Assets with respect to which Teekay has previously advised the General
Partner that Teekay has elected not to cause a Teekay Entity to acquire (or seek
to acquire).
ARTICLE IV
BUSINESS OPPORTUNITIES PROCEDURES
4.1 PROCEDURES. In the event that (a) a Partnership Group Member
acquires Crude Oil Assets as part of a larger transaction in accordance with
Section 3.2(b), (b) a Teekay Entity acquires LNG Assets as part of a larger
transaction in accordance with Section 2.2(a), or (c) a Teekay Entity is awarded
a contract for the transportation requirements for all or any portion of any
proposed LNG project for which a Teekay Entity has tendered or submitted a bid
prior to the Closing Date, then (i) not later than 30 days after the
consummation of the acquisition (in the case of clause (a) or (b) above) or (ii)
not later than 180 days before the scheduled delivery date of the relevant
Existing Bid LNG Asset (in the case of clause (c) above), such acquiring Party
(the "Acquiring Party") shall notify (A) Teekay, in the case of an acquisition
by a Partnership Group Member of Crude Oil Assets or (B) the General Partner, in
the case of an acquisition by a Teekay Entity of LNG Assets or proposed
acquisition of Existing Bid LNG Assets of such acquisition (or proposed
acquisition) and offer such party to be notified (each an "Offeree") the
opportunity for the Offeree (or, in the case of Teekay or the General Partner,
any other Teekay Entity or Partnership Group Member, as applicable) to purchase
such Crude Oil Assets, LNG Assets or Existing Bid LNG Assets, as applicable (the
"Offered Assets"), for (I) their fair market value (plus any Break-up Costs), in
the case of clause (a) or (b) above) or (II) their Fully-Built-Up Cost, in the
case of clause (c) above, in each case on commercially reasonable terms in
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accordance with this Section (the "Offer"). The Offer shall set forth the
Acquiring Party's proposed terms relating to the purchase of the Offered Assets
by the Offeree (or, in the case of Teekay or the General Partner, any other
Teekay Entity or Partnership Group Member, as applicable), including any
liabilities to be assumed by a Partnership Group Member as part of the Offer,
the amount of which liabilities shall be credited against the applicable
Fully-Built-Up Cost. The Acquiring Party will deliver to the Offeree all
information prepared by or on behalf of or in the possession of such Acquiring
Party relating to the Offered Assets and reasonably requested by the Offeree. As
soon as practicable, but in any event, within 90 days after receipt of such
notification, the Offeree shall notify the Acquiring Party in writing that
either:
(a) the Offeree has elected not to purchase (or not to cause any of its
permitted Affiliates to purchase) such Offered Assets, in which event the
Acquiring Party and its Affiliates shall, subject to the other terms of this
Agreement, be forever free to continue to own and operate such Offered Assets;
or
(b) the Offeree has elected to purchase (or to cause any of its
permitted Affiliates to purchase) such Offered Assets, in which event the
following procedures shall be followed:
(i) After the receipt of the Offer by the Offeree, the Acquiring
Party and the Offeree shall negotiate in good faith, the fair market value
(and any Break-up Costs) or the Fully-Built-Up Cost, as applicable, of the
Offered Assets that are subject to the Offer and the other terms of the
Offer on which the Offered Assets will be sold to the Offeree, which terms
may include, in the discretion of the Offeree, the payment of a "success
fee" or "incentive fee" to be paid pursuant to Section 7.14. If the
Acquiring Party and the Offeree agree on the fair market value (and any
Break-up Costs) or the Fully-Built-Up Cost, as applicable, of the Offered
Assets that are subject to the Offer and the other terms of the Offer
during the 30-day period (the "Offer Period") after receipt by the
Acquiring Party of the Offeree's election to purchase (or cause any
permitted Affiliate of the Offeree to purchase) the Offered Assets, the
Offeree shall purchase (or cause any of its permitted Affiliates to
purchase) the Offered Assets on such terms as soon as commercially
practicable after such agreement has been reached.
(ii) If the Acquiring Party and the Offeree are unable to agree on
the fair market value (and any Break-up Costs) or the Fully-Built-Up Cost,
as applicable, of the Offered Assets that are subject to the Offer or the
other terms of the Offer during the Offer Period, the Acquiring Party and
the Offeree will engage an independent ship broker and/or an independent
investment banking firm prior to the end of the Offer Period to determine
the fair market value (and any Break-up Costs) or the Fully-Built-Up Cost,
as applicable, of the Offered Assets and/or the other terms on which the
Acquiring Party and the Offeree are unable to agree. In determining the
fair market value or the Fully-Built-Up Cost of the Offered Assets and
other terms on which the Offered Assets are to be sold, the ship broker or
investment banking firm, as applicable, will have access to the proposed
sale and purchase values and terms for the Offer submitted by the
Acquiring Party and the Offeree, respectively. Such ship broker or
investment banking
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firm will determine the fair market value (and any Break-up Costs) or
Fully-Built-Up Cost of the Offered Assets and/or the other terms on which
the Acquiring Party and the Offeree are unable to agree within 30 days of
its engagement and furnish the Acquiring Party and the Offeree its
determination. The fees and expenses of the ship broker or investment
banking firm, as applicable, will be divided equally between the Acquiring
Party and the Offeree. Upon receipt of such determination, the Offeree
will have the option, but not the obligation, to:
(A) to purchase the Offered Assets for the fair market value
or Fully-Built-Up Cost, as applicable, and on the other terms
determined by the investment banking firm, as soon as commercially
practicable after determinations have been made; or
(B) elect not to purchase such Offered Assets, in which event
the Acquiring Party and its Affiliates shall, subject to the other
terms of this Agreement, be forever free to continue to own and
operate such Offered Assets.
4.2 SCOPE OF PROHIBITION. If any Party or its Affiliates engages in the
ownership or operation of a Restricted Business pursuant to any of the
exceptions described in Section 2.2 or 3.2, as applicable, the Party and its
Affiliates may not subsequently expand that portion of their business other than
pursuant to the exceptions contained in such Section 2.2 or 3.2. Except as
otherwise provided in this Agreement and the MLP Agreement, each Party and its
Affiliates shall be free to engage in any business activity whatsoever,
including those that may be in direct competition with the Teekay Entities or
the Partnership Group.
4.3 ENFORCEMENT. Each Party agrees and acknowledges that the other
Parties do not have an adequate remedy at law for the breach by any such Party
of its covenants and agreements set forth in this Article IV, and that any
breach by any such Party of its covenants and agreements set forth in this
Article IV would result in irreparable injury to such other Parties. Each Party
further agrees and acknowledges that any other Party may, in addition to the
other remedies which may be available to such other Party, file a suit in equity
to enjoin such Party from such breach, and consent to the issuance of injunctive
relief to enforce the provisions of Article IV of this Agreement.
ARTICLE V
RIGHTS OF FIRST OFFER
5.1 RIGHTS OF FIRST OFFER.
(a) The Partnership Group hereby grants Teekay a right of first
offer on any proposed Transfer or Re-Charter by any Partnership Group Member of
any Crude Oil Assets owned or acquired by any Partnership Group Member. The
Teekay Entities hereby grant the MLP a right of first offer on any proposed
Transfer or Re-Charter of any LNG Assets owned or acquired by any Teekay Entity.
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(b) The Parties acknowledge that all potential Transfers or
Re-Charters of Crude Oil Assets or LNG Subject Assets pursuant to this Article V
are subject to obtaining any and all written consents of governmental
authorities and other non-affiliated third parties and to the terms of all
existing agreements in respect of such Crude Oil Assets or LNG Subject Assets,
as applicable.
5.2 PROCEDURES FOR RIGHTS OF FIRST OFFER. In the event that a
Partnership Group Member or a Teekay Entity (as applicable, the "Transferring
Party") proposes to Transfer or Re-Charter any Crude Oil Assets or LNG Subject
Assets, as applicable (the "Sale Assets"), prior to engaging in any negotiation
for such Transfer or Re-Charter with any non-affiliated third party or otherwise
offering to Transfer or Re-Charter the Sale Assets to any non-affiliated third
party, such Transferring Party shall give Teekay or the MLP, as applicable (the
"Potential Transferee"), written notice setting forth all material terms and
conditions (including, without limitation, the purchase price (in the event of a
Transfer) or the terms of the charter agreement (in the event of a Re-Charter)
and a description of the Sale Asset(s) on which such Transferring Party desires
to Transfer or Re-Charter the Sale Assets (the "Transfer Notice"). The material
terms set forth in the Transfer Notice shall have been approved, in any case
where a Partnership Group Member is the Transferring Party, by the Conflicts
Committee of the General Partner. The Transferring Party then shall be obligated
to negotiate in good faith for a 30-day period following the delivery by the
Transferring Party of the Transfer Notice (the "First Offer Negotiation Period")
to reach an agreement for the Transfer or Re-Charter of such Sale Assets to the
Potential Transferee or any of its Affiliates. If no such agreement with respect
to the Sale Assets is reached during the First Offer Negotiation Period, and the
Transferring Party has not Transferred or Re-Chartered, or agreed in writing to
Transfer or Re-Charter, such Sale Assets to a third party within 180 days after
the end of the First Offer Negotiation Period on terms generally no less
favorable to the Transferring Party than those include in the Transfer Notice,
then the Transferring Party shall not thereafter Transfer or Re-Charter any of
the Sale Assets without first offering such assets to the applicable Potential
Transferee in the manner provided above.
ARTICLE VI
INDEMNIFICATION
6.1 TEEKAY INDEMNIFICATION. Subject to the provisions of Section 6.2 and
Section 6.3, Teekay shall indemnify, defend and hold harmless the Partnership
Group from and against: (a) any Covered Environmental Losses relating to the
assets contributed by the Teekay Entities to the Partnership Group prior to or
on the Closing Date (the "Contribution Assets") to the extent that Teekay is
notified by the General Partner of any such Covered Environmental Losses within
three (3) years after the Closing Date; (b) Losses to the Partnership Group
arising from the failure of the Partnership Group, immediately after the Closing
Date, to be the owner of such valid leasehold interests or fee ownership
interests in and to the Contribution Assets as are necessary to enable the
Partnership Entities to own and operate the Contribution Assets in substantially
the same manner that the Contribution Assets were owned and operated by the
Teekay Entities immediately prior to the Closing Date, to the extent that Teekay
is notified by the General Partner of such Losses within one (1) year after the
Closing Date; (c) Losses to the Partnership Group arising from the failure of
the Partnership Entities to have on the Closing Date
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any consent or governmental permit necessary to allow the Partnership Entities
to own or operate the Contribution Assets in substantially the same manner that
the Contribution Assets were owned and operated by the Teekay Entities
immediately prior to the Closing Date, to the extent that Teekay is notified by
the General Partner of such Losses within one (1) year after the Closing Date;
and (d) all federal, state, foreign and local income tax liabilities
attributable to the operation of the Contribution Assets prior to the Closing
Date, including any such income tax liabilities of the Teekay Entities that may
result from the consummation of the formation transactions for the Partnership
Group and the General Partner, to the extent that Teekay is notified by the
General Partner of such liabilities prior to the date 60 days after the
expiration of any applicable statute of limitations, but excluding any federal,
state, foreign and local income taxes reserved on the books of the Partnership
Group on the Closing Date.
6.2 LIMITATION REGARDING INDEMNIFICATION.
(a) The aggregate liability of Teekay under Section 6.1(a) above
shall not exceed $10 million. Furthermore, no claim may be made against Teekay
for indemnification pursuant to Section 6.1(a) unless the aggregate dollar
amount of all claims for indemnification pursuant to such section shall exceed
$500,000, in which case Teekay shall be liable for claims for indemnification
only to the extent such aggregate amount exceeds $500,000.
(b) The aggregate liability of Teekay under Sections 6.1(b) and
6.1(c) above shall not exceed $5 million. Furthermore, no claim may be made
against Teekay for indemnification pursuant to Sections 6.1(b) or 6.1(c) unless
the aggregate dollar amount of all claims for indemnification pursuant to such
sections shall exceed $250,000, in which case Teekay shall be liable for claims
for indemnification only to the extent such aggregate amount exceeds $250,000.
6.3 INDEMNIFICATION PROCEDURES.
(a) The members of the Partnership Group agree that within a
reasonable period of time after they become aware of facts giving rise to a
claim for indemnification pursuant to Section 6.1, they will provide notice
thereof in writing to Teekay specifying the nature of and specific basis for
such claim.
(b) Teekay shall have the right to control all aspects of the
defense of (and any counterclaims with respect to) any claims brought against
the Partnership Group that are covered by the indemnification set forth in
Section 6.1, including, without limitation, the selection of counsel,
determination of whether to appeal any decision of any court and the settling of
any such matter or any issues relating thereto; provided, however, that no such
settlement shall be entered into without the consent (which consent shall not be
unreasonably withheld) of the Partnership Group unless it includes a full
release of the Partnership Group from such matter or issues, as the case may be.
(c) The members of the Partnership Group agree to cooperate fully
with Teekay with respect to all aspects of the defense of any claims covered by
the indemnification set forth in Section 6.1, including, without limitation, the
prompt furnishing to Teekay of any
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correspondence or other notice relating thereto that the Partnership Group may
receive, permitting the names of the members of the Partnership Group to be
utilized in connection with such defense, the making available to Teekay of any
files, records or other information of the Partnership Group that Teekay
considers relevant to such defense and the making available to Teekay of any
employees of the Partnership Group; provided, however, that in connection
therewith Teekay agrees to use reasonable efforts to minimize the impact thereof
on the operations of the Partnership Group and further agrees to maintain the
confidentiality of all files, records and other information furnished by a
member of the Partnership Group pursuant to this Section 6.3. In no event shall
the obligation of the Partnership Group to cooperate with Teekay as set forth in
the immediately preceding sentence be construed as imposing upon the Partnership
Group an obligation to hire and pay for counsel in connection with the defense
of any claims covered by the indemnification set forth in this Article VI;
provided, however, that the members of the Partnership Group may, at their own
option, cost and expense, hire and pay for counsel in connection with any such
defense. Teekay agrees to keep any such counsel hired by the Partnership Group
reasonably informed as to the status of any such defense, but Teekay shall have
the right to retain sole control over such defense.
(d) In determining the amount of any Loss for which any of the
members of the Partnership Group is entitled to indemnification under this
Agreement, (i) the gross amount of the indemnification will be reduced by (A)
any insurance proceeds realized by the Partnership Group, and such correlative
insurance benefit shall be net of any incremental insurance premium that becomes
due and payable by the Partnership Group as a result of such claim, and (B) all
amounts recovered by the Partnership Group under contractual indemnities from
third Persons and (ii) there shall be no grossing up of the amount of the Loss
to account for any tax on the indemnification proceeds. The Partnership hereby
agrees to use commercially reasonable efforts to realize any applicable
insurance proceeds or amounts recoverable under such contractual indemnities.
ARTICLE VII
MISCELLANEOUS
7.1 CHOICE OF LAW; SUBMISSION TO JURISDICTION. This Agreement shall be
subject to and governed by the laws of ________________, excluding any
conflicts-of-law rule or principle that might refer the construction or
interpretation of this Agreement to the laws of another jurisdiction. Each party
hereby submits to the jurisdiction of the _____________ courts located in
____________ and to venue ____ in __________.
7.2 NOTICE. All notices or requests or consents provided for or
permitted to be given pursuant to this Agreement must be in writing and must be
given by depositing same in the mail, addressed to the Person to be notified,
postpaid, and registered or certified with return receipt requested or by
delivering such notice in person or by private-courier, prepaid, or by
telecopier to such party. Notice given by personal delivery or mail shall be
effective upon actual receipt. Couriered notices shall be deemed delivered on
the date the courier represents that delivery will occur. Notice given by
telecopier shall be effective upon actual receipt if received during the
recipient's normal business hours, or at the beginning of the recipient's next
business day after
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OMNIBUS AGREEMENT
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receipt if not received during the recipient's normal business hours. All
notices to be sent to a party pursuant to this Agreement shall be sent to or
made at the address set forth below such party's signature to this Agreement, or
at such other address as such party may stipulate to the other parties in the
manner provided in this Section .
7.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties relating to the matters contained herein, superseding all prior
contracts or agreements, whether oral or written, relating to the matters
contained herein.
7.4 TERMINATION. The provisions of Articles II, III, IV and V of this
Agreement (but not less than all of such Articles) may be terminated by (a)
Teekay upon notice to the other Parties upon a Change of Control of Teekay and
(b) the General Partner upon notice to the other parties to this Agreement upon
a Change of Control of the General Partner.
7.5 WAIVER; EFFECT OF WAIVER OR CONSENT. Any party hereto may (a) extend
the time for the performance of any obligation or other act of any other party
hereto or (b) waive compliance with any agreement or condition contained herein.
Except as otherwise specifically provided herein, any such extension or waiver
shall be valid only if set forth in a written instrument duly executed by the
party or parties to be bound thereby; provided, however, that the MLP and the
OLLC may not, without the prior approval of the Conflicts Committee, agree to
any waiver of this Agreement that, in the reasonable discretion of the General
Partner, will adversely affect the holders of Common Units. No waiver or
consent, express or implied, by any party of or to any breach or default by any
Person in the performance by such Person of its obligations hereunder shall be
deemed or construed to be a waiver or consent of or to any other breach or
default in the performance by such Person of the same or any other obligations
of such Person hereunder. Failure on the part of a party to complain of any act
of any Person or to declare any Person in default, irrespective of how long such
failure continues, shall not constitute a waiver by such party of its rights
hereunder until the applicable statute of limitations period has run.
7.6 AMENDMENT OR MODIFICATION. This Agreement may be amended or modified
from time to time only by the written agreement of all the parties hereto;
provided, however, that the MLP and the OLLC may not, without the prior approval
of the Conflicts Committee, agree to any amendment or modification of this
Agreement that, in the reasonable discretion of the General Partner, will
adversely affect the holders of Common Units of the MLP.
7.7 ASSIGNMENT. No party shall have the right to assign its rights or
obligations under this Agreement without the consent of the other parties
hereto.
7.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all signatory parties had signed the
same document. All counterparts shall be construed together and shall constitute
one and the same instrument.
7.9 SEVERABILITY. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this
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Agreement and the application of such provision to other Persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
7.10 GENDER, PARTS, ARTICLES AND SECTIONS. Whenever the context requires,
the gender of all words used in this Agreement shall include the masculine,
feminine and neuter, and the number of all words shall include the singular and
plural. All references to Article numbers and Section numbers refer to Articles
and Sections of this Agreement.
7.11 FURTHER ASSURANCES. In connection with this Agreement and all
transactions contemplated by this Agreement, each signatory party hereto agrees
to execute and deliver such additional documents and instruments and to perform
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions and conditions of this Agreement and
all such transactions.
7.12 WITHHOLDING OR GRANTING OF CONSENT. Each party may, with respect to
any consent or approval that it is entitled to grant pursuant to this Agreement,
grant or withhold such consent or approval in its sole and uncontrolled
discretion, with or without cause, and subject to such conditions as it shall
deem appropriate.
7.13 LAWS AND REGULATIONS. Notwithstanding any provision of this
Agreement to the contrary, no party to this Agreement shall be required to take
any act, or fail to take any act, under this Agreement if the effect thereof
would be to cause such party to be in violation of any applicable law, statute,
rule or regulation.
7.14 INCENTIVE FEES. Nothing in this Agreement shall prohibit the MLP
from paying to Teekay or any other Teekay Entity certain incentive fees that are
approved by the Conflicts Committee, in its sole discretion, and which relate to
LNG projects provided to the MLP by Teekay or other Teekay Entities.
7.15 NEGOTIATION OF RIGHTS OF TEEKAY, LIMITED PARTNERS, ASSIGNEES, AND
THIRD PARTIES. The provisions of this Agreement are enforceable solely by the
parties to this Agreement, and no shareholder of Teekay and no limited partner,
member, assignee or other Person of the MLP or the OLLC shall have the right,
separate and apart from Teekay, the MLP or the OLLC, to enforce any provision of
this Agreement or to compel any party to this Agreement to comply with the terms
of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have executed this Agreement on, and
effective as of, the Closing Date.
TEEKAY SHIPPING CORPORATION
By: ________________________________________
Name:
Title:
Address for Notice:
[ ]
Phone: [ ]
Fax: [ ]
Attention: [ ]
TEEKAY GP L.L.C.
By: ________________________________________
Name:
Title:
Address for Notice:
[ ]
Phone: [ ]
Fax: [ ]
Attention: [ ]
TEEKAY LNG PARTNERS, L.P.
OMNIBUS AGREEMENT
SIGNATURE PAGE
TEEKAY LNG OPERATING L.L.C.
By: Teekay LNG Partners L.P.,
its sole member
By: Teekay GP L.L.C.,
its general partner
By: ____________________________________
Name:
Title:
Address for Notice:
[ ]
Phone: [ ]
Fax: [ ]
Attention: [ ]
TEEKAY LNG PARTNERS L.P.
By: Teekay GP L.L.C., its general partner
By: ___________________________________
Name:
Title:
Address for Notice:
[ ]
Phone: [ ]
Fax: [ ]
Attention: [ ]
TEEKAY LNG PARTNERS, L.P.
OMNIBUS AGREEMENT
SIGNATURE PAGE
