TEEKAY LNG PARTNERS L.P. 3,500,000 Common Units Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit 1.1
3,500,000 Common Units
Representing Limited Partner Interests
Representing Limited Partner Interests
November 17, 2009
UBS Securities LLC
Citigroup Global Markets Inc.
Citigroup Global Markets Inc.
As Representatives of the several Underwriters
named in Schedule I attached hereto,
named in Schedule I attached hereto,
c/o UBS Securities LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Teekay LNG Partners L.P., a limited partnership organized under the laws of the Xxxxxxxx
Islands (the “Partnership”), proposes to issue and sell (the “Offering”) to the underwriters (the
“Underwriters”) named in Schedule I attached to this agreement (the “Agreement”) 3,500,000
Common Units (the “Firm Units”), each representing a limited partner interest in the Partnership
(the “Common Units”). The Partnership also proposes to grant to you an option to purchase up to
525,000 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.”
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. The entities set forth on Schedule II are direct or indirect subsidiaries of
the Partnership and are referred to herein collectively 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 each Underwriter and agrees with
each Underwriter, that:
(a) Registration. A registration statement on Form F-3 (File No. 333-162579) with respect to
the Common Units being sold by the Partnership has (i) been prepared by the Partnership in
conformity with the requirements of the Securities Act of 1933, as amended (the “Act”), and the
rules and regulations (the “Rules and Regulations”) of the Securities and Exchange Commission (the
“Commission”) thereunder, (ii) been filed with the Commission under the Act and (iii) become
effective under the Act. The Partnership meets the requirements for use of Form F-3 under the Act.
The initial Effective Date of the Registration Statement was not earlier than three years before
the date of this Agreement. Copies of such registration statement and each of the amendments
thereto, if any, have been delivered by the Partnership to you. As used in this Agreement:
(i) “Applicable Time” means 8:45 a.m. (New York City time) on the date of this
Agreement, which the Representatives have informed the Partnership is a time prior to
the first sale of the Units;
(ii) “Effective Date” means any date as of which any part of such registration
statement relating to the Units became, or is deemed to have become, effective under the
Securities Act in accordance with the Rules and Regulations;
(iii) “Issuer Free Writing Prospectus” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Partnership or used or referred to by the Partnership in connection with the offering of
the Units;
(iv) “Preliminary Prospectus” means any preliminary prospectus relating to the
Units included in such registration statement or filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations, including any preliminary prospectus
supplement thereto relating to the Units;
(v) “Pricing Disclosure Package” means, as of the Applicable Time, the most recent
Preliminary Prospectus, together with (A) each Issuer Free Writing Prospectus listed on
Annex 1, and (B) the number of Units and the pricing information, which are set forth on
Annex 2 hereto and will be included on the cover page of the Prospectus;
(vi) “Prospectus” means the final prospectus supplement relating to the Units,
including the accompanying base prospectus, as filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations; and
(vii) “Registration Statement” means, collectively, the various parts of such
registration statement, each as amended as of the Effective Date for such part,
including the Prospectus, and all exhibits to such registration statement.
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Any reference to any Preliminary Prospectus or to the Prospectus shall be deemed to refer to and
include any information incorporated by reference therein pursuant to Item 6 of Form F-3 under the
Act, as of the date of such Preliminary Prospectus or the Prospectus, as the case may be. Any
reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest
Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) of
the Rules and Regulations prior to the date hereof. Any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
document filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after
the date of the Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by
reference in the Preliminary Prospectus or the Prospectus, as the case may be. Any reference to any
amendment to the Registration Statement shall be deemed to include any periodic report of the
Partnership filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after
the Effective Date that is incorporated by reference in the Registration Statement. The Commission
has not issued any order preventing or suspending the use of the any Preliminary Prospectus or the
Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or
examination for such purpose has been instituted or threatened by the Commission.
(b) Partnership Not an Ineligible Issuer. At (i) the time of initial filing of the
Registration Statement and (ii) the earliest time after the initial filing of the Registration
Statement that the Partnership or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Units, the Partnership was not an “ineligible
issuer,” as defined in Rule 405 under the Act.
(c) Form of Documents. The Registration Statement conformed and will conform in all material
respects on the Effective Date and each Closing Date, and any amendment to the Registration
Statement filed after the date hereof will conform in all material respects when filed, to the
requirements of the Act and the Rules and Regulations. The most recent Preliminary Prospectus
conformed, and the Prospectus will conform, in all material respects when filed with the Commission
pursuant to Rule 424(b) and on each Closing Date to the requirements of the Act and the Rules and
Regulations. The documents incorporated by reference in the Registration Statement, any
Preliminary Prospectus or the Prospectus conformed, and any further documents so incorporated will
conform, when filed with the Commission, in all material respects to the requirements of the
Exchange Act or the Act, as applicable, and the rules and regulations of the Commission thereunder.
(d) No Material Misstatements or Omissions in the Registration Statement. The Registration
Statement did not, as of the Effective Date, contain an 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; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement in reliance upon and in
conformity with written information furnished to the Partnership through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein, which information is specified in
Section 8(b).
(e) No Material Misstatements or Omissions in the Prospectus. The Prospectus will not, as of
its date and on the Closing Date, contain an untrue statement of a
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material fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted from the Prospectus in
reliance upon and in conformity with written information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(b).
(f) No Material Misstatements or Omissions in Documents Incorporated by Reference. The
documents incorporated by reference in any Preliminary Prospectus or the Prospectus did not, and
any further documents filed and incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(g) No Material Misstatements or Omissions in the Pricing Disclosure Package. The Pricing
Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the Pricing Disclosure Package in
reliance upon and in conformity with written information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(b).
(h) No Material Misstatements or Omissions in Issuer Free Writing Prospectuses. Each Issuer
Free Writing Prospectus (including, without limitation, any road show that is a free writing
prospectus under Rule 433), when considered together with the Pricing Disclosure Package as of the
Applicable Time, did not contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading. Each Issuer Free Writing Prospectus, as of its date, did not conflict
with the information contained in the Registration Statement, the Pricing Disclosure Package or the
Prospectus.
(i) Conformity of Issuer Free Writing Prospectuses to the Requirements of the Securities Act.
Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the
requirements of the Act and the Rules and Regulations on the date of first use, and the Partnership
has complied with any filing requirements applicable to such Issuer Free Writing Prospectus
pursuant to the Rules and Regulations. The Partnership has not made any offer relating to the
Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of
the Representatives. The Partnership has retained in accordance with the Rules and Regulations all
Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Rules and
Regulations.
(j) Formation and Qualification. Each of the Teekay Entities has been duly formed or
incorporated and is validly existing as a limited partnership, limited liability company or
corporation, as the case may be, in good standing under the laws of its respective jurisdiction of
formation or incorporation, and is 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
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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 Pricing Disclosure
Package (exclusive of any supplement thereto) and 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 Pricing Disclosure Package and the Prospectus.
(k) 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 has been duly authorized and validly issued in accordance with the
partnership agreement of the Partnership, as amended or restated on or prior to the date hereof
(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 Pricing Disclosure Package and the Prospectus, or under applicable
securities laws).
(l) Ownership of the Sponsor Units and Incentive Distribution Rights in the Partnership.
Teekay Holdings Limited, a Bermuda company (“Teekay Holdings”) directly owns immediately prior to
the Offering, 17,840,988 Common Units and 7,367,286 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”), in each case free and clear of all Liens (except
restrictions on transferability contained in the Partnership Agreement as described in the Pricing
Disclosure Package and the Prospectus, or under applicable securities laws).
(m) Valid Issuance of the Units. At each Closing Date, the Firm Units and the Option Units,
as the case may be, and the limited partner interests represented thereby will be duly authorized
by the Partnership Agreement and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly issued, fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as described in the Form 8-A/A
under the caption “Our Partnership Agreement—Limited Liability”).
(n) Ownership of the General Partner. Teekay Holdings directly owns a 100% membership
interest in the General Partner; such membership interest has been duly authorized and validly
issued in accordance with the limited liability company agreement of the General Partner, as
amended or restated on or prior to the date hereof (the “General Partner LLC Agreement”), and is
fully paid (to the extent required under the General Partner LLC
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Agreement) and nonassessable (except as such nonassessability may be affected by Section 51 of
the Xxxxxxxx Islands Limited Liability Company Act); and Teekay Holdings owns such membership
interest free and clear of all Liens.
(o) 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, as amended or
restated on or prior to the date hereof (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.
(p) Ownership of the Operating Subsidiaries. The Operating Company owns, directly or
indirectly, the equity interests in each of the Operating Subsidiaries set forth in Schedule
II; such equity interests owned by the Operating Company are duly authorized and validly issued
in accordance with the organizational documents of each Operating Subsidiary, as amended or
restated on or prior to the date hereof (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 Pricing
Disclosure Package and the Prospectus.
(q) 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 each 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, a 100% interest
in Teekay LNG Finance Corp., a Xxxxxxxx Islands corporation, a 100% interest in Teekay LNG
Holdings, L.P., a Xxxxxxxx Islands limited partnership, and a 100% interest in Teekay Tangguh
Holdco LLC, a Xxxxxxxx Islands limited liability company, and (ii) the Operating Company’s
ownership (directly or indirectly) of the equity interests in each of the Operating Subsidiaries as
set forth on Schedule II, neither the Partnership nor the Operating Company owns, and at
each 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.
(r) No Preemptive Rights or Options. Except for the General Partner’s right to maintain its
2% general partner interest in the Partnership, 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 Pricing Disclosure Package and
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’
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knowledge, any membership interests in the General Partner, or (iv) any equity interests in
any Operating Subsidiary.
(s) 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
Teekay Holdings or Teekay Corporation, a Xxxxxxxx Islands corporation and the indirect owner of the
General Partner (“Teekay”), with respect to this Offering, which rights, if any, have been waived.
(t) Capitalization. As of the date hereof, the issued and outstanding limited partner
interests of the Partnership consist of 41,021,963 Common Units, 7,367,286 Subordinated Units and
the Incentive Distribution Rights. All of such Common Units, Subordinated 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
Partnership’s Form 8-A/A filed with the Commission on September 29, 2006 (the “Form 8-A/A”) under
the caption “Our Partnership Agreement—Limited Liability”).
(u) Authority. 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 Pricing Disclosure Package and the Prospectus. At
each Closing Date, all corporate, partnership and limited liability company action, as the case may
be, required to be taken by the Teekay Entities or any of their stockholders, partners or members
for the authorization, issuance, sale and delivery of the Units, the execution and delivery by the
Teekay Parties of this Agreement and the consummation of the transactions contemplated by this
Agreement shall have been validly taken.
(v) Execution and Delivery of this Agreement. This Agreement has been duly authorized,
validly executed and delivered by each of the Teekay Parties.
(w) Enforceability of Other Agreements.
(i) the General Partner LLC Agreement has been duly authorized, executed and
delivered by Teekay Holdings and is a valid and legally binding agreement of Teekay
Holdings, enforceable against Teekay Holdings in accordance with its terms;
(ii) the Partnership Agreement has been duly authorized, executed and delivered by
the General Partner and is a valid and legally binding agreement of the General Partner,
enforceable against the General Partner in accordance with its terms;
(iii) the Operating Company LLC Agreement has been duly authorized, executed and
delivered by the Partnership and is a valid and legally binding agreement of the
Partnership, enforceable against the Partnership in accordance with its terms; and
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(iv) each of the Operating Subsidiaries’ Organizational Documents have been duly
authorized, executed and delivered by the appropriate Teekay Entity and is a valid and
legally binding agreement of such Teekay Entity, enforceable against such Teekay Entity
in accordance with its terms.
provided that, with respect to each agreement described in this Section 1(w), 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 “Organizational Documents.”
(x) No Conflicts. None of the offering, issuance and sale by the Partnership of the Units,
the execution, delivery and performance of this Agreement by the Teekay Parties, the consummation
of the transactions contemplated hereby, or the application of the proceeds from the sale of the
Units as described under “Use of Proceeds” in the Prospectus, (i) conflicts or will conflict with
or constitutes or will constitute a violation of any Organizational Document, (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, or 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 Pricing Disclosure Package and
the Prospectus), which conflicts, breaches, violations, defaults or Liens, in the case of clauses
(ii), (iii) or (iv), could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or could materially impair the ability of any of the Teekay Entities to
perform their obligations under this Agreement.
(y) 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
Exchange Act and applicable state securities or “Blue Sky” laws in connection with the purchase and
distribution of Units by the Underwriters, and (iii) 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, 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
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Partnership of the Units, the execution, delivery and performance of this Agreement by the
parties hereto (other than the Underwriters), or the consummation of the transactions contemplated
by this Agreement.
(z) No Default. None of the Teekay Entities is (i) in violation of its 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. 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.
(aa) Conformity of Securities to Description. The Units, when issued and delivered in
accordance with the terms of the Partnership Agreement against payment therefor as provided herein
will conform in all material respects to the descriptions thereof contained in the Pricing
Disclosure Package and the Prospectus.
(bb) No Material Adverse Change. Since the date of the latest audited financial statements
included in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after
the date hereof) and the Prospectus (exclusive of any amendment or supplement thereto after the
date hereof), (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 Pricing
Disclosure Package (exclusive of any supplement thereto) and the Prospectus (exclusive of any
supplement thereto).
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(cc) Financial Statements. The consolidated historical financial statements (including the
related notes and supporting schedules) included in the Registration Statement, the Pricing
Disclosure Package (and any amendment or supplement thereto) and the Prospectus (and any amendment
or supplement thereto) (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 selected financial data
included or incorporated by reference into the Registration Statement, the Pricing Disclosure
Package (and any amendment or supplement thereto) and the Prospectus (and any amendment or
supplement thereto) is accurately presented in all material respects and prepared on a basis
consistent with the audited historical consolidated financial statements from which it has been
derived.
(dd) Independent Registered Public Accounting Firm. The accountants, Ernst & Young LLP, who
have certified or shall certify the financial statements of the Partnership and the General Partner
and delivered their report with respect to the audited consolidated financial statements included
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, were and are the
independent registered public accounting firm with respect to such entities within the meaning of
the Act and the applicable published rules and regulations thereunder and the rules and regulations
of the Public Company Accounting Oversight Board.
(ee) 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.
(ff) 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
Pricing Disclosure Package and 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
Pricing Disclosure Package and 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 Pricing Disclosure Package and 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
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described in the Pricing Disclosure Package and the Prospectus and are proposed to be used in
the future as described in the Pricing Disclosure Package and the Prospectus.
(gg) 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.
(hh) 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 Pricing Disclosure Package and the Prospectus, subject to such qualifications as may be set
forth in the Pricing Disclosure Package and 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 Pricing
Disclosure Package and 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 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.
(ii) Insurance. Except as set forth in the Pricing Disclosure Package and 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.
(jj) 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, the Pricing Disclosure Package
and the Prospectus, or to be filed as an exhibit thereto, which is not described or filed as
required and the statements in the Registration Statement or the Prospectus
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under the heading “Material Tax Considerations,” insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or proceedings.
(kk) 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, the Pricing Disclosure Package or the Prospectus which is
not adequately disclosed in the Registration Statement, the Pricing Disclosure Package or 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.
(ll) 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 Registration Statement, the Pricing Disclosure Package or 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, the
Pricing Disclosure Package and the Prospectus. No Teekay Entity has, in violation of the
Xxxxxxxx-Xxxxx Act of 2002, directly or indirectly, extended or maintained credit, arranged for the
extension of credit, or renewed an extension of credit, in the form of a personal loan to or for
any director or executive officer of any Teekay Entity.
(mm) 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(vv) hereof) that are effective and
applicable to the Partnership.
(nn) Internal Controls. Each of the Teekay Entities maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with 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 the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Teekay Entities’ “internal
controls over financial reporting” (as such term is defined in Rule 13a-15(f) and Rule
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15d-15(f) under the Exchange Act) are effective and none of the Teekay Entities is aware of
any material weakness in their internal controls over financial reporting.
(oo) Disclosure Controls. The Teekay Entities maintain “disclosure controls and procedures”
(as such term is defined in Rule 13a-15(e) and Rule 15d-15(e) under the Exchange Act); such
disclosure controls and procedures are effective.
(pp) 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.
(qq) 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.
(rr) 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) 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.
(ss) 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,
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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.
(tt) Intellectual Property. Each of the Teekay Entities owns or possesses 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.
(uu) No Distribution of Other Offering Materials. None of the Teekay Entities has distributed
and, prior to the later to occur of (i) each 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, the Pricing Disclosure
Package, the Prospectus, any Issuer Free Writing Prospectus or other materials, if any, permitted
by the Act, including Rule 134 under the Act.
(vv) NYSE Listing. The Units have been approved for listing on the New York Stock Exchange
(“NYSE”), subject only to official notice of issuance.
(ww) Investment 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, 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”).
(xx) Passive Foreign Investment Company. To the best knowledge of the Teekay Parties, none of
the Teekay Entities that have or is generating income is a Passive Foreign Investment Company
(“PFIC”) within the meaning of Section 1297 of the Internal Revenue Code of 1986, as amended (the
“Code”).
(yy) Tax Passthrough Status. None of the Teekay Entities has elected to be treated as a
corporation for United States federal income tax purposes, with the exception of Teekay Tangguh
Holdco LLC. With the exception of Arctic Spirit L.L.C., Polar Spirit L.L.C. and Teekay Tangguh
Holdco LLC, 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).
(zz) 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
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“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.
(aaa) 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.
(bbb) 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.
(ccc) 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.
(ddd) Brokers. Except as described in the Pricing Disclosure Package and 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.
(eee) 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.
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(fff) Prohibition on Dividends. Except as provided in credit and loan agreements described in
the Pricing Disclosure Package and Prospectus 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.
(ggg) Statistical and Market Data. The statistical and market-related data included in the
Pricing Disclosure Package and the Prospectus 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 $23.36 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 525,000 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 Representatives to the Partnership setting
forth the number of Option Units as to which the several Underwriters are exercising the option and
the settlement date. The number of Option Units to be purchased by each Underwriter shall be the
same percentage of the total number of Option Units to be purchased by the several Underwriters as
such Underwriter is purchasing of the Firm Units, subject to such adjustments as the
Representatives in their 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 10:30 AM, New York City
time, on November 20, 2009 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 the Representatives
shall designate, which date and time may be postponed by agreement between
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the Representatives and the Partnership or as provided in Section 9 hereof (such date
and time of delivery and payment for the Units being herein called the “Closing Date”). Delivery
of the Units shall be made to the Representatives for account of each Underwriter against payment
by the several Underwriters through the Representatives of the purchase price thereof to or upon
the order of the Partnership by wire transfer payable in same-day funds to an account specified by
the Partnership. Delivery of the Units shall be made through the facilities of The Depository
Trust Company (“DTC”) unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third
Business Day prior to the initial Closing Date, the Partnership will deliver the Option Units (at
the expense of the Partnership) to the Representatives, on the date specified by the
Representatives (which shall be within three Business Days after exercise of said option) for
account of each Underwriter against payment by the several Underwriters through the Representatives
of the purchase price thereof to or upon the order of the Partnership by wire transfer payable in
same-day funds to an account specified by the Partnership. Delivery of the Option Units shall be
made through the facilities of DTC unless the Representatives shall otherwise instruct. If
settlement of the Option Units occurs after the initial Closing Date, the Partnership will deliver
to the Representatives for the account of each Underwriter on the 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 initial Closing Date pursuant to Section
6 hereof.
For purposes of this Agreement, the term “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.
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 Pricing Disclosure Package and the
Prospectus.
5. Agreements. Each of the Teekay Parties, jointly and severally, agrees with the
several Underwriters that:
(a) Preparation of Prospectus. The Partnership will prepare the Prospectus in a form approved
by the Representatives and file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission’s close of business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A
under the Act. The Partnership will make no further amendment or any supplement to the Registration
Statement, the Pricing Disclosure Package or the Prospectus prior to the Closing Date without your
consent, which will not be unreasonably withheld, except as permitted herein and will advise the
Representatives, promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish you with copies thereof. The Partnership will
file promptly all reports and other documents required to be filed by it with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a
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prospectus is required in connection with the offering and sale of the Units, and will advise
the Representatives, promptly after it receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of the Pricing Disclosure
Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the
qualification of the Units for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement, the Pricing Disclosure Package, the
Prospectus or any Issuer Free Writing Prospectus or for additional information, and in the event of
the issuance of any stop order or of any order preventing or suspending the use of the Pricing
Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(b) Signed Copy of Registration Statement. The Partnership will furnish promptly to the
Representatives and to counsel for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
(c) Delivery of Documents. The Partnership will deliver promptly to the Representatives such
number of the following documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits), (ii) the Pricing Disclosure Package, the Prospectus and
any amended or supplemented Prospectus, (iii) each Issuer Free Writing Prospectus and (iv) any
document incorporated by reference into the Registration Statement, the Pricing Disclosure Package
or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at
any time after the Applicable Time in connection with the offering or sale of the Units or any
other securities relating thereto and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference into to the Prospectus in
order to comply with the Act or the Exchange Act, the Partnership will notify the Representatives
and, upon their request, will file such document and will prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended or supplemented Prospectus which will correct such statement
or omission or effect such compliance.
(d) Amendments and Supplements. The Partnership will file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that
may be required by the Act or requested by the Commission during such period as the Underwriters
may have a prospectus delivery requirement.
(e) Filings with the Commission. At any time before the termination of the offering of the
Units, prior to filing with the Commission any amendment to the Registration Statement or
supplement to the Prospectus, any document incorporated by reference in the Prospectus, any
amendment to any document incorporated by reference in the Prospectus, or any
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prospectus pursuant to Rule 424(b) of the Rules and Regulations, the Partnership will furnish
a copy thereof to the Representatives and will not file any such document to which the
Representatives shall reasonably object after having been given reasonable notice of the proposed
filing thereof unless the Partnership is required by law to make such filing.
(f) No Issuer Free Writing Prospectuses without Consent. The Teekay Parties will not make any
offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the
prior written consent of the Representatives.
(g) Retention of Issuer Free Writing Prospectuses; Content. The Partnership will retain in
accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be
filed pursuant to the Rules and Regulations; and if at any time after the date hereof through the
completion of the offering of the Units any events shall have occurred as a result of which any
Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the
information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or
would include an untrue statement of a material fact or omit 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, or, if for any other reason it shall be necessary to amend or supplement any
Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such
documents and to prepare and furnish without charge to the Underwriters as many copies as it may
from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus,
that will correct such conflict, statement or omission or effect such compliance.
(h) Reports to Unitholders. As soon as practicable, but in any event not later than 90 days
after the close of the period covered thereby, the Partnership will make generally available to its
unitholders and to the Representatives an earnings statement or statements of the Teekay Entities
(excluding the General Partner) which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(i) Copies of Reports. For a period of two years following the date hereof, the Partnership
will furnish to the Underwriters copies of all materials furnished by the Partnership to its
unitholders and all reports and financial statements furnished by the Partnership to the NYSE
pursuant to requirements of or agreements with the NYSE or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder (other than any annual CEO
certification and annual written affirmations to the NYSE), in each case to the extent that such
materials, reports and financial statements are not publicly filed with the Commission.
(j) Qualification of Securities. The Partnership will arrange, if necessary, for the
qualification of the Units for sale under the laws of such jurisdictions as the Representatives may
reasonably designate and will maintain such qualifications in effect so long as reasonably required
for the distribution of the Units; provided that in no event shall the Partnership be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those arising out of the offering
or sale of the Units, in any jurisdiction where it is not now so subject. The Partnership will,
from time to time, prepare and file such statements and reports as are or may be reasonably
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required of it to continue such qualifications in effect for so long a period as the
Representatives may reasonably request for the distribution of the Units.
(k) Lock-up Period; Lock-up Letters. The Teekay Entities will not, without the prior written
consent of the Representatives, 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 60 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.
(l) 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.
(m) Price Manipulation. The Teekay Entities will not take, directly or indirectly, any action
designed to or that would constitute or that could reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of
the Partnership to facilitate the sale or resale of the Units.
(n) 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, any Issuer Free Writing 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, any Issuer Free Writing 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
Financial Industry Regulatory Authority (“FINRA”) (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
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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 Sections 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.
(o) Use of Proceeds. The Teekay Entities will use the net proceeds received by them from the
sale of the Units as set forth in the Pricing Disclosure Package and the Prospectus.
(p) Investment Company; PFIC. For a period of five years after the Closing Date or, if later,
the Closing Date for the Option Units, the Partnership will use its best reasonable efforts to
ensure that no Teekay Entity, nor any subsidiary thereof, shall become (i) an “investment company”
as defined in the 1940 Act or (ii) a PFIC that would require action on the part of a unitholder to
make an election to treat the PFIC as a “qualified electing fund” with respect to such unitholder.
The Partnership shall either (i) prior to the initial Closing Date, cause Arctic Spirit L.L.C. to
become a subsidiary of Teekay LNG Holdings L.P. or (ii) after the final Closing Date but prior to
January 1, 2010, cause Arctic Spirit L.L.C. to issue cash or in-kind distributions to the
Partnership in an amount not less than $11,250,000. Further, the Partnership shall either (i) prior
to the initial Closing Date, cause Polar Spirit L.L.C. to become a subsidiary of Teekay LNG
Holdings L.P. or (ii) after the final Closing Date but prior to January 1, 2010, cause Polar Spirit
L.L.C. to issue cash or in-kind distributions to the Partnership in an amount not less than
$11,250,000.
(q) PFIC Notice to Unitholders. If the Partnership notifies its unitholders that it or a
subsidiary will be a PFIC, it will contemporaneously give similar notice to the Representatives,
along with information concerning the potential availability of a “qualified electing fund”
election (or elections) under Section 1295 of the Code or any other applicable election with
respect to each Teekay Entity that is a PFIC.
(r) Sanctions Laws and Regulations. The Partnership will not take, and will cause each
subsidiary not to take, directly or indirectly, any action that could reasonably be expected to
result in a violation by any U.S. person participating in the offering of the Sanctions Laws and
Regulations with respect to the sale of the Units hereunder. Further, the Partnership will not use,
and will cause each subsidiary not to use, the proceeds from the sale of the Units, directly or
indirectly, for any purpose or activity that would cause the Underwriters or any purchaser of the
Units to be in violation of the Sanctions Laws and Regulations or any agent or “Specially
Designated National” of any country the subject of the Sanctions Laws and Regulations, or any
person or entity of any country the subject of the Sanctions Laws and Regulations.
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
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contained herein as of the Applicable Time and each Closing Date pursuant to Section 2
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) The Prospectus shall have been timely filed with the Commission in accordance with
Section 5(a) of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Pricing Disclosure Package, the
Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or
examination for such purpose shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in the Registration Statement or
the Prospectus or otherwise shall have been disclosed to the Representatives and complied with to
their satisfaction.
(b) All corporate, partnership and limited liability company proceedings and other legal
matters incident to the authorization, form and validity of this Agreement, the Registration
Statement, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing 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) The Partnership shall have requested and caused Xxxxxx, Xxxxxx & Xxxxxxxx (New York) LLP,
special regulatory and Xxxxxxxx Islands counsel for the Partnership, to have furnished to you their
written opinion, dated each Closing Date and addressed to you, in form and substance reasonably
satisfactory to the Representatives, 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, the Pricing Disclosure Package 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 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, the Pricing Disclosure Package and the
Prospectus.
(iii) 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
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and clear of all Liens (except for restrictions on transferability contained in the
Partnership Agreement, as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus or under applicable securities laws).
(iv) Ownership of the Sponsor Units and the Incentive Distribution Rights. Teekay
Holdings 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,
Teekay Holdings 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
Registration Statement, the Pricing Disclosure Package and the Prospectus or under
applicable law).
(v) Valid Issuance of the Firm Units. The Units and the limited partner interests
represented thereby 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.
(vi) Ownership of the General Partner. Teekay Holdings 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; and, to counsel’s knowledge, Teekay Holdings directly owns such
membership interest free and clear of all Liens.
(vii) 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 Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(viii) Ownership of the Operating Subsidiaries. The Operating Company owns,
directly or indirectly, the membership interests in each of the Operating Subsidiaries
set forth in Schedule II and formed in the Republic of The Xxxxxxxx Islands; such
membership interests have been duly authorized and validly issued in accordance with the
limited liability company agreement of each Operating Subsidiary and have been fully
paid (to the extent required under each Operating Subsidiary’s limited liability company
agreement) and nonassessable; and to our
-23-
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 Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(ix) No Preemptive Rights or Options. Except for the General Partner’s right to
maintain its 2% general partner interest in the Partnership, 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, or (ii) any
membership interests in the General Partner or the Operating Company, 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 Registration Statement, the Pricing Disclosure Package and
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 or the Operating
Company.
(x) No Registration Rights. To the knowledge of such counsel and except for rights
waived by Teekay, 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 for or
relating to the registration of any securities of any of the General Partner, the
Partnership or the Operating Company (except, in the case of the Partnership, with
respect to the Units as contemplated by the Registration Statement, the Pricing
Disclosure Package and the Prospectus).
(xi) 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, the Pricing Disclosure Package and the Prospectus. All corporate, limited
partnership and limited liability company action, as the case may be, required to be
taken by the Teekay Parties and Teekay 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 has been validly taken.
(xii) Due Execution and Delivery of the Underwriting Agreement. This Agreement has
been duly authorized, validly executed and delivered by each of the Teekay Parties and
Teekay.
(xiii) Enforceability of the Partnership Agreement. The Partnership Agreement
constitutes a valid and legally binding obligation of each Teekay Party party thereto,
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
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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 such agreement may be limited by applicable laws and public
policy.
(xiv) No Conflicts. None of the offering, issuance and sale by the Partnership of
the Units, the execution, delivery and performance of this Agreement, or the
consummation of the transactions contemplated hereby (i) conflicts or will conflict with
or constitutes or will constitute a violation of the Organizational Documents of the
Teekay Parties, the organizational documents of Teekay or of any of the Operating
Subsidiaries set forth in Schedule II and formed in the Republic of The Xxxxxxxx
Islands, (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 indenture, contract, mortgage, deed of
trust, note agreement, loan agreement, lease or other agreement or instrument governed
by the law of the Republic of The Xxxxxxxx Islands filed as an exhibit to the
Registration Statement (including, without limitation, any document filed as an exhibit
to any document incorporated by reference into 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 Entities.
(xv) No Consents. No consent (as such term is defined in Section 1(y)
hereof) of or with any court, governmental agency or body under the law of the Republic
of The Xxxxxxxx Islands having jurisdiction over any Teekay Entity or any of their
respective properties is required for the offering, issuance and sale by the Partnership
of the Units, the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated by this Agreement.
(xvi) Permits. To the knowledge of such counsel, no permits (as such term is
defined in Section 1(hh) 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 Entities formed under the law of the Republic of The
Xxxxxxxx islands to own or lease its properties and to conduct its business in the
manner described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(xvii) Accuracy of Statements. The statements (A) in the Registration Statement
under the captions “Non-United States Tax Considerations — Xxxxxxxx Islands Tax
Considerations” and “Service of Process and Enforcement of Civil Liabilities,” (B) in
the Partnership’s amended Annual Report on Form 20-F filed with the Commission on June
29, 2009 (the “Form 20-F”) under the caption “Item 4. Information on the Partnership —
D. Taxation of the Partnership — Xxxxxxxx Islands Taxation” and “Item 10. Additional
Information — Taxation to Unitholders — Xxxxxxxx Islands Tax Consequences,” insofar as
they constitute descriptions of
-25-
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.
(xviii) 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 (A) in the Registration Statement under the captions
“Non-United States Tax Considerations — Xxxxxxxx Islands Tax Considerations” and
“Service of Process and Enforcement of Civil Liabilities,” (B) in the 20-F under the
caption “Item 4 — Information on the Partnership — C. Regulations — Regulation -
International Maritime Organization (or IMO),” and “Item 4. Information on the
Partnership — D. Taxation of the Partnership — Xxxxxxxx Islands Taxation,” (C) in the
Partnership’s Form 6-K filed with the Commission on November 16, 2009 (the “Form 6-K”)
under the caption “Item 1 — Information Contained in this Form 6-K Report — Regulations
— Environmental Regulations — The United States Regulations” and “Item 1 — Information
Contained in this Form 6-K Report — Regulations — Other Environmental Initiatives,” and
(D) in the Form 8-A/A under the captions “Our Partnership Agreement” (in each case
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 Form 20-F or Form 8-A/A, as of the Applicable Time and as of the Closing
Date, 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.
(xix) 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.
(xx) 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.
(xxi) 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.
(xxii) 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
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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, that
all copies submitted to them conform to the originals thereof, and that the signatures on all
documents examined by them are genuine, (C) state that their opinion is limited to the laws of The
Republic of the Xxxxxxxx Islands and United States federal law.
(d) The Partnership shall have requested and caused Xxxxxxx Coie LLP, counsel for the
Partnership, to have furnished to you their written opinion, dated each Closing Date and addressed
to you, in form and substance reasonably satisfactory to the Representatives, to the effect that:
(i) Description of Tax Matters. The statements in the Registration Statement under
the caption “Material U.S. Federal Income Tax Considerations — Tax-Exempt Organizations
and Non-U.S. Investors,” and in the Form 20-F under the caption “Item 4. Information on
the Partnership — D. Taxation of the Partnership — United States Taxation” insofar as
they purport to constitute a summary of law or legal conclusions, fairly describe in all
material respects the portions of the statutes and regulations addressed thereby (except
for the representations and statements of fact of the Partnership included in such
discussion, as to which such counsel need not comment).
(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
Registration Statement, the Pricing Disclosure Package and 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
the General Partner or an Affiliate (as defined in the Partnership
-27-
Agreement) of the General Partner pursuant to the Partnership Agreement, which
rights have been waived or do not apply with respect to this Offering.
(v) Accuracy of Statements. The statements (A) in the Registration Statement under
the captions “Cash Distributions” and “Description of the Common Units,” (B) in the Form
8-A/A under the captions “Our Partnership Agreement” and “Cash Distributions,” and (C)
in subsections a), b) and d) in the Form 20-F under the caption “Item 7. Major
Unitholders and Related Party Transactions — Related Party Transactions,” 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 under the captions “Cash
Distributions” and “Description of the Common Units” and in the Form 8-A/A under the
captions “Our Partnership Agreement” and “Cash Distributions”; 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 October 29, 2009; the Preliminary Prospectus and
the Prospectus has been or will be filed with the Commission pursuant to Rule 424(b) 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, on the Effective Date,
and the Prospectus, when filed with the Commission pursuant to Rule 424(b) and on each
Closing Date (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 and Regulations.
(viii) Documents Incorporated by Reference. The documents incorporated by
reference in the Registration Statement and the Prospectus or any further amendment or
supplement thereto made by the Partnership prior to the Closing Date (other than the
financial statements and related schedules and other financial and statistical
information included in such documents, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission, as the case may
be, complied as to form in material respects with the applicable requirements of the
Exchange Act and the rules and regulations of the Commission thereunder.
(ix) 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, the Pricing Disclosure Package or the
-28-
Prospectus which is not disclosed in the Registration Statement, the Pricing
Disclosure Package or 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, the Pricing Disclosure Package
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.
(x) 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
U.S. counsel to the Partnership, in the preparation of the Registration Statement, the Pricing
Disclosure Package and the Prospectus, such counsel has examined information available to it,
including legal records, documents and proceedings, and has attended conferences with, among
others, representatives of the Underwriters, officers and other representatives of the Teekay
Entities and the independent public accountants for the Partnership, at which conferences the
contents of the Registration Statement, the Pricing Disclosure Package 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, the Pricing Disclosure Package or the Prospectus, no facts have come
to such counsel’s attention that cause such counsel to believe that (A) 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; (B) the Pricing Disclosure Package, when considered together as of the Applicable Time,
contained an untrue statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading; or (C) the Prospectus, as of its issue date or as of each 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, the Pricing Disclosure Package or the Prospectus).
(e) The Partnership shall have requested and caused Xxxxxx Xxxxxxxx, Associate General Counsel
for Teekay, to have furnished to you a letter, dated the Closing Date and addressed to you, in form
and substance reasonably satisfactory to the Representatives, 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 its representatives, at which the
contents of the Registration Statement, the Pricing Disclosure Package 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, the Pricing Disclosure Package and the
Prospectus, no facts have come to such counsel’s attention that cause such counsel to believe that
(A) the Registration Statement, as of
-29-
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, (B) the Pricing Disclosure Package, when considered together as of the Applicable Time,
contained an untrue statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading or (C) that the Prospectus, as of its issue date and each 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 (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, the Pricing Disclosure Package or the Prospectus).
(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 each Closing
Date and addressed to you, in form and substance reasonably satisfactory to the Representatives, to
the effect that:
(i) Luxco. Teekay Luxembourg S.a.r.l., a Luxembourg company (“Luxco”), is a
company duly incorporated and validly existing under the laws of Grand-Duchy of
Luxembourg (“Luxembourg”) and has all requisite corporate capacity and power to acquire
and own securities and or participations in Luxembourg or foreign corporations and to
own or lease its properties and conduct its business, in each case in all material
respects as described in 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.
(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.
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(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 each Closing
Date and addressed to you, in form and substance reasonably satisfactory to the Representatives, to
the effect that such advisor confirms that the discussion contained in the Form 20-F under the
caption “Item 4. Information on the Partnership — D. 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.
(h) The Partnership shall have requested and caused Xxxx Xxxxxxxx Abogados, S.L.P., special
Spanish counsel for the Partnership, to have furnished to you their written opinion, dated each
Closing Date and addressed to you, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) Formation of Spanish Subsidiaries. Each of the Spanish subsidiaries of the
Partnership listed on a schedule to such counsel’s opinion (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, the Pricing Disclosure Package 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 Luxco free and
clear of all Liens, other than the pledges set forth on a schedule to such counsel’s
opinion (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. and in the
Credit Agreements.
-31-
(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 Registration Statement, the Pricing
Disclosure Package and 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 Registration
Statement, the Pricing Disclosure Package and 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, 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 Xxxx Xxxxxxxx Abogados, S.L.P., special
Spanish tax counsel to the Partnership, to have furnished to you their written opinion, dated each
Closing Date and addressed to you, in form and substance reasonably satisfactory to the
Representatives, to the effect that such counsel confirms that the discussion contained in the Form
6-K under the caption “Item 1 — Information Contained in this Form 6-K Report — 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 XxXxxxxx Xxxxxxxx LLP, special Canadian
counsel for the Partnership, to have furnished to you their written opinion, dated each Closing
Date and addressed to you, in form and substance reasonably satisfactory to the Representatives, to
the effect that in the opinion of such counsel, the description in the Form 20-F under the caption
“Item 10. Additional Information —— Taxation to Unitholders — Canadian Federal Income Tax
Consequences” and in the Prospectus under the caption “Non-United States Tax Considerations —
Canadian Federal Income Tax Considerations” is a fair summary of the
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material Canadian federal income tax considerations 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 each Closing
Date and addressed to you, in form and substance reasonably satisfactory to the Representatives, to
the effect that such advisor confirms that the discussion contained in the first four paragraphs in
the Form 6-K under the caption “Item 1 — Information Contained in this Form 6-K Report — Taxation
of the Partnership — Qatar 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).
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 each Closing Date and addressed to the Underwriters,
with respect to such matters as the Representatives 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 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 this
Agreement, the Registration Statement, the Prospectus, the Pricing Disclosure Package and any
supplements to the Prospectus and that:
(i) the representations and warranties of the Teekay Parties in this Agreement are
true and correct on and as of such Closing Date with the same effect as if made on such
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 such Closing
Date;
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(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
Registration Statement, the Pricing Disclosure Package (exclusive of any supplement
thereto) or 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 Registration Statement, the
Pricing Disclosure Package (exclusive of any supplement thereto) and the Prospectus
(exclusive of any supplement thereto); and
(iv) such other matters as you may reasonably request.
The Partnership shall have requested and caused Ernst & Young LLP to have furnished to the
Underwriters, at the Applicable Time and at each Closing Date, comfort letters, dated respectively
as of the Applicable Time and as of each Closing Date, in form and substance reasonably
satisfactory to the Representatives.
(n) Subsequent to the Applicable Time or, if earlier, the dates as of which information is
given in the Registration Statement (exclusive of any amendment thereof), the Pricing Disclosure
Package (exclusive of any supplement thereto) 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 Preliminary Prospectus and the Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it impractical or inadvisable
to proceed with the offering or delivery of the Units as contemplated by the Registration Statement
(exclusive of any amendment thereof), the Pricing Disclosure Package (exclusive of any supplement
thereto) and the Prospectus (exclusive of any supplement thereto).
(o) Prior to each Closing Date, the Teekay Entities shall have furnished to the Underwriters
such further information, certificates and documents as the Representatives may reasonably request.
(p) Subsequent to the Applicable 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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(q) 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.
(r) At the Applicable Time, the Partnership shall have furnished to the Underwriters a letter
substantially in the form of Exhibit A hereto addressed to the Representatives from Teekay
Holdings and from the executive officers and directors of the General Partner.
If any of the conditions specified in this Section 6 shall not have been fulfilled
when and as provided in this Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, each Closing Date by the
Representatives. Notice of such cancellation shall be given to the Partnership in writing or by
telephone or facsimile confirmed in writing.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Units provided for
herein is not consummated because any condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied, because of any termination pursuant to Section
10 hereof or because of any refusal, inability or failure on the part of the Teekay Parties to
perform any agreement herein or comply with any provision hereof other than by reason of a default
by any of the Underwriters, the Teekay Parties will reimburse the Underwriters severally through
the Representatives 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 the Pricing Disclosure Package, any
Issuer Free Writing 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
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information furnished to the Teekay Parties through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein. This 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 through the Representatives 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 Underwriters confirm and the Teekay Parties acknowledge that the statements
set forth in the last paragraph of the cover page regarding delivery of the Units and, under the
heading “Underwriting”, (i) the name of each Underwriter and its participation in the sale of the
Units, (ii) the first sentence of the fifth paragraph regarding offers by the Underwriters and
selling concessions and (iii) the tenth, eleventh and twelfth paragraphs related to stabilization,
syndicate covering transactions, penalty bids and discretionary sales in the Prospectus constitute
the only information concerning the Underwriters furnished in writing to the Partnership through
the Representatives by or on behalf of the Underwriters specifically for inclusion in the
Registration Statement, the Pricing Disclosure Package, the Prospectus and any Issuer Free Writing
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
-36-
party to represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld, conditioned or delayed), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement, compromise
or consent (x) includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and (y) does not include a statement as to or
an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(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
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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 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, the Pricing Disclosure Package, the Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Teekay Parties and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Partnership prior to delivery of and
payment for the Units, if at any time prior to such time (i) trading in the Partnership’s Common
Units shall have been suspended by the Commission or the NYSE, (ii) trading in securities generally
on the NYSE shall have been suspended or limited or minimum prices shall have been established on
such Exchange, (iii) a banking moratorium shall have been declared either by Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or delivery of the Units
as contemplated by the Pricing Disclosure Package or the Prospectus (in each case 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.
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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 c/o UBS
Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Syndicate Department; or, if
sent to the Partnership, will be mailed, delivered or telefaxed to Teekay LNG Partners L.P., Teekay
House, Bayside Executive Park, West Bay Street and Xxxxx Xxxx, X.X. Xxx XX-00000, Xxxxxx,
Xxxxxxxxxxxx of the Bahamas, Attn. Corporate Secretary (fax no. 000-000-0000) with a copy to
Xxxxxxx Coie LLP, 0000 X.X. Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxx 00000-0000, Attn:
Xxxxxxxxxxx Xxxx (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
-39-
currency other than United States dollars, not be discharged until the first business day,
following receipt by the Underwriters of any sum adjudged to be so due in such other currency, on
which (and only to the extent that) the Underwriters may in accordance with normal banking
procedures purchase United States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to the Underwriters hereunder, the Teekay Parties
agree, as a separate obligation and notwithstanding any such judgment, that the party responsible
for such judgment shall indemnify the Underwriters against such loss. If the United States dollars
so purchased are greater than the sum originally due to the Underwriters hereunder, the
Underwriters agree to pay to the Teekay Parties an amount equal to the excess of the dollars so
purchased over the sum originally due to the Underwriters hereunder.
16. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
17. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
18. No Fiduciary Duty. The Partnership hereby acknowledges that (a) the Underwriters
are acting as a 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).
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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: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx | ||||
| Chief Executive Officer and Chief Financial Officer | ||||
| TEEKAY GP L.L.C. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx | ||||
| Chief Executive Officer and Chief Financial Officer | ||||
| 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: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx | ||||
| Chief Executive Officer and Chief Financial Officer | ||||
Signature Page to the Underwriting Agreement
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
confirmed and accepted as of the
date first written above.
| By: | UBS SECURITIES LLC | |||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxx Xxxx | |||
| Name: | Xxx Xxxx | |||
| Title: | Director | |||
| By: | CITIGROUP GLOBAL MARKETS INC. | |||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxxx | |||
| Title: | Director | |||
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
several Underwriters named in
Schedule I to the foregoing
Agreement.
Signature Page to the Underwriting Agreement
Annex 1
None.
Annex 2
Pricing Information
Number of Units: |
3,500,000 | |||
Price to Public: |
$24.40 | |||
Closing Date: |
November 20, 2009 | |||
SCHEDULE I
| Number of Firm | ||||
| Underwriter | Units to be Purchased | |||
UBS Securities LLC |
1,575,000 | |||
Citigroup Global Markets Inc. |
1,575,000 | |||
RBC Capital Markets Corporation |
280,000 | |||
Scotia Capital (USA) Inc. |
70,000 | |||
TOTAL |
3,500,000 | |||
SCHEDULE II
LIST OF OPERATING SUBSIDIARIES
| Ownership | ||||||
| Subsidiary | Percentage | Jurisdiction | ||||
Teekay LNG Operating L.L.C.
|
100 | % | Xxxxxxxx Islands | |||
Teekay Nakilat Holdings Corporation
|
100 | % | Xxxxxxxx Islands | |||
Teekay Nakilat Corporation
|
70 | % | Xxxxxxxx Islands | |||
Al Marrouna Inc.
|
70 | % | Xxxxxxxx Islands | |||
Al Areesh Inc.
|
70 | % | Xxxxxxxx Islands | |||
Al Daayen Inc.
|
70 | % | Xxxxxxxx Islands | |||
Teekay Nakilat (II) Ltd.
|
70 | % | United Kingdom | |||
Teekay Nakilat Replacement Purchaser LLC
|
70 | % | Xxxxxxxx Xxxxxxx | |||
Xxxxxx Xxxxxxxxxx S.A.R.L.
|
100 | % | Luxembourg | |||
Teekay Spain, S.L.
|
100 | % | Spain | |||
Teekay II Iberia S.L.
|
100 | % | Spain | |||
Teekay Shipping Spain, S.L. (formerly Naviera X. Xxxxxx, S.A.)
|
100 | % | Spain | |||
Naviera Teekay Gas, S.L. (formerly Naviera X. Xxxxxx Gas, S.A.)
|
100 | % | Spain | |||
Naviera Teekay Gas II, S.L. (formerly Naviera X. Xxxxxx Gas II, S.A.)
|
100 | % | Spain | |||
Naviera Teekay Gas III, S.L. (formerly Naviera X. Xxxxxx Gas III, S.A.)
|
100 | % | Spain | |||
Naviera Teekay Gas IV, S.L. (formerly Naviera X. Xxxxxx Gas IV, S.A.)
|
100 | % | Spain | |||
Teekay Servicios Maritimos, S.L. (formerly Naviera X. Xxxxxx Servicios Maritimos, S.A.)
|
100 | % | Spain | |||
| Ownership | ||||||
| Subsidiary | Percentage | Jurisdiction | ||||
Dania Spirit
|
100 | % | Xxxxxxxx Islands | |||
African Spirit L.L.C.
|
100 | % | Xxxxxxxx Islands | |||
Asian Spirit L.L.C.
|
100 | % | Xxxxxxxx Islands | |||
European Spirit L.L.C.
|
100 | % | Xxxxxxxx Islands | |||
Taizhou Hull No. WZL 0501 LLC
|
100 | % | Xxxxxxxx Xxxxxxx | |||
Xxxxxxx Xxxx Xx. XXX 0000 LLC
|
100 | % | Xxxxxxxx Xxxxxxx | |||
Xxxxxxx Xxxx Xx. XXX 0000 LLC
|
100 | % | Xxxxxxxx Islands | |||
Arctic Spirit L.L.C.
|
100 | % | Xxxxxxxx Islands | |||
Polar Spirit L.L.C.
|
100 | % | Xxxxxxxx Islands | |||
Teekay Nakilat (III) Holdings Corporation
|
100 | % | Xxxxxxxx Islands | |||
Teekay LNG US GP L.L.C.
|
100 | % | Xxxxxxxx Xxxxxxx | |||
Xxxxxx XXX Holdings L.P.
|
99 | % | USA | |||
Teekay Tangguh Holdco L.L.C.
|
99 | % | Xxxxxxxx Xxxxxxx | |||
Xxxxxx Xxxxxxx Xxxxxxxx X.X.X.
|
00 | % | Xxxxxxxx Islands | |||
Teekay Tangguh Holdings Corporation
|
99 | % | Xxxxxxxx Islands | |||
Teekay BLT Corporation
|
69.3 | % | Xxxxxxxx Xxxxxxx | |||
X.X.X. Xxxx Xx. 0000 L.L.C.
|
69.3 | % | Xxxxxxxx Xxxxxxx | |||
X.X.X.X. Xxxx Xx. X000 L.L.C.
|
69.3 | % | Xxxxxxxx Islands | |||
Tangguh Sago Finance Ltd.
|
69.3 | % | United Kingdom | |||
Tangguh Hiri Finance Ltd.
|
69.3 | % | United Kingdom | |||
Tangguh Sago Operating Ltd.
|
69.3 | % | United Kingdom | |||
Tangguh Hiri Operating Ltd.
|
69.3 | % | United Kingdom | |||
EXHIBIT A
[Form of Lock-Up Agreement]
Teekay LNG Partners L.P.
Public Offering of Common Units
Public Offering of Common Units
November __, 2009
UBS Securities LLC
c/o UBS Securities LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
c/o UBS Securities LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 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,
Teekay LNG Operating L.L.C., a Xxxxxxxx Islands limited liability company, and Teekay Corporation,
a Xxxxxxxx Islands corporation, and you as the Underwriter named therein, relating to an
underwritten public offering of common units representing limited partner interests in the
Partnership (“Common Units”).
In order to induce you and the other Underwriters named in the Underwriting Agreement to enter
into the Underwriting Agreement, the undersigned will not, without the prior written consent of UBS
Securities LLC and 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 60 days after the date of the Underwriting Agreement (the “Restricted Period”),
other than dispositions of Common Units by gift to the undersigned’s immediate family members, to
trusts established for the benefit of the undersigned’s immediate family members or to charitable
organizations (provided that any such person, trust or charitable organization agrees as a
condition to receiving such gift to be bound by the terms of the foregoing terms of this sentence).
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
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: | ||||
EXHIBIT B
LIST OF VESSELS AND OWNERS
| Jurisdiction of | ||||
| Operating LNG Vessels | Owner | Registration | ||
Hispania Spirit
|
Naviera Teekay Gas, S.L. | Spain | ||
Galicia Spirit
|
Naviera Teekay Gas II, S.L. | Spain | ||
Catalunya Spirit
|
Naviera Teekay Gas III, S.L. | Spain | ||
Arctic Spirit
|
Arctic Spirit L.L.C. | Bahamas | ||
Polar Spirit
|
Polar Spirit L.L.C. | Bahamas | ||
Tangguh Hiri
|
Tangguh Hiri Operating Ltd | Bahamas | ||
Tangguh Sago
|
Tangguh Sago Operating Ltd | Bahamas |
| Jurisdiction of | ||||
| Operating LPG Tankers | Owner | Registration | ||
Dania Spirit
|
Dania Spirit | Bahamas | ||
Skaugen Norgas PAN
|
Taizhou Hull No. WZL 0501 LLC | Singapore |
| Jurisdiction of | ||||
| Operating Suezmax Tankers | Owner | Registration | ||
European Spirit
|
European Spirit L.L.C. | Bahamas | ||
African Spirit
|
African Spirit L.L.C. | Bahamas | ||
Asian Spirit
|
Asian Spirit L.L.C. | Bahamas |
