EXHIBIT 10.7
LNG STRATEGIC CONSULTING AND ADVISORY SERVICES AGREEMENT
THIS AGREEMENT made effective the ____ day of _________ 2005;
BY AND BETWEEN:
TEEKAY SHIPPING SPAIN S.L., a corporation duly organized and existing under
the laws of the Spain with principal offices at Xxxxx xxxxxx xx. 0 - 0xx
xxxxx, 00000 Xxxxxx, Xxxxx
("TK Spain")
AND:
TEEKAY LNG PROJECTS LTD., a British Columbia company with an office at
Suite 2000 Bentall 5, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx
("TK Projects")
WHEREAS:
A. TK SPAIN, a corporation that operates vessels, requires certain
strategic consulting and advisory services to supplement the existing
capabilities of TK Spain's employees; and
B. TK SPAIN wishes to engage TK Projects to provide such strategic
consulting and advisory services to TK SPAIN on the terms set out
herein;
NOW THEREFORE, the parties agree that, in consideration of the fees set forth in
Schedule "B" to this Agreement (the "Fees") and subject to the Terms and
Conditions attached hereto, TK Projects shall provide the strategic consulting
and advisory services set forth in Schedule "A" to this Agreement (the
"Services").
IN WITNESS WHEREOF the Parties have executed this Agreement by their duly
authorized signatories with effect on the date first above written.
TEEKAY SHIPPING SPAIN S.L. TEEKAY LNG PROJECTS LTD.
By: __________________________ By: __________________________
Name: Name:
Title: Title:
TERMS AND CONDITIONS
1. DEFINITIONS
In this Agreement: the term "Change of Control" means with respect to any
entity, an event in which securities of any class entitling the holders thereof
to elect a majority of the members of the board of directors or other similar
governing body of the entity are acquired, directly or indirectly, by a person
who did not immediately before such acquisition own securities of the entity
entitling such person to elect such majority (and for the purpose of this
definition, any such securities held by another person who is related to such
person shall be deemed to be owned by such person);
2. GENERAL
TK Projects shall provide all or such portion of the Services, in a commercially
reasonable manner, as TK SPAIN, may from time to time reasonably request or
direct.
3. COVENANTS
During the term of this Agreement TK Projects shall:
(a) diligently provide or subcontract for the provision of (in accordance with
Section 18 hereof) the Services to TK SPAIN (unless the provision of such
Services by TK Projects would materially interfere with Teekay Shipping
Corporation's operations) as an independent contractor, and be responsible
to TK SPAIN for the due and proper performance of same;
(b) retain at all times a qualified staff so as to maintain a level of
expertise sufficient to provide the Services; and
(c) keep full and proper books, records and accounts showing clearly all
transactions relating to its provision of Services in accordance with
established general commercial practices and in accordance with United
States generally accepted accounting principles, and allow TK SPAIN and its
representatives to audit and examine such books, records and accounts at
any time during customary business hours.
4. NON-EXCLUSIVITY
TK Projects and its employees may provide services of a nature similar to the
Services to any other person. There is no obligation for TK Projects to provide
the Services to TK SPAIN on an exclusive basis.
5. CONFIDENTIAL INFORMATION
TK Projects shall be obligated to keep confidential, both during and after the
term of this Agreement, all information it has acquired or developed in the
course of providing Services under this Agreement. TK SPAIN shall be entitled to
any equitable remedy available at law or equity, including specific performance,
against a breach by TK Projects of this obligation. TK Projects shall not resist
such application for relief on the basis that TK SPAIN has an adequate remedy at
law, and TK Projects shall waive any requirement for the securing or posting of
any bond in connection with such remedy.
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6. SERVICE FEE
In consideration for TK Projects providing the Services, TK SPAIN shall pay TK
Projects the Fees as determined and by installments as set out in Schedule "B"
to this Agreement.
7. GENERAL RELATIONSHIP BETWEEN THE PARTIES
The relationship between the parties is that of independent contractor. The
parties to this Agreement do not intend, and nothing herein shall be interpreted
so as, to create a partnership, joint venture, employee or agency relationship
between TK Projects and TK SPAIN.
8. INDEMNITY
TK SPAIN shall indemnify and hold harmless TK Projects and its employees and
agents against all actions, proceedings, claims, demands or liabilities which
may be brought against them due to this Agreement including, without limitation,
all actions, proceedings, claims, demands or liabilities brought under the
environmental laws of any jurisdiction, and against and in respect of all costs
and expenses (including legal costs and expenses on a full indemnity basis) they
may suffer or incur due to defending or settling same, provided however that
such indemnity shall exclude any or all losses, actions, proceedings, claims,
demands, costs, damages, expenses and liabilities whatsoever which may be caused
by or due to the gross negligence or willful misconduct of TK Projects or its
employees or agents.
9. TERM AND TERMINATION
This Agreement shall commence as of the date first above written and shall
continue for successive one year terms unless terminated by either party hereto
on not less than sixty (60) days notice. A party may at any time terminate this
Agreement forthwith if:
(a) in the case of TK SPAIN, there is a Change of Control of TK Projects and in
the case of TK Projects, if there is a Change of Control of TK Spain;
(b) the other party breaches this Agreement;
(c) a receiver is appointed for all or substantially all of the property of the
other party;
(d) an order is made to wind-up the other party;
(e) a final judgment, order or decree which materially and adversely affects
the ability of the other party to perform this Agreement shall have been
obtained or entered against that party and such judgment, order or decree
shall not have been vacated, discharged or stayed; or
(f) the other party makes a general assignment for the benefit of its
creditors, files a petition in bankruptcy or for liquidation, is adjudged
insolvent or bankrupt, commences any proceeding for a reorganization or
arrangement of debts, dissolution or liquidation under any law or statute
or of any jurisdiction applicable thereto or if any such proceeding shall
be commenced.
10. FEES UPON TERMINATION
Upon termination of this Agreement, the Fee shall be adjusted as at the
effective date of termination. Any overpayment shall forthwith be refunded to TK
SPAIN and any underpayment shall forthwith be paid to TK Projects.
11. SURRENDER OF BOOKS AND RECORDS
Upon termination of this Agreement, TK Projects shall forthwith surrender to TK
SPAIN any and all books, records, documents and other property in the possession
or control of TK Projects relating to this Agreement and to the business,
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finance, technology, trademarks or affairs of TK SPAIN and any member of the TK
SPAIN Group and, except as required by law, shall not retain any copies of same.
12. FORCE MAJEURE
Neither party shall be liable for any failure to perform this Agreement due to
any cause beyond its reasonable control.
13. ENTIRE AGREEMENT
This Agreement forms the entire agreement between the parties with respect to
the subject matter hereof and supersedes and replaces all previous agreements,
written or oral, with respect to the subject matter hereof.
14. SEVERABILITY
If any provision herein is held to be void or unenforceable, the validity and
enforceability of the remaining provisions herein shall remain unaffected and
enforceable.
15. CURRENCY
Unless stated otherwise, all currency references herein are to United States
Dollars.
16. LAW AND ARBITRATION
This Agreement shall be governed by the laws of The Bahamas. Any dispute under
this Agreement shall be put to arbitration in The Bahamas, a jurisdiction to
which the parties hereby irrevocably submit.
17. NOTICE
Notice under this Agreement shall be given (via hand delivery or facsimile) as
follows:
If to TK SPAIN:
--------------
Xxxxx Xxxxxx xx. 0 - 0xx xxxxx
00000 Xxxxxx, Xxxxx
Attn: Managing Director
Fax: x00 000 000 000
If to TK Projects:
-----------------
Suite 2000
Bentall 5
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XX
X0X 0X0
Attn: Director
----
Fax: +1 000 0 000 000 0000
18. SUBCONTRACTING AND ASSIGNMENT
TK Projects shall not assign, sub-contract or sub-license or assign this
Agreement to any party that is not a subsidiary or affiliate of Teekay Shipping
Corporation except upon written consent of TK SPAIN.
19. WAIVER
The failure of either party to enforce any term of this Agreement shall not act
as a waiver. Any waiver must be specifically stated as such in writing.
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20. AFFILIATES
This Agreement shall be binding upon and inure to the benefit of the affiliates
of TK SPAIN and/or TK Projects.
21. COUNTERPARTS
This Agreement may be executed in one or more signed counterparts, facsimile or
otherwise, which shall together form one instrument.
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SCHEDULE A
SERVICES
TK Projects shall provide such of the following strategic consulting and
advisory services (the "Services") to TK SPAIN, as TK SPAIN may from time to
time reasonably request and direct TK Projects to provide pursuant to Section 2:
(a) strategic planning;
(b) business development opportunities;
(c) integration of any acquired businesses;
(d) client relations; and
(e) any other matters relating to the business of Teekay Spain's liquefied
natural gas business as Teekay Spain may request assistance with, to
the extent TK Projects has knowledge or experience related to such
matters.
TK Projects shall provide quarterly reports to TK Spain outlining the nature and
details of the foregoing services that have been provided.
SCHEDULE B
FEES
In consideration for the provision of services by TK Projects to TK SPAIN, TK
SPAIN shall pay TK Projects an annual Fee for each calendar year during the term
of this Agreement divided into twelve (12) equal monthly installments payable in
advance and which is equal to the annual aggregate amount of such costs and
expenses (the "Costs and Expenses") as TK Projects may reasonably incur in
connection with the provision of the Services plus a reasonable profit xxxx-up
to be agreed upon and reviewed annually by the parties and which shall be
consistent with the Organization for Economic Development's guidelines for
transfer pricing levels as well as local rules and regulations.
In respect of each calendar year during the term of this Agreement, TK Projects
shall prepare an estimate of the Costs and Expenses it reasonably expects to
incur during such year and shall submit such estimate to TK SPAIN within ten
(10) Bahamian banking days of the last day of the immediately preceding year.
The calculation of TK Projects' aforesaid estimated Costs and Expenses may be
adjusted from time to time by agreement between the parties, and the Fee payable
by TK SPAIN shall be re-calculated accordingly.
Within sixty (60) Bahamian banking days (or such longer period as the parties
shall agree) after the end of each year, TK Projects shall submit to TK SPAIN an
accounting of the Costs and Expenses it has incurred in that year (the "actual
Costs and Expenses").
Ten (10) Bahamian banking days (or such longer period as the parties shall
agree) after the date on which TK Projects delivers such accounting of its
actual Costs and Expenses:
(a) where the aggregate of all Fees paid in the relevant year is less than
the agreed xxxx-up of the actual Costs and Expenses, TK SPAIN shall
pay an Adjustment to TK Projects; and
(b) where the aggregate of all Fees paid in the relevant year is greater
than the agreed xxxx-up of the actual Costs and Expenses, TK Projects
shall pay an Adjustment to TK SPAIN.
Where the aggregate of all Fees paid in a year is equal to the agreed xxxx-up of
the actual Costs and Expenses, no Adjustment is payable.
For the purposes hereof "ADJUSTMENT" means a payment (made in accordance with
the foregoing) in the amount of the difference between the aggregate of all Fees
paid in a year and the agreed xxxx-up of the actual Costs and Expenses incurred
in that year.
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