EXHIBIT 10.2
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
THIS CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT, dated as of
__________, 2005, is entered into among Teekay Shipping Corporation, a Xxxxxxxx
Islands corporation ("Teekay"); Teekay GP L.L.C., a Xxxxxxxx Islands limited
liability company ("GP LLC"); Teekay LNG Partners L.P., a Xxxxxxxx Islands
limited partnership (the "MLP"); Teekay LNG Operating L.L.C., a Xxxxxxxx Islands
limited liability company (the "OLLC"); and Teekay Shipping Spain S.L., a
Spanish company ("Teekay Spain"). The foregoing shall be referred to
individually as a "Party" and collectively as the "Parties." Certain capitalized
terms have the meanings assigned to them in Article I hereof.
RECITALS
A. Teekay and GP LLC have formed the MLP pursuant to the Xxxxxxxx Islands
Limited Partnership Act for the purpose of, among other things, acquiring,
owning and operating substantially all the assets of certain subsidiaries of
Teekay used in the business of providing crude oil and liquefied natural gas
("LNG") marine transportation services.
B. To accomplish the objectives and purposes in the preceding recital, the
following actions have been taken prior to the date hereof:
1. Teekay formed GP LLC under the terms of the Xxxxxxxx Islands Limited
Liability Company Act (the "Xxxxxxxx Islands LLC Act") and contributed
$1,000 in exchange for all of the member interests in GP LLC.
2. GP LLC and Teekay formed the MLP, to which GP LLC contributed $20 and
Teekay contributed $980 in exchange for a 2% general partner interest
and 98% limited partner interest, respectively.
3. Each of Teekay Shipping Spain, S.A., Naviera Teekay Gas, S.A., Naviera
Teekay Gas II, S.A., Naviera Teekay Gas III, S.A., Naviera Teekay Gas
IV, S.A. and Teekay Servicos Maritimos, S.A. converted from a Spanish
sociedad anonima to a Spanish sociedad de responsabilidad limitada
named Teekay Spain, Naviera Teekay Gas, S.L. ("Gas I"), Naviera Teekay
Gas II, S.L. ("Gas II"), Naviera Teekay Gas III, S.L. ("Gas III"),
Naviera Teekay Gas IV, S.L. ("Gas IV") and Teekay Servicos Maritimos,
S.L. (collectively, the "Subs").
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
4. Teekay formed the OLLC pursuant to the Xxxxxxxx Islands LLC Act and
contributed $[100] in exchange for all of the member interests in the
OLLC.
C. Shortly before the consummation of the transactions contemplated hereby:
1. Teekay made a $___ million loan to Luxco in exchange for a (a) $__
million note and (b) $___ million note.
2. Teekay Luxembourg S.a.r.l. ("Luxco") invested $__ million in shares of
Teekay Spain, S.L. ("SpainCo"), and Luxco and SpainCo made loans
to the Subs in an aggregate amount of $__ million.
3. The Subs used the funds received as a result of the actions described
in Recital C.2 above, as well as existing cash of $____ million, to
repay debt outstanding of $____ million and make $___ million in swap
cancellation payments.
4. Teekay contributed (a) all of Teekay's interest in Luxco, (b) a note
receivable in the amount of $____ million due to Teekay from Luxco,
and (c) all of Teekay's interest in Granada Spirit L.L.C., a Xxxxxxxx
Islands limited liability company ("Granada"), an indirect, wholly
owned subsidiary of Teekay that owns the Suezmax tanker the Granada
Spirit to the OLLC as a capital contribution and in exchange for a
$___ million note payable.
5. Teekay made a capital contribution to the GP LLC of a member interest
in the OLLC with an aggregate value equal to 2% of the equity value of
the MLP (the "Initial OLLC Interest").
6. The GP LLC contributed the Initial OLLC Interest to the MLP in
exchange for (a) a continued 2% general partner interest in the MLP
and (b) the Incentive Distribution Rights.
7. Teekay contributed to the MLP all of its remaining member interest in
the OLLC (the "Remaining OLLC Interest") in exchange for (a) a
continued 98% limited partner interest in the MLP and (b) a $___
million note payable (the "Note").
8 Each of the Subs, Luxco, SpainCo, Granada, Teekay II Iberia S.L., and
the OLLC filed elections to be disregarded for United States federal
tax purposes.
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9. Teekay Spain and Gas I will enter into an amendment and restatement of
the Existing Credit Facility that will be used for general working
capital purposes and distributions.
D. Concurrently with the consummation of the transactions contemplated
hereby, each of the following matters shall occur:
1. Teekay's limited partner interest in the MLP will be converted to (a)
8,984,572 Common Units, representing a 30.4% limited partner interest
in the MLP, and (b) 14,484,572 Subordinated Units, representing a 49%
limited partner interest in the MLP.
2. The public, through the underwriters of the Offering (the
"Underwriters"), will contribute $115.5 million (the "Offering
Proceeds") in cash to the MLP in exchange for 5,500,000 Common Units
in the MLP.
3. The MLP will use the Offering Proceeds to (a) pay the underwriting
discounts and commissions of $8.1 million, (b) pay other transaction
expenses incurred by the MLP in connection with the Offering of
approximately $3.4 million and (c) repay the Note.
4. The agreements of limited partnership and the limited liability
company agreements of the aforementioned entities will be amended and
restated to the extent necessary to reflect the applicable matters set
forth above and in Article III and Article IV of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the Parties undertake and agree as follows:
ARTICLE I
DEFINITIONS; RECORDATION
1.1 DEFINITIONS. The following capitalized terms have the meanings given
below.
"Acts" shall mean collectively the Xxxxxxxx Islands Limited Partnership Act
and the Xxxxxxxx Islands LLC Act.
"Agreement" means this Contribution, Conveyance and Assumption Agreement.
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"Assets" means the assets, rights and interests contributed and conveyed
(or intended so to be) as reflected in this Agreement.
"Attorney-In-Fact" has the meaning assigned to such term in Section 7.2.
"Bank Credit Facility" has the meaning assigned to such term in Section
2.5.
"Beneficial Owner" has the meaning assigned to such term in Section 8.2.
"Common Units" has the meaning assigned to such term in the Partnership
Agreement.
"Conveyed Assets" has the meaning assigned to such term in Section 7.2.
"Conveying Parties" has the meaning assigned to such term in Section 7.2.
"Effective Date" means _________________, 2005.
"Effective Time" means the time when the transactions contemplated by
Article III hereof have been consummated.
"Existing Credit Facility" means the Agreement dated as of February 22,
2001, by and among Naviera Teekay Gas, S.L., as the borrower, the Banks named
therein, Chase Manhattan International Limited, as agent, and the other parties
thereto.
"Hazardous Substances" has the meaning assigned to such term in the Omnibus
Agreement.
"GP LLC" has the meaning assigned to such term in the first paragraph of
this Agreement.
"Incentive Distribution Rights" has the meaning assigned to such term in
the Partnership Agreement.
"Initial OLLC Interest" has the meaning assigned to such term in Recital
C.5.
"Initial OLLC Liabilities" shall mean all of the liabilities and
obligations of the OLLC relating to the Initial OLLC Interest.
"LNG" has the meaning assigned to such term in Recital A to this Agreement.
"Laws" means any and all laws, statutes, ordinances, rules or regulations
promulgated by a governmental authority, orders of a governmental authority,
judicial decisions, decisions of arbitrators or determinations of any
governmental authority or court.
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"Luxco" has the meaning assigned to such term in Recital C.2 of this
Agreement.
"MLP" has the meaning assigned to such term in the first paragraph of this
Agreement.
"Xxxxxxxx Islands LLC Act" has the meaning assigned to such term in Recital
B.1 of this Agreement.
"Offering" means the initial public offering and transfer of title of
5,500,000 Common Units by the MLP to the public.
"Offering Proceeds" has the meaning assigned to such term in Recital D.2 of
this Agreement.
"OLLC" has the meaning assigned to such term in the first paragraph of this
Agreement.
"Omnibus Agreement" means the Omnibus Agreement dated of even date
herewith, by and among Teekay, GP LLC, the OLLC and the MLP.
"Partnership Agreement" means the First Amended and Restated Agreement of
Limited Partnership of the MLP, as it may be amended from time to time.
"Partnership Group" has the meaning assigned to such term in the Omnibus
Agreement.
"Party and Parties" have the meanings assigned to such terms in the first
paragraph of this Agreement.
"Registration Statement" means the registration statement on Form F-1 (File
No. 333-120727) filed by the MLP relating to the Offering, as it may be amended.
"Remaining OLLC Interest" has the meaning assigned to such term in Recital
C.7 of this Agreement.
"Remaining OLLC Liabilities" means all of the liabilities and obligations
of the OLLC relating to the Remaining OLLC Interest.
"Restriction" has the meaning assigned to such term in Section 8.2.
"Restriction Asset" has the meaning assigned to such term in Section 8.2.
"Specific Conveyances" has the meaning assigned to such term in Section
3.5.
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"Subordinated Units" has the meaning assigned to such term in the
Partnership Agreement.
"Subs" has the meaning assigned to such term in Recital B.3 of this
Agreement.
"Teekay" has the meaning assigned to such term in the first paragraph of
this Agreement.
"Teekay Spain" has the meaning assigned to such term in the first paragraph
of this Agreement.
"Underwriters" has the meaning assigned to such term in Recital D.2 of this
Agreement.
ARTICLE II
THE OFFERING AND RELATED TRANSACTIONS
The Parties acknowledge that each of the following actions is occurring
prior to the completion of the transactions contemplated in Article III hereof.
2.1 CONTRIBUTION BY TEEKAY TO GP LLC OF INITIAL OLLC INTEREST. The Parties
acknowledge Teekay's contribution of the Initial OLLC Interest to GP LLC.
2.2 CONTRIBUTION BY GP LLC TO THE MLP OF THE INITIAL OLLC INTEREST. The
Parties acknowledge GP LLC's contribution of the Initial OLLC Interest to the
MLP prior to the Offering, and GP LLC acknowledges receipt of the following in
exchange for its contribution of the Initial OLLC Interest to the MLP as an
additional contribution to the capital of the MLP: (a) a continuation of its 2%
general partner interest in the MLP and (b) the Incentive Distribution Rights in
the MLP.
2.3 CONTRIBUTION BY TEEKAY TO THE MLP OF THE REMAINING OLLC INTEREST AND
CASH. The Parties acknowledge Teekay's contribution of the Remaining OLLC
Interest to the MLP prior to the Offering, and Teekay acknowledges (a) the
continuation of its 98% limited partner interest in the MLP in exchange for its
contribution to the MLP of the Remaining OLLC Interest and (b) the Note.
2.4 AMENDMENT AND RESTATEMENT OF EXISTING CREDIT FACILITY. Teekay Spain and
Gas I have amended and restated the Existing Credit Facility, pursuant to which
the MLP, the OLLC and certain of the OLLC's subsidiaries shall have a working
capital line of credit (such amended and restated credit facility, and any
extension, renewal or refinancing thereof, being the "Bank Credit Facility").
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ARTICLE III
CONCURRENT TRANSACTIONS
The Parties acknowledge that each of the following actions is occurring
concurrently with the closing of the Offering and the completion of the actions
set forth in Article II above.
3.1 CONVERSION OF TEEKAY'S LIMITED PARTNER INTEREST. The MLP hereby
converts Teekay's limited partner interest in the MLP into (a) 8,984,572 Common
Units, representing a 30.4% limited partner interest in the MLP, and (b)
14,484,572 Subordinated Units, representing a 49% limited partner interest in
the MLP.
3.2 MLP RECEIPT OF CASH CONTRIBUTION. In exchange for the MLP's issuance of
5,500,000 Common Units, the MLP acknowledges receipt of the Offering Proceeds in
cash as a capital contribution to the MLP, and the Parties acknowledge that the
MLP has used all of such capital contribution to (a) pay the Underwriters'
discounts and commissions of $8.1 million (which may be withheld by the
Underwriters from the Offering Proceeds as payment thereof), (b) pay other
Offering expenses incurred by the MLP of approximately $3.4 million and (c)
repay the Note.
3.3 SPECIFIC CONVEYANCES. To further evidence the contributions of the
Assets reflected in this Agreement, each party making such contribution may have
executed and delivered to the party receiving such contribution certain
conveyance, assignment and xxxx of sale instruments (the "Specific
Conveyances"). The Specific Conveyances shall evidence and perfect such sale and
contribution made by this Agreement and shall not constitute a second conveyance
of any assets or interests therein and shall be subject to the terms of this
Agreement.
ARTICLE IV
ASSUMPTION OF CERTAIN LIABILITIES
4.1 ASSUMPTION OF INITIAL OLLC LIABILITIES BY GP LLC. In connection with
the contribution by Teekay of the Initial OLLC Interest to GP LLC, as described
in Section 2.1 above, GP LLC hereby assumes and agrees to duly and timely pay,
perform and discharge all of the Initial OLLC Liabilities, to the full extent
that Teekay has been heretofore or would have been in the future obligated to
pay, perform and discharge the Initial OLLC Liabilities were it not for the
execution and delivery of this Agreement; provided, however, that such
assumption and agreement to duly and timely pay, perform and discharge the
Initial OLLC Liabilities shall not (a) increase the obligation of GP LLC with
respect to the Initial OLLC Liabilities beyond that of Teekay, (b) waive any
valid defense that was available to Teekay with respect to the Initial OLLC
Liabilities or (c) enlarge any rights or remedies of any third party under or
with respect to any of the Initial OLLC Liabilities.
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4.2 ASSUMPTION OF INITIAL OLLC LIABILITIES BY THE MLP. In connection with
the contribution by GP LLC to the MLP of the Initial OLLC Interest as described
in Section 2.2 above, the MLP hereby assumes and agrees to duly and timely pay,
perform and discharge all of the Initial OLLC Liabilities, to the full extent
that GP LLC has been heretofore or would have been in the future obligated to
pay, perform and discharge such obligations and liabilities were it not for the
execution and delivery of this Agreement; provided, however, that such
assumption and agreement to duly and timely pay, perform and discharge the
Initial OLLC Liabilities shall not (a) increase the obligation of the MLP with
respect to the Initial OLLC Liabilities beyond that of GP LLC, (b) waive any
valid defense that was available to GP LLC with respect to the Initial OLLC
Liabilities or (c) enlarge any rights or remedies of any third party under or
with respect to any of the Initial OLLC Liabilities.
4.3 ASSUMPTION OF REMAINING OLLC LIABILITIES BY THE MLP. In connection with
the contribution by Teekay to the MLP of the Remaining OLLC Interest as
described in Section 2.3 above, the MLP hereby assumes and agrees to duly and
timely pay, perform and discharge all of the Remaining OLLC Liabilities, to the
full extent that Teekay has been heretofore or would have been in the future
obligated to pay, perform and discharge such obligations and liabilities were it
not for the execution and delivery of this Agreement; provided, however, that
such assumption and agreement to duly and timely pay, perform and discharge the
Remaining OLLC Liabilities shall not (a) increase the obligation of the MLP with
respect to the Remaining OLLC Liabilities beyond that of Teekay, (b) waive any
valid defense that was available to Teekay with respect to the Remaining OLLC
Liabilities or (c) enlarge any rights or remedies of any third party under or
with respect to any of the Remaining OLLC Liabilities.
4.4 GENERAL PROVISIONS RELATING TO ASSUMPTION OF LIABILITIES.
Notwithstanding anything to the contrary contained in this Agreement, including,
without limitation, the terms and provisions of this Article IV, none of the
Parties shall be deemed to have assumed, and none of the Assets have been or are
being contributed subject to, [(a) any liens or security interests securing
consensual indebtedness covering any of the Assets, except for liens and
security interests securing borrowings under the Existing Credit Facility, the
Bank Credit Facility and all such liens and security interests disclosed in the
Registration Statement or normally associated with oil and LNG shipping vessels,
and all such liens and security interests (except such liens set forth above)
shall be deemed to be excluded from the assumptions of liabilities made under
this Article IV or (b) ]any of the liabilities covered by the indemnities set
forth in the Omnibus Agreement to the extent such liabilities are covered by
such indemnities, and all such liabilities shall be deemed to be excluded from
the assumptions of liabilities made under this Article IV to the extent that
such liabilities are covered by such indemnities.
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ARTICLE V
ADDITIONAL TRANSACTION
5.1 EXERCISE OF THE OVER-ALLOTMENT OPTION. The Parties acknowledge that in
the event the Underwriters exercise their over-allotment option, the MLP shall
contribute to the OLLC any net proceeds therefrom for debt repayment by the
OLLC.
ARTICLE VI
TITLE MATTERS
6.1 ENCUMBRANCES.
(a) Except to the extent provided in Article IV or any other document
executed in connection with this Agreement or the Offering, including, without
limitation, the Omnibus Agreement, the contribution and conveyance (by operation
of law or otherwise) of the various Assets are made expressly subject to all
recorded encumbrances, agreements, defects, restrictions, and adverse claims
covering the respective Assets and all Laws of governmental authorities or
tribunals having or asserting jurisdiction over the Assets and operations
conducted thereon or therewith, in each case to the extent the same are valid
and enforceable and affect the Assets, including, without limitation, (i) all
matters that a visual inspection of the Assets would reflect, (ii) the
applicable liabilities assumed in Article IV, and (iii) all matters contained in
the Specific Conveyances.
(b) To the extent that certain jurisdictions in which the Assets are
located or deemed to be located may require that documents be recorded in order
to evidence the transfers of title reflected in this Agreement, then the
provisions set forth in Section 6.1(a) immediately above shall also be
applicable to the conveyances under such documents.
6.2 DISCLAIMER OF WARRANTIES; SUBROGATION; WAIVER OF BULK SALES LAWS.
(a) EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING, INCLUDING, WITHOUT
LIMITATION, THE OMNIBUS AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE THAT NONE
OF THE PARTIES HAS MADE, DOES NOT MAKE, AND EACH SUCH PARTY SPECIFICALLY NEGATES
AND DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS, IMPLIED OR
STATUTORY, ORAL OR WRITTEN, PAST OR PRESENT, REGARDING (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE ASSETS, INCLUDING, WITHOUT
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LIMITATION, THE ENVIRONMENTAL CONDITION OF THE ASSETS GENERALLY, INCLUDING,
WITHOUT LIMITATION, THE PRESENCE OR LACK OF HAZARDOUS SUBSTANCES OR OTHER
MATTERS ON THE ASSETS, (B) THE INCOME TO BE DERIVED FROM THE ASSETS, (C) THE
SUITABILITY OF THE ASSETS FOR ANY AND ALL ACTIVITIES AND USES THAT MAY BE
CONDUCTED THEREON OR THEREWITH, (D) THE COMPLIANCE OF OR BY THE ASSETS OR THEIR
OPERATION WITH ANY LAWS (INCLUDING WITHOUT LIMITATION ANY ZONING, ENVIRONMENTAL
PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR
REQUIREMENTS), OR (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE ASSETS. EXCEPT TO THE
EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH
THIS AGREEMENT OR THE OFFERING INCLUDING, WITHOUT LIMITATION, THE OMNIBUS
AGREEMENT, EACH PARTY ACKNOWLEDGES AND AGREES THAT SUCH PARTY HAS HAD THE
OPPORTUNITY TO INSPECT THE RESPECTIVE ASSETS, AND SUCH PARTY IS RELYING SOLELY
ON ITS OWN INVESTIGATION OF THE RESPECTIVE ASSETS AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY ANY OF THE OTHER PARTIES. EXCEPT TO THE EXTENT
PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS
AGREEMENT OR THE OFFERING, INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT,
NONE OF THE PARTIES IS LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE ASSETS FURNISHED BY
ANY AGENT, EMPLOYEE, SERVANT OR THIRD PARTY. EXCEPT TO THE EXTENT PROVIDED IN
ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR
THE OFFERING, INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT, EACH OF THE
PARTIES ACKNOWLEDGES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
CONTRIBUTION OF THE ASSETS AS PROVIDED FOR HEREIN IS MADE IN AN "AS IS," "WHERE
IS" CONDITION WITH ALL FAULTS, AND THE ASSETS ARE CONTRIBUTED AND CONVEYED
SUBJECT TO ALL OF THE MATTERS CONTAINED IN THIS SECTION. THIS SECTION SHALL
SURVIVE SUCH CONTRIBUTION AND CONVEYANCE OR THE TERMINATION OF THIS AGREEMENT.
THE PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED BY THE PARTIES AFTER DUE
CONSIDERATION AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY
REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH
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RESPECT TO THE ASSETS THAT MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER IN
EFFECT, OR OTHERWISE, EXCEPT AS SET FORTH IN THIS AGREEMENT OR ANY OTHER
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE
OFFERING, INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT.
(b) To the extent that certain jurisdictions in which the Assets are
located or deemed to be located may require that documents be recorded in order
to evidence the transfers of title reflected in this Agreement, then the
disclaimers set forth in Section 6.2(a) immediately above shall also be
applicable to the conveyances under such documents.
(c) The contributions of the Assets made under this Agreement are made with
full rights of substitution and subrogation of the respective Parties receiving
such contributions, and all persons claiming by, through and under such Parties,
to the extent assignable, in and to all covenants and warranties by the
predecessors-in-title of the Parties contributing the Assets, and with full
subrogation of all rights accruing under applicable statutes of limitation and
all rights of action of warranty against all former owners of the Assets.
(d) Each of the Parties agrees that the disclaimers contained in this
Section 6.2 are "conspicuous" disclaimers. Any covenants implied by Law by the
use of the words "grant," "convey," "bargain," "sell," "assign," "transfer,"
"deliver," or "set over" or any of them, or any other words used in this
Agreement or any exhibits hereto, are hereby expressly disclaimed, waived and
negated.
(e) Each of the Parties hereby waives compliance with any applicable bulk
sales law or any similar law in any applicable jurisdiction in respect of the
transactions contemplated by this Agreement.
ARTICLE VII
FURTHER ASSURANCES
7.1 FURTHER ASSURANCES. From time to time after the date hereof, and
without any further consideration, the Parties agree to execute, acknowledge and
deliver all such additional deeds, assignments, bills of sale, conveyances,
instruments, notices, releases, acquittances and other documents, and will do
all such other acts and things, all in accordance with applicable Law, as may be
necessary or appropriate (a) more fully to assure that the applicable Parties
own all of the properties, rights, titles, interests, estates, remedies, powers
and privileges granted by this Agreement, or which are intended to be so
granted, (b) more fully and effectively to vest in the applicable Parties and
their respective successors and assigns beneficial and record
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title to the interests contributed and assigned by this Agreement or intended so
to be and (c) to more fully and effectively carry out the purposes and intent of
this Agreement.
7.2 POWER OF ATTORNEY. Each Party that has conveyed any Assets (the
"Conveyed Assets") as reflected by this Agreement (collectively, the "Conveying
Parties") hereby constitutes and appoints GP LLC (the "Attorney-in-Fact") its
true and lawful attorney-in-fact with full power of substitution for it and in
its name, place and stead or otherwise on behalf of the applicable Conveying
Party and its successors and assigns, and for the benefit of the
Attorney-in-Fact to demand and receive from time to time the Conveyed Assets
contributed and conveyed by this Agreement (or intended so to be) and to execute
in the name of the applicable Conveying Party and its successors and assigns
instruments of conveyance, instruments of further assurance and to give receipts
and releases in respect of the same, and from time to time to institute and
prosecute in the name of the applicable Conveying Party for the benefit of the
Attorney-in-Fact, any and all proceedings at law, in equity or otherwise which
the Attorney-in-Fact may deem proper in order to (a) collect, assert or enforce
any claims, rights or titles of any kind in and to the Conveyed Assets, (b)
defend and compromise any and all actions, suits or proceedings in respect of
any of the Conveyed Assets, and (c) do any and all such acts and things in
furtherance of this Agreement as the Attorney-in-Fact shall deem advisable. Each
Conveying Party hereby declares that the appointment hereby made and the powers
hereby granted are coupled with an interest and are and shall be irrevocable and
perpetual and shall not be terminated by any act of any Conveying Party or its
successors or assigns or by operation of law.
7.3 OTHER ASSURANCES. From time to time after the date hereof, and without
any further consideration, each of the Parties shall execute, acknowledge and
deliver all such additional instruments, notices and other documents, and will
do all such other acts and things, all in accordance with applicable Law, as may
be necessary or appropriate to more fully and effectively carry out the purposes
and intent of this Agreement. It is the express intent of the Parties that the
MLP or its subsidiaries own all assets necessary to operate the Assets that are
identified in this Agreement and in the Registration Statement. To the extent
any assets were not identified but are necessary to the operation of such Assets
that were identified, then the intent of the Parties is that all such
unidentified assets are intended to be conveyed to the appropriate members of
the Partnership Group. To the extent such assets are identified at a later date,
the Parties shall take the appropriate actions required in order to convey all
such assets to the appropriate members of the Partnership Group. Likewise, to
the extent that assets are identified at a later date that were not intended by
the parties to be conveyed as reflected in this Agreement or the Registration
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Statement, the Parties shall take the appropriate actions required in order to
convey all such assets to the appropriate party.
ARTICLE VIII
MISCELLANEOUS
8.1 ORDER OF COMPLETION OF TRANSACTIONS. The transactions provided for in
Articles II, III, IV and V of this Agreement shall be completed [on] the
Effective Date in the following order:
First, the transactions provided for in Articles II and IV shall be
completed in the order set forth therein;
Second, the transactions provided for in Article III shall be completed in
the order set forth therein; and
Fourth, the transactions provided for in Article V shall be completed in
the order set forth therein.
8.2 CONSENTS; RESTRICTION ON ASSIGNMENT. If there are prohibitions against
or conditions to the contribution and conveyance of one or more of the Assets
without the prior written consent of third parties, including, without
limitation, governmental agencies (other than consents of a ministerial nature
which are normally granted in the ordinary course of business), which if not
satisfied would result in a breach of such prohibitions or conditions or would
give an outside party the right to terminate rights of the Party to whom the
applicable Assets were intended to be conveyed (the "Beneficial Owner") with
respect to such portion of the Assets (herein called a "Restriction"), then any
provision contained in this Agreement to the contrary notwithstanding, the
transfer of title to or interest in each such portion of the Assets (herein
called the "Restriction Asset") pursuant to this Agreement shall not become
effective unless and until such Restriction is satisfied, waived or no longer
applies. When and if such a Restriction is so satisfied, waived or no longer
applies, to the extent permitted by applicable Law and any applicable
contractual provisions, the assignment of the Restriction Asset subject thereto
shall become effective automatically as of the Effective Time (in the
appropriate order indicated by Section 8.1), without further action on the part
of any Party. Each of the applicable Parties that were involved with the
conveyance of a Restriction Asset agree to use commercially reasonable efforts
to obtain on a timely basis satisfaction of any Restriction applicable to any
Restriction Asset conveyed by or acquired by any of them. The description of any
portion of the Assets as a "Restriction Asset" shall not be construed as an
admission that any Restriction exists with respect to the transfer of such
portion of the Assets. In the event that any Restriction Asset exists, the
applicable Party agrees to continue to hold such Restriction Asset in trust for
the
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
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exclusive benefit of the applicable Party to whom such Restriction Asset was
intended to be conveyed and to otherwise use commercially reasonable efforts to
provide such other Party with the benefits thereof, and the party holding such
Restriction Asset will enter into other agreements, or take such other action as
it may deem necessary, in order to ensure that the applicable Party to whom such
Restriction Asset was intended to be conveyed has the assets and concomitant
rights necessary to enable the applicable Party to operate such Restriction
Asset in all material respects as it was operated prior to the Effective Time.
Furthermore, in such event the applicable Party to whom such Restriction Asset
was intended to be conveyed agrees to assume such liabilities and perform such
obligations relating to such Restriction Asset as if it had been conveyed at the
Effective Time.
8.3 COSTS. The MLP shall pay any and all sales, use and similar taxes
arising out of the contributions, conveyances and deliveries to be made
hereunder, and shall pay all documentary, filing, recording, transfer, deed, and
conveyance taxes and fees required in connection therewith. In addition, the MLP
shall be responsible for all costs, liabilities and expenses (including, without
limitation, court costs and reasonable attorneys' fees) incurred in connection
with the satisfaction or waiver of any Restriction pursuant to Section 8.2 to
the extent such Restriction was disclosed to the MLP on or before the Effective
Date.
8.4 HEADINGS; REFERENCES; INTERPRETATION. All Article and Section headings
in this Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any of the provisions hereof. The words
"hereof," "herein" and "hereunder" and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. All references herein to Articles and
Sections shall, unless the context requires a different construction, be deemed
to be references to the Articles and Sections of this Agreement, respectively.
All personal pronouns used in this Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders, and the singular
shall include the plural and vice versa. The use herein of the word "including"
following any general statement, term or matter shall not be construed to limit
such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
non-limiting language (such as "without limitation," "but not limited to," or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that could reasonably fall within
the broadest possible scope of such general statement, term or matter.
8.5 SUCCESSORS AND ASSIGNS. The Agreement shall be binding upon and inure
to the benefit of the Parties and their respective successors and assigns.
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
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8.6 NO THIRD PARTY RIGHTS. The provisions of this Agreement are intended to
bind the Parties as to each other and are not intended to and do not create
rights in any other person or confer upon any other person any benefits, rights
or remedies and no person is or is intended to be a third party beneficiary of
any of the provisions of this Agreement.
8.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
8.8 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the [Republic of the Xxxxxxxx Islands] applicable
to contracts made and to be performed wholly within such jurisdiction without
giving effect to conflict of law principles thereof, except to the extent that
it is mandatory that the law of some other jurisdiction, wherein the Assets are
located, shall apply.
8.9 SEVERABILITY. If any of the provisions of this Agreement are held by
any court of competent jurisdiction to contravene, or to be invalid under, the
laws of any governmental body having jurisdiction over the subject matter
hereof, such contravention or invalidity shall not invalidate the entire
Agreement. Instead, this Agreement shall be construed as if it did not contain
the particular provision or provisions held to be invalid, and an equitable
adjustment shall be made and necessary provision added so as to give effect, as
nearly as possible, to the intention of the Parties as expressed in this
Agreement at the time of execution of this Agreement.
8.10 DEED; XXXX OF SALE; ASSIGNMENT. To the extent required and permitted
by applicable Law, this Agreement shall also constitute a "deed," "xxxx of sale"
or "assignment" of the Assets.
8.11 AMENDMENT OR MODIFICATION. This Agreement may be amended or modified
from time to time only by the written agreement of all the Parties hereto.
8.12 INTEGRATION. This Agreement and the instruments referenced herein
supersede all previous understandings or agreements among the Parties, whether
oral or written, with respect to its subject matter hereof. This Agreement and
such instruments contain the entire understanding of the Parties with respect to
the subject matter hereof and thereof. No understanding, representation, promise
or agreement, whether oral or written, is intended to be or shall be included in
or form part of this Agreement unless it is contained in a written amendment
hereto executed by the Parties hereto after the date of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first above written.
TEEKAY SHIPPING CORPORATION, a
Xxxxxxxx Islands corporation
By:
-----------------------------------------
Name:
Title:
"Teekay"
TEEKAY GP L.L.C., a Xxxxxxxx Islands
limited liability company
By:
-----------------------------------------
Name:
Title:
"GP LLC"
TEEKAY LNG PARTNERS L.P., a
Xxxxxxxx Islands limited partnership
By:
-----------------------------------------
Name:
Title:
"MLP"
TEEKAY LNG OPERATING L.L.C., a
Xxxxxxxx Islands limited liability company
By:
-----------------------------------------
Name:
Title:
"OLLC"
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
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TEEKAY SHIPPING SPAIN S.L., a
Spanish company
By:
-----------------------------------------
Name:
Title:
"Teekay Spain"
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
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