A bond agreement is a legal contract between an issuer and the holder of a bond. The issuer agrees to repay the principal, usually at maturity, plus interest on time at a specified rate.
Bonds are issued by governments or corporations in order to raise capital for projects that they need funding for. If you're thinking about investing in bonds it's important that you fully understand what your rights are as an investor, which are outlined in the bond agreement, before you commit any money into this type of investment.
Below is a list of common sections included in Bond Agreements. These sections are linked to the below sample agreement for you to explore.
ISIN NO 001 064325.7
Teekay LNG Partners L.P.
Norsk Tillitsmann ASA
in the bond issue
FRN Teekay LNG Partners L.P.
Senior Unsecured Bond Issue 2012/2017
Norsk Tillitsmann ASA
TABLE OF CONTENTS
4 Registration in a Securities Register
5 Purchase and transfer of Bonds
6 Conditions precedent
7 Representations and Warranties
8 Status of the Bonds and security
10 Maturity of the Bonds and Change of Control
12 Issuer’s acquisition of Bonds
14 Fees and expenses
15 Events of Default
16 Bondholders’ meeting
17 The Bond Trustee
Norsk Tillitsmann ASA
This bond agreement has been entered into on 30 April 2012 between
| (1) | Teekay LNG Partners L.P. (a limited partnership organized in the Marshall Islands with Company No. 950008), as issuer (the “Issuer” ), and |
| (2) | Norsk Tillitsmann ASA (a company incorporated in Norway with Company No. 963 342 624), as bond trustee (the “Bond Trustee” ). |
| 1 | Interpretation |
| 1.1 | Definitions |
In this Bond Agreement the following terms shall have the following meanings (certain terms relevant for Clause 18.2 and other Clauses may be defined in the relevant Clause):
“Account Manager” means a Bondholder’s account manager in the Securities Register.
“Attachment” means any attachments to this Bond Agreement.
“Bond Agreement” means this bond agreement, including any Attachments to which it refers, and any subsequent amendments and additions agreed between the Parties.
“Bond Issue” means the bond issue constituted by the Bonds.
“Bond Reference Rate” means 3 months NIBOR.
“Bondholder” means a holder of Bond(s), as registered in the Securities Register, from time to time.
“Bondholders’ Meeting” means a meeting of Bondholders, as set forth in Clause 16.
“Bonds” means the securities issued by the Issuer pursuant to this Bond Agreement, representing the Bondholders’ underlying claim on the Issuer.
“Business Day” means any day on which Norwegian commercial banks are open for general business, and when Norwegian banks can settle foreign currency transactions, being any day on which the Norwegian Central Bank’s Settlement System is open.
“Business Day Convention” means that if the relevant Interest Payment Date falls on a day that is not a Business Day, that date will be the first following day that is a Business Day unless that day falls in the next calendar month, in which case that date will be the first preceding day that is a Business Day (Modified Following Business Day Convention).
Norsk Tillitsmann ASA
“Change of Control Event” means an event where Teekay Corporation (a company incorporated in the Marshall Islands with Company No. 3521) ceases to hold, directly or indirectly, a minimum of 51% of the ownership and voting rights of the General Partner.
“Default” means an Event of Default or any event or circumstance specified in Clause 15.1 (Events of Default) which would (with the giving of notice, lapse of time, determination of materiality or the fulfillment of any other applicable condition or any combination of the foregoing) be an Event of Default under any Finance Document.
“Encumbrance” means any encumbrance, mortgage, pledge, lien, charge (whether fixed or floating), assignment by way of security, finance lease, sale and repurchase or sale and leaseback arrangement, sale of receivables on a recourse basis or security interest or any other agreement or arrangement having the effect of conferring security.
“Equity” means the aggregate of the amount paid up on the issued share capital of the Issuer and the amount standing to the credit of its capital and revenue reserves (including any share premium account or capital redemption reserve but excluding any revaluation reserve), plus or minus the amount standing to the credit or debit (as the case may be) of its profit and loss account.
“Event of Default” means the occurrence of an event or circumstance specified in Clause 15.1.
“Exchange” means securities exchange or other reputable marketplace for securities, on which the Bonds are listed, or where the Issuer has applied for listing of the Bonds.
“Finance Documents” means (i) this Bond Agreement, (ii) the agreement between the Bond Trustee and the Issuer referred to in Clause 14.2, and (iii) any other document (whether creating a security interest or not) which is executed at any time by the Issuer in relation to any amount payable under this Bond Agreement.
“Financial Indebtedness” means, without double counting, any indebtedness incurred in respect of:
| (a) | moneys borrowed, including acceptance credit; |
| (b) | any bond, note, debenture, loan stock or other similar instrument; |
| (c) | the amount of any liability in respect of any lease, hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease (excluding any amounts applicable to leases to the extent that such lease obligations are fully secured by a security deposit which is held on the balance sheet under “restricted cash”); |
| (d) | receivables sold or discounted (other than any receivables sold on a non-recourse basis); |
| (e) | any sale and lease-back transaction, or similar transaction which is treated as indebtedness under GAAP; |
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| (f) | the acquisition cost of any asset to the extent payable after its acquisition or possession by the party liable where the deferred payment is arranged primarily as a method of raising finance or financing the acquisition of that asset; |
| (g) | any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price, including without limitation currency or interest rate swaps, caps or collar transactions (and, when calculating the value of the transaction, only the mark-to-market value of the applicable derivative shall be taken into account); |
| (h) | any amounts raised under any other transactions having the commercial effect of a borrowing or raising of money, whether recorded in the balance sheet or not (including any forward sale of purchase agreement); |
| (i) | any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institutions; and |
| (j) | any guarantee, indemnity or similar assurance against financial loss of any person in respect of any of the items referred to in( a) through (i) above. |
“Financial Statements” means the audited consolidated and unconsolidated annual accounts and financial statements of the Issuer for any financial year, prepared in accordance with GAAP, such accounts to include a profit and loss account, balance sheet and cash flow statement.
“Free and Available Cash” means, at any time, cash, cash equivalents and marketable securities (with investment grade rating from S&P and/or Moody’s Investors Service) of maturities less than one (1) year, to which the Group shall have free, immediate and direct access each as reflected in the Issuer’s most recent quarterly or annual consolidated financial statements. For the avoidance of doubt, Free and Available Cash shall not be subject to any Encumbrance.
“Free Liquidity” means the sum of Free and Available Cash plus Undrawn Revolving Credit Lines.
“GAAP” means the generally accepted accounting principles in the United States of America, in force from time to time.
“General Partner” or “GP” means Teekay GP L.L.C., a Marshall Islands limited liability company with Company No. 960578, which is the general partner of the Issuer, which is a limited partnership formed under the Marshall Islands Limited Partnership Act and governed by a limited partnership agreement. Under such Act and partnership agreement, the General Partner manages the operations and activities of the Issuer. For the avoidance of doubt, the General Partner shall at all times during the tenor of the Bonds maintain its interests as general partner of the Issuer.
“Group” means the Issuer and its Subsidiaries from time to time, and a “Group Company” means the Issuer or any of its Subsidiaries.
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“Interest Payment Date” means 3 February, 3 May, 3 August and 3 November each year and the Maturity Date. Any adjustment will be made according to the Business Day Convention.
“ISIN” means International Securities Identification Numbering system—the identification number of the Bonds.
“Issue Date” means 3 May 2012.
“Issuer’s Bonds” means Bonds owned by the Issuer, any party or parties who has decisive influence over the Issuer, or any party or parties over whom the Issuer has decisive influence.
“Manager” means the manager for the Bond Issue.
“Margin” means 5.25 percentage points per annum.
“Material Adverse Effect” means a material adverse effect on: (a) the business, financial condition or operations of the Issuer and/or the Group taken as a whole, (b) the Issuer’s ability to perform and comply with its obligations under the Bond Agreement; or (c) the validity or enforceability of the Bond Agreement.
“Material Subsidiary” means:
| (i) | any Subsidiary whose total consolidated assets represent at least 10 % of the total consolidated assets of the Group, or |
| (ii) | any Subsidiary whose total consolidated revenues represent at least 10 % of the total consolidated net sales of the Group. |
“Maturity Date” means 3 May 2017 or an earlier maturity date as provided for in this Bond Agreement. Any further adjustment may be made according to the Business Day Convention.
“Net Debt” means Total Debt less Free and Available Cash.
“Net Debt Ratio” means a fraction where the numerator is an amount equal to Net Debt and the denominator is an amount equal to the sum of Net Debt plus Equity.
“NIBOR” means that the rate for an interest period will be the rate for deposits in Norwegian Kroner for a period as defined under Bond Reference Rate which appears on the Reuters Screen NIBR Page as of 12.00 noon, Oslo time, on the day that is two Business Days preceding that Interest Payment Date. If such rate does not appear on the Reuters Screen NIBR Page, the rate for that Interest Payment Date will be determined as if the Bond Reference Rate is 3 months NIBOR Reference Rate as the applicable floating rate option.
Norsk Tillitsmann ASA
“NIBOR Reference Rate” means that the rate for an interest period will be determined on the basis of the rates at which deposits in Norwegian Kroner are offered by four large authorised exchange banks in the Oslo market (the “Reference Banks”) at approximately 12.00 noon, Oslo time, on the day that is two Business Days preceding that Interest Payment Date to prime banks in the Oslo interbank market for a period as defined under Bond Reference Rate commencing on that Interest Payment Date and in a representative amount. The Bond Trustee will request the principal Oslo office of each Reference Bank to provide a quotation of its rate. If at least two such quotations are provided, the rate for that Interest Payment Date shall be the arithmetic mean of the quotations. If fewer than two quotations are provided as requested, the rate for that Interest Payment Date will be the arithmetic mean of the rates quoted by major banks in Oslo, selected by the Bond Trustee, at approximately 12.00 noon, Oslo time, on that Interest Payment Date for loans in Norwegian Kroner to leading European banks for a period as defined under Bond Reference Rate commencing on that Interest Payment Date and in a representative amount.
“NOK” means Norwegian kroner, being the lawful currency of Norway.
“Outstanding Bonds” means the aggregate principal amount of the total number of Bonds not redeemed or otherwise discharged.
“Party” means a party to this Bond Agreement (including its successors and permitted transferees).
“Paying Agent” means any legal entity as appointed by the Issuer and approved by the Bond Trustee who acts as paying agent on behalf of the Issuer with respect to the Bonds.
“Payment Date” means a date for payment of principal or interest on the Bonds.
“Quarter Date” means each 31 March, 30 June, 30 September and 31 December.
“Quarterly Financial Reports” means the unaudited consolidated and unconsolidated financial statements of the Issuer as of each Quarter Date, prepared in accordance with GAAP, such accounts to include a profit and loss account, balance sheet and cash flow statement.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A under the US Securities Act.
“Securities Register” means the securities register in which the Bond Issue is registered.
“Securities Register Act” means the Norwegian Act relating to Registration of Financial Instruments of 5 July 2002 No. 64.
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“Subsidiary” means an entity over which another entity or person has a determining influence due to (i) direct and indirect ownership of shares or other ownership interests, (ii) control of the general partner of any such other entity that is a limited partnership and/or (iii) agreement, understanding or other arrangement. An entity shall always be considered to be the subsidiary of another entity or person if such entity or person has such number of shares or ownership interests so as to represent the majority of the votes in the entity, or has the right to elect or dismiss a majority of the directors in the entity.
“Taxes” means all present and future taxes, levies, imposts, duties, charges, fees, deductions and withholdings, and any restrictions and or conditions resulting in a charge together with interest thereon and penalties in respect thereof and “Tax” and “Taxation” shall be construed accordingly.
“Tangible Net Worth” means A plus B less C,
“A” means the issued and paid up share capital of the Issuer (including share premium or items of a similar nature (but excluding shares which are expressed to be redeemable)), loans from shareholders (where subordinated to the satisfaction of the Trustee), and amounts standing to the credit of the capital reserves of the Issuer; and
“B” means any credit balance carried forward on the Issuer’s consolidated profit and loss account; and
“C” means the aggregate of:
| (i) | any debit balance carried forward on the Issuer’s consolidated profit and loss account; |
| (ii) | any amount shown for goodwill, including on consolidation, or any other intangible property on the Issuer’s consolidated balance sheet(other than intangible property relating to contracts as shown in the balance sheet of the Issuer); and |
| (iii) | any amount attributable to minority interests in Subsidiaries on the Issuer’s consolidated balance sheet. |
“Total Debt” means, at any time, on a consolidated basis of the Group, the aggregate of:
| (i) | the amount calculated in accordance with GAAP shown as each of “long term debt”, “short term debt” and “current portion of long term debt” on the latest consolidated balance sheet of the Issuer; and |
| (ii) | the amount of any liability in respect of any lease or hire purchase contract entered into by the Issuer or any of its Subsidiaries which would, in accordance with GAAP, be treated as a finance or capital lease (excluding any amounts applicable to leases to the extent that the lease obligations are secured by a security deposit which is held on the balance sheet under “restricted cash”). |
“Undrawn Revolving Credit Lines” means undrawn committed revolving credit lines freely available to the Issuer and/or its Subsidiaries (excluding undrawn committed revolving credit lines with less than 6 months to maturity) as verified by the Chief Financial Officer of the Issuer in connection with delivery of a compliance certificate in accordance with Clause 13.2.3.
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“ US Person” has the meaning ascribed to such term in Regulation S under the US Securities Act.
“US Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“USD” means US Dollars, being the legal currency of the United States of America.
“Voting Bonds” means the Outstanding Bonds less the Issuer’s Bonds.
| 1.2 | Construction |
In this Bond Agreement, unless the context otherwise requires:
| (a) | headings are for ease of reference only; |
| (b) | words denoting the singular number shall include the plural and vice versa; |
| (c) | references to Clauses are references to the Clauses of this Bond Agreement; |
| (d) | references to a time is a reference to Oslo time unless otherwise stated herein; |
| (e) | references to a provision of law is a reference to that provision as it may be amended or re-enacted, and to any regulations made by the appropriate authority pursuant to such law, including any determinations, rulings, judgments and other binding decisions relating to such provision or regulation; |
| (f) | references to “control” means the power to appoint a majority of the board of directors of the entity or to direct the management and policies of an entity, whether through the ownership of voting capital, by contract or otherwise; and |
| (h) | references to a “person” shall include any individual, firm, partnership, joint venture, company, corporation, trust, fund, body corporate, unincorporated body of persons, or any state or any agency of a state or association (whether or not having separate legal personality). |
| 2 | The Bonds |
| 2.1 | Binding nature of the Bond Agreement |
| 2.1.1 | The Bondholders are, through their subscription, purchase or other transfer of Bonds bound by the terms of the Bond Agreement and other Finance Documents, and grant authority to the Bond Trustee to finalize and execute the Bond Agreement on the Bondholders behalf as set out in the subscription documents, term sheet, sales documents or in any other way, and all Bond transfers are subject to the terms of this Bond Agreement and all Bond transferees are, in taking transfer of Bonds, deemed to have accepted the terms of the Bond Agreement and the other Finance Documents and will automatically become parties to the Bond Agreement upon the completed transfer having been registered, without any further action required to be taken or formalities to be complied with, see also Clause 18.1. |
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| 2.1.2 | The Bond Agreement is available to anyone and may be obtained from the Bond Trustee or the Issuer. The Issuer shall ensure that the Bond Agreement is available to the general public throughout the entire term of the Bonds. |
| 2.2 | The Bonds |
| 2.2.1 | The Issuer has resolved to issue a series of Bonds in the maximum amount of NOK 700,000,000 (Norwegian kroner seven hundred million). |
The Bonds will be in denominations of NOK 500,000 each and rank pari passu between themselves.
The Bond Issue will be described as “FRN Teekay LNG Partners L.P. Senior Unsecured Bond Issue 2012/2017”.
The International Securities Identification Number (ISIN) of the Bond Issue will be NO 001 0643257.
The tenor of the Bonds is from and including the Issue Date to the Maturity Date.
| 2.3 | Purpose and utilization |
| 2.3.1 | The net proceeds of the Bonds shall be employed for general partnership purposes. |
| 3.1 | The Issuer shall apply for listing of the Bonds on Oslo Børs. |
| 3.2 | If the Bonds are listed, the Issuer shall ensure that the Bonds remain listed until they have been discharged in full. |
| 4 | Registration in a Securities Register |
| 4.1 | The Bond Issue and the Bonds shall prior to disbursement be registered in the Securities Register according to the Securities Register Act and the conditions of the Securities Register. |
| 4.2 | The Issuer shall promptly arrange for notification to the Securities Register of any changes in the terms and conditions of this Bond Agreement. The Bond Trustee shall receive a copy of the notification. |
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| 4.3 | The Issuer is responsible for the implementation of correct registration in the Securities Register. The registration may be executed by an agent for the Issuer provided that the agent is qualified according to relevant regulations. |
| 4.4 | The Bonds have not been registered under the US Securities Act, and the Issuer is under no obligation to arrange for registration of the Bonds under the US Securities Act. |
| 5 | Purchase and transfer of Bonds |
| 5.1 | Subject to the restrictions set forth in this Clause 5, the Bonds are freely transferable and may be pledged. |
| 5.2 | Bondholders may be subject to purchase or transfer restrictions with regard to the Bonds, as applicable from time to time under local laws to which a Bondholder may be subject (due e.g. to its nationality, its residency, its registered address, its place(s) for doing business). Each bondholder must ensure compliance with local laws and regulations applicable at own cost and expense. Without limiting the generality of the foregoing: |
Bondholders that are US Persons or located in the United States will not be permitted to transfer the Bonds except (a) subject to an effective registration statement under the US Securities Act, (b) to a person that the Bondholder reasonably believes is a QIB within the meaning of Rule 144A under the US Securities Act that is purchasing for its own account, or the account of another QIB, to whom notice is given that the resale, pledge or other transfer may be made in reliance on Rule 144A, (c) outside the United States in accordance with Regulation S under the US Securities Act in a transaction on the Oslo Børs, and (d) pursuant to an exemption from registration under the US Securities Act provided by Rule 144 thereunder (if available). The Bonds may not be purchased by, or for the benefit of, persons resident in Canada.
| 5.3 | Notwithstanding the above, a Bondholder which has purchased the Bonds in contradiction to mandatory restrictions applicable may nevertheless utilize its voting rights under this Bond Agreement. |
| 6 | Conditions Precedent |
| 6.1 | Disbursement of the net proceeds of the Bonds to the Issuer will be subject to the Bond Trustee having received the following documents, in form and substance satisfactory to it, at least two Business Days prior to the Issue Date: |
| (a) | this Bond Agreement duly executed by all parties thereto; |
| (b) | certified copies of all necessary corporate resolutions of the Issuer to issue the Bonds and execute the Finance Documents to which it is a party; |
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| (c) | a power of attorney from the Issuer to relevant individuals for its execution of the relevant Finance Documents, or extracts from the relevant register or similar documentation evidencing the individuals authorized to sign on behalf of the Issuer; |
| (d) | certified copies of the Certificate of Limited Partnership for the Issuer, evidencing that it is validly existing, and the partnership agreement for the Issuer; |
| (e) | the latest Financial Statements for the Issuer, and the Issuer’s latest Quarterly Financial Report; |
| (f) | confirmation that the requirements set forth in Chapter 7 of the Norwegian Securities Trading Act (implementing the EU prospectus directive (2003/71 EC) concerning prospectuses have been fulfilled or do not apply to the Bond Issue; |
| (g) | to the extent necessary, any public authorisations required for the Bond Issue; |
| (h) | confirmation from the Paying Agent that the Bonds have been registered in the Securities Register; |
| (i) | written confirmation in accordance with Clause 7.3 (if required); |
| (j) | the agreement set forth in Clause 14.2, duly executed; |
| (k) | documentation on the granting of authority to the Bond Trustee as set out in Clause 2.1 and copies of any written documentation made public by the Issuer or the Manager in connection with the Bond Issue; and |
| (l) | legal opinions in a form and content acceptable to the Bond Trustee from local counsel acceptable to the Bond Trustee, confirming inter alia (i) that the Issuer is legally organised and validly existing under its jurisdiction of organisation, (ii) the valid execution by the Issuer of the Finance Documents and the enforceability of the Finance Documents, (iii) that the Issuer has full partnership power and capacity to enter into and perform the duties under the Finance Documents, and (iv) that there are no other consents, approvals, authorisations or orders required by the Issuer from any governmental or other regulatory agencies in the jurisdictions of organisation of the Issuer in connection with the issue and offering of the Bonds and the performance by Issuer of its obligations under the Finance Documents. |
| 6.2 | The Bond Trustee may, in its reasonable opinion, waive the deadline or requirements for documentation as set forth in Clause 6.1. |
| 6.3 | Disbursement of the net proceeds from the Bonds is subject to the Bond Trustee’s written notice to the Issuer, the Manager and the Paying Agent that the documents have been received and that the required conditions precedent are fulfilled or have been waived. |
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| 6.4 | On the Issue Date, subject to receipt of confirmation from the Bond Trustee pursuant to Clause 6.3, the Manager shall make the net proceeds from the Bond Issue available to the Issuer. |
| 7 | Representations and Warranties |
| 7.1 | The Issuer represents and warrants to the Bond Trustee (on behalf of the Bondholders) that: |
It is a limited partnership, duly organized and validly existing under the law of the jurisdiction in which it is organized, and has the power to own its assets and carry on its business as it is being conducted.
(b) Power and authority
It has the power to enter into and perform, and has taken all necessary partnership action to authorise its entry into, performance and delivery of this Bond Agreement and any other Finance Document to which it is a party and the transactions contemplated by those Finance Documents.
(c) Valid, binding and enforceable obligations
This Bond Agreement and any other Finance Document to which it is a party constitute (or will constitute, when executed by the respective parties thereto) legal, valid and binding obligations of the Issuer, enforceable in accordance with their terms, and (save as provided for therein) no further registration, filing, payment of Tax or fees or other formalities are necessary to render the said documents enforceable against the Issuer.
(d) Non-conflict with other obligations
The entry into and performance by the Issuer of the Bond Agreement and any other Finance Document to which it is a party and the transactions contemplated thereby do not and will not conflict with (i) any present law or regulation or present judicial or official order; (ii) its Certificate of Limited Partnership or partnership agreement; or (iii) any document or agreement which is binding on the Issuer or any of its assets.
(e) No Event of Default
No Default exists, and no other circumstances exist which constitute or (with the giving of notice, lapse of time, determination of materiality or the fulfillment of any other applicable condition, or any combination of the foregoing) would constitute a default under any document which is binding on the Issuer or any of its assets, and which would reasonably be expected to have a Material Adverse Effect.
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(f) Authorizations and consents
All authorisations, consents, licenses or approvals of any governmental authorities required for the Issuer in connection with the execution, performance, validity or enforceability of this Bond Agreement or any other Finance Document, and the transactions contemplated thereby, have been obtained and are valid and in full force and effect. All material authorisations, consents, licenses or approvals of any governmental authorities required for the Issuer to carry on its business as presently conducted and as contemplated by this Bond Agreement, have been obtained and are in full force and effect.
No litigation, arbitration or administrative proceeding of or before any court, arbitral body or agency is pending or, to the best of the Issuer’s knowledge, threatened which, if adversely determined, would reasonably be expected to have a Material Adverse Effect.
(h) Financial Statements
The most recently audited Financial Statements and the most recent unaudited Quarterly Financial Reports for the Issuer fairly and accurately represent in all material respects the assets and liabilities and financial condition as at their respective dates, and have been prepared in accordance with GAAP, consistently applied from one year to another.
(i) No undisclosed liabilities
As of the date of the most recent balance sheet included in the Financial Statements and Quarterly Financial Report, the Issuer had no material liabilities, direct or indirect, actual or contingent, that are required by GAAP to be included in such balance sheet and that are not disclosed by or reserved against in the Financial Statements or in the notes thereto.
(j) No Material Adverse Effect
Since the date of the most recent Financial Statements and Quarterly Financial Report, there has been no change in the business, assets or financial condition of the Issuer that would reasonably be expected to have a Material Adverse Effect.
(k) No misleading information
All documents and information which have been provided by the Issuer or with the agreement of the Issuer to the subscribers or the Bond Trustee in connection with this Bond Issue represent the latest publicly available financial information concerning the Group, and there has been no change in the Group’s financial position since the date of the latest Quarterly Financial Report of the Issuer which could reasonably be expected to have a Material Adverse Effect.
(l) Environmental compliance
The Issuer and each Group Company is in compliance with any relevant applicable environmental law or regulation and no circumstances have occurred which would prevent such compliance in a manner which, in each case, has had or would reasonably be expected to have a Material Adverse Effect.
(m) Intellectual property
The Group has valid and good title to (a) its material patents, trade marks, service marks, designs, business names, copyrights, design rights, inventions, confidential information and other intellectual property rights and interests (whether registered or unregistered), and (b) the benefit of all applications and rights to use such assets.
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(n) No withholdings
The Issuer is not required to make any deduction or withholding for or on account of any Taxes levied by the United States, Canada or the Republic of the Marshall Islands, or any political subdivision thereof or Taxing or other authority therein, or any political subdivision or Taxing or other authority in any jurisdiction from or through which the Issuer effects any payments hereunder, from any payment which it may become obliged to make to the Bond Trustee (on behalf of the Bondholders) or the Bondholders under this Bond Agreement; provided, however, that, notwithstanding the foregoing or any other provision in this Agreement to the contrary, the Issuer shall not be liable under this Agreement or have any obligation to indemnify any Bondholder for or with respect to any Taxes that are imposed due to any of the following:
| (i) | the Bondholder has some connection with the Taxing jurisdiction other than merely holding the Bonds or receiving principal or interest payments on the Bonds (such as citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Taxing jurisdiction); |
| (ii) | any Tax imposed on, or measured by, net income. |
(o) Pari passu ranking
The Issuer’s payment obligations under this Bond Agreement or any other Finance Document to which it is a party rank at least pari passu with the claims of its other unsecured and unsubordinated creditors, except for claims which are preferred by bankruptcy, insolvency, liquidation or other similar laws of general application and for other obligations that are mandatorily preferred by law applying to companies generally.
| 7.2 | The representations and warranties set out in Clause 7.1 shall apply for the Issuer and are made on the execution date of this Bond Agreement, and shall be deemed to be repeated on the Issue Date. |
| 7.3 | The Bond Trustee may prior to disbursement require a written statement from the Issuer confirming compliance with Clause 7.1. |
| 7.4 | In the event of misrepresentation, the Issuer shall indemnify the Bond Trustee for any economic losses suffered, both prior to the disbursement of the Bonds, and during the term of the Bonds, as a result of its reliance on the representations and warranties provided by the Issuer herein. |
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| 8 | Status of the Bonds and security |
| 8.1 | The Bonds shall be senior unsecured debt of the Issuer. The Bonds shall rank at least pari passu with all other senior unsecured obligations of the Issuer (save for such claims which are preferred by bankruptcy, insolvency, liquidation or other similar laws of general application and for other obligations that are mandatorily preferred by law) and shall rank ahead of subordinated debt. |
| 8.2 | The Bonds are unsecured. |
| 9 | Interest |
| 9.1 | The Issuer shall pay interest on the aggregate outstanding principal amount of the Bonds from, and including, the Issue Date at the Bond Reference Rate plus the Margin (together the “Floating Rate”). |
| 9.2 | Interest payments shall be made in arrears on the Interest Payment Dates each year; the first Interest Payment Date falls in August 2012. |
| 9.3 | The relevant interest payable amount shall be calculated based on a period from, and including, one Interest Payment Date to, but excluding, the next following applicable Interest Payment Date. |
| 9.4 | The day count fraction in respect of the calculation of the payable interest amount shall be “Actual/360”, which refers to the actual number of days in the calculation period for which interest is payable divided by 360. |
| 9.5 | The applicable Floating Rate on the Bonds is set/reset on each Interest Payment Date by the Bond Trustee commencing on the Interest Payment Date at the beginning of the relevant calculation period. |
When the interest rate is set for the first time and on subsequent interest rate resets, the next Interest Payment Date, the interest rate applicable up to the next Interest Payment Date and the actual number of calendar days up to that date shall be determined by the Bond Trustee and promptly notified to the Bondholders, the Issuer, the Paying Agent, and if the Bonds are listed, the Exchange.
| 9.6 | The payable interest amount per Bond for a relevant calculation period shall be calculated as follows: |
| Interest | = | Face | x | Floating | x | Floating Rate |
| Amount | Value | Rate | Day Count Fraction |
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| 10 | Maturity of the Bonds and Change of Control |
| 10.1 | Maturity |
The Bonds shall mature in full on the Maturity Date, and shall be repaid at par (100%) by the Issuer.
| 10.2 | Change of control |
| 10.2.1 | Upon the occurrence of a Change of Control Event each Bondholder shall have a right of pre-payment (a “Put Option” ) of its Bonds at a price of 100 % of par plus accrued and unpaid interest. |
| 10.2.2 | The Put Option must be exercised within 60 days after the Issuer has given notification to the Bond Trustee and the Bondholders of a Change of Control Event. Such notification shall be given as soon as possible after a Change of Control Event has taken place. |
The Put Option may be exercised by the Bondholders by giving written, irrevocable notice of the request to its Account Manager. The Account Manager shall notify the Paying Agent of the pre-payment request. The settlement date of the Put Option shall be fifteen—15—Business Days following the date when the Paying Agent received the repayment request.
| 10.2.3 | On the settlement date of the Put Option, the Issuer shall pay to each of the Bondholders holding Bonds to be pre-paid, the principal amount of each such Bond and any unpaid interest accrued up to (but not including) the settlement date. |
| 11 | Payments |
| 11.1 | Payment mechanics |
| 11.1.1 | The Issuer shall pay all amounts due to the Bondholders under the Bonds and this Bond Agreement by crediting the bank account nominated by each Bondholder in connection with its securities account in the Securities Register. |
| 11.1.2 | Payment shall be considered to have been made once the amount has been credited to the bank which holds the bank account nominated by the Bondholder in question, but if the paying bank and the receiving bank are the same, payment shall be considered to have been made once the amount has been credited to the bank account nominated by the Bondholder in question, see however Clause 11.2. |
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| 11.2 | Currency |
| 11.2.1 | If the Bonds are denominated in currencies other than NOK, each Bondholder must provide the Paying Agent (either directly or through its Account Manager) with specific payment instructions, including foreign exchange bank account details. Depending on the currency exchange settlement agreements between the Bondholders’ bank and the Paying Agent, cash settlement may be delayed, in which case no default interest or other penalty shall accrue for the benefit of the Bondholders. |
| 11.2.2 | Except as otherwise expressly provided, all amounts payable under this Bond Agreement and any other Finance Document shall be payable in the same currency as the Bonds are denominated in. If, however, the Bondholder has not given instruction as set out in Clause 11.2.1, within 5 Business Days prior to a Payment Date, the cash settlement will be exchanged into NOK and credited to the NOK bank account registered with the Bondholders account in the Securities Register. |
| 11.2.3 | Amounts payable in respect of costs, expenses, Taxes and other liabilities shall be payable in the currency in which they are incurred. |
| 11.3 | Set-off and counterclaims |
| 11.3.1 | The Issuer may apply or perform any counterclaims or set-off against any payment obligations pursuant to this Bond Agreement or any other Finance Document. |
| 11.4 | Interest in the event of late payment |
| 11.4.1 | In the event that payment of interest or principal is not made on the relevant Payment Date, the unpaid amount shall bear interest from the Payment Date at an interest rate equivalent to the interest rate according to Clause 9 plus 5.00 percentage points. |
| 11.4.2 | The interest charged under this Clause 11.4 shall be added to the defaulted amount on each respective Interest Payment Date relating thereto until the defaulted amount has been repaid in full. |
| 11.4.3 | The unpaid amounts shall bear interest as stated above until payment is made, whether or not the Bonds are declared to be in default pursuant to Clause 15.1 (a), cf. Clauses 15.2 - 15.4. |
| 11.5 | Irregular payments |
| 11.5.1 | In case of interest payments made on a date other than the regularly scheduled payment date, the Bond Trustee may instruct the Issuer or Bondholders of other payment mechanisms than described in Clause 11.1 or 11.2 above. The Bond Trustee may also obtain payment information regarding Bondholders’ accounts from the Securities Register or Account Managers. |
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| 12 | Issuer’s acquisition of Bonds |
| 12.1 | The Issuer has the right to acquire and own Bonds (Issuer’s Bonds). The Issuer’s Bonds may at the Issuer’s discretion be retained by the Issuer, sold or discharged. |
| 13 | Covenants |
| 13.1 | General |
| 13.1.1 | The Issuer has undertaken the covenants in this Clause 13 to the Bond Trustee (on behalf of the Bondholders), as further stated below. |
| 13.1.2 | Subject to Section 18.2, the covenants in this Clause 13 shall remain in force from the date of this Bond Agreement and until such time that no amounts are outstanding under this Bond Agreement and any other Finance Document, unless the Bond Trustee (or Bondholders by action at a Bondholders Meeting, as the case may be), has agreed in writing to waive any covenant, and then only to the extent of such waiver, and on the terms and conditions set forth in such waiver. |
| 13.2 | Information Covenants |
| 13.2.1 | The Issuer shall |
| (a) | without being requested to do so, immediately inform the Bond Trustee of any Default or Event of Default as well as of any circumstances which the Issuer understands would reasonably be expected to lead to an Event of Default; |
| (b) | without being requested to do so, inform the Bond Trustee of any other event which could reasonably be expected to have a Material Adverse Effect; |
| (c) | without being requested to do so, inform the Bond Trustee if the Issuer intends to sell or dispose of all or a substantial part of its assets or operations, or change the nature of its business; |
| (d) | without being requested to do so, produce Financial Statements annually and Quarterly Financial Reports quarterly and make them available on its website in the English language as soon as they become available, and not later than 120 days after the end of the financial year and 60 days after the end of the relevant quarter, in each case subject to any exemption, waiver or extension granted by the Exchange or as permitted by any amendment to the Exchange listing rules; |
| (e) | at the request of the Bond Trustee, report the balance of the Issuer’s Bonds; |
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| (f) | without being requested to do so, send a copy to the Bond Trustee of its notices to the Exchange (if listed) which are of relevance for the Issuer’s liabilities pursuant to this Bond Agreement; |
| (g) | without being requested to do so, inform the Bond Trustee of changes in the registration of the Bonds in the Securities Register; and |
| (h) | within a reasonable time, provide such information about the Issuer’s financial condition as the Bond Trustee may reasonably request. |
| 13.2.2 | The Issuer shall at the request of the Bond Trustee provide the documents and information necessary to maintain the listing and quotation of the Bonds on the Exchange (if listed) and to otherwise enable the Bond Trustee to carry out its rights and duties pursuant to this Bond Agreement and the other Finance Documents, as well as applicable laws and regulations. |
| 13.2.3 | The Issuer shall in connection with the issue of its Financial Statements and Quarterly Reports under Clause 13.2.l (d), confirm to the Bond Trustee in writing the Issuer’s compliance with the covenants in Clause 13. Such confirmation shall be undertaken in a compliance certificate, substantially in the format set out in Attachment 1 hereto, signed by the Chief Executive Officer or Chief Financial Officer of the Issuer. In the event of non-compliance, the compliance certificate shall describe the non-compliance, the reasons therefore as well as the steps which the Issuer has taken and will take in order to rectify the non-compliance. |
| 13.3 | General Covenants |
(a) Pari passu ranking
The Issuer’s obligations under this Bond Agreement and any other Finance Document shall at all times rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors save for those whose claims that are preferred solely by any bankruptcy, insolvency, liquidation or other similar laws of general application and for other obligations that are mandatorily preferred by law applying to companies generally.
The Issuer shall not, and shall ensure that no Group Company shall, carry out any merger or other business combination or corporate reorganization involving consolidating the assets and obligations of any of the Group Companies with any other companies or entities not being a member of the Group if such transaction would have a Material Adverse Effect. The Issuer shall notify the Bond Trustee of any such transaction, providing relevant details thereof, as well as, if applicable, its reasons for believing that the proposed transaction would not have a Material Adverse Effect.
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The Issuer shall not, and shall ensure that no Group Company shall, carry out any de-merger or other corporate reorganization involving splitting any Group Company into two or more separate companies or entities, if such transaction would have a Material Adverse Effect. The Issuer shall notify the Bond Trustee of any such transaction, providing relevant details thereof, as well as, if applicable, its reasons for believing that the proposed transaction would not have a Material Adverse Effect.
| (d) | Continuation of business |
| (i) | The Issuer shall not, and shall ensure that no Group Companies shall cease to carry out the general nature or scope of its business, if such cessation would have a Material Adverse Effect. |
| (ii) | The Issuer shall procure that no material change is made to the general nature or scope of the business of the Group from that carried on at the date of this Bond Agreement, or as contemplated by this Bond Agreement. |
| (iii) | The General Partner shall at all times during the tenor of the Bonds maintain its interest as a general partner of the Issuer. |
| (e) | Disposal of business |
The Issuer shall not, and shall ensure that no Group Companies shall, be entitled to sell or otherwise dispose of all or a substantial part of the Group’s aggregate assets or operations if such transaction would have a Material Adverse Effect.
| 13.4 | Corporate and operational matters |
(a) Related party transactions
The Issuer shall not engage in, or permit any member of the Group to engage in, directly or indirectly, any transaction with any affiliate of Teekay Corporation that is not a Group Company (without limitation, the purchase, sale or exchange of assets or the rendering of any service), except (i) pursuant to existing agreements and arrangements with such affiliates or (ii) transactions that are (A) approved by a majority of the members of the conflicts committee of the board of directors of the General Partner, (B) on terms no less favorable to the Issuer or such Group member than those generally being provided to or available from unrelated third parties, (C) fair and reasonable to the Issuer or such Group member, taking into account the totality of the relationships between the Group and the other parties involved (including other transactions that may be particularly favorable or advantageous to the Group) or (D) immaterial in amount or significance to the Issuer or the Group.
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(b) Corporate status
The Issuer shall not, and shall ensure that no Group Company changes its type of organization or jurisdiction of organization unless such change in type or jurisdiction of organization would not have a Material Adverse Effect. Notwithstanding the foregoing, no change shall be made to the Issuer’s type of organization or jurisdiction of organization or incorporation without prior delivery to the Bond Trustee of legal opinions in a form and content acceptable to the Bond Trustee from local counsel acceptable to the Bond Trustee, confirming inter alia that (i) the Issuer is legally organized or incorporated (as applicable) and validly existing under their new jurisdictions of organization or incorporation, (ii) the execution by the Issuer of the Finance Documents and the enforceability of the Finance Documents will remain valid and enforceable under the new jurisdiction of organization or incorporation, (iii) the Issuer has full partnership or corporate power and capacity to enter into and perform the duties under the Finance Documents under its new jurisdiction of organization or incorporation, and (iv) there are no other consents, approvals, authorisations or orders that have not been obtained and are required by the Issuer with respect to such change of its type of organization or jurisdiction of organization from any governmental or other regulatory agencies in the jurisdictions of organization or incorporation of the Issuer in connection with the Bonds and the performance by the Issuer of its obligations under the Finance Documents.
(c) Compliance with laws
The Issuer shall (and shall ensure that all Group Companies shall) comply in all material respects with all laws and regulations it or they may be subject to from time to time (including any environmental laws and regulations).
The Issuer shall, promptly upon becoming aware of them, send the Bond Trustee such relevant details of any:
| (i) | material litigations, arbitrations or administrative proceedings which have been started by or against any Group Company; and |
| (ii) | other events which have occurred which have had or would reasonably be expected to have a Material Adverse Effect, as the Bond Trustee may reasonably request. |
| 13.5 | Financial Covenants and listing |
(a) Free Liquidity
The Issuer shall, at any time during the term of the Bonds, ensure that the Group on a consolidated basis maintains Free Liquidity of not less than USD 35,000,000.
(b) Net Debt Ratio
The Issuer shall, at any time during the term of the Bonds, ensure that the Group on a consolidated basis maintains a Net Debt Ratio of no more than 80%.
(c) Tangible Net Worth
The Issuer shall, at any time during the term of the Bonds, ensure that the Group on a consolidated basis maintains a Tangible Net Worth of at least USD 400,000,000.
(d) Listing of Issuer’s common units
The Issuer shall ensure that the Issuer’s common units remain listed on the New York Stock Exchange or another recognized stock exchange.
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| 14 | Fees and expenses |
| 14.1 | The Issuer shall cover all its own expenses in connection with this Bond Agreement and fulfillment of its obligations under this Bond Agreement, including preparation of this Bond Agreement, preparation of the Finance Documents and any registration or notifications relating thereto, listing of the Bonds on the Exchange (if applicable), and the registration and administration of the Bonds in the Securities Register. |
| 14.2 | The expenses and fees payable to the Bond Trustee shall be paid by the Issuer and are set forth in a separate agreement between the Issuer and the Bond Trustee. Fees and expenses payable to the Bond Trustee which, due to the Issuer’s insolvency or similar, are not reimbursed in any other way may be covered by making an equivalent reduction in the payments to the Bondholders. |
| 14.3 | The Issuer shall cover all public fees in connection with the Bonds and the Finance Documents; provided, however, that any public fees levied on the trade of Bonds in the secondary market shall be paid by the Bondholders, unless otherwise provided by law or regulation, and the Issuer is not responsible for reimbursing any such fees. |
| 14.4 | In addition to the fee due to the Bond Trustee pursuant to Clause 14.2 and normal expenses pursuant to Clauses 14.1 and 14.3, the Issuer shall, on demand, cover extraordinary expenses incurred by the Bond Trustee in connection with the Bonds, as determined in a separate agreement between the Issuer and the Bond Trustee. |
| 14.5 | The Issuer is responsible for withholding any withholding tax imposed by applicable law on any payments to the Bondholders. |
| 15 | Events of Default |