Exhibit 5.3
[Letterhead of Noble & Scheidecker]
(1) Teekay LNG Partners L.P.
c/o Bayside House, Bayside Executive Park
West Bay Street and Blake Road
P.O. Box AP-59212
Nassau, Commonwealth of the Bahamas
(2) Teekay Luxembourg S.a.r.l.
7, rue Robert Stumper
Luxembourg
Grand-Duchy of Luxembourg
The "ADRESSEES"
Luxembourg, September 29, 2006
Dear Sirs,
RE: REGISTRATION STATEMENT ON FORM F-3
I. INTRODUCTION
We have acted as special counsel as to matters of the law of the Grand-Duchy of
Luxembourg ("LUXEMBOURG") for Teekay Luxembourg S.a.r.l. ("LUXCO") in connection
with the preparation and filing with the U.S. Securities and Exchange Commission
(the "COMMISSION") pursuant to the U.S. Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the rules and regulations promulgated thereunder
("RULES") of a registration statement on Form F-3 (such registration statement
and any additional registration statement filed pursuant to Rule 462(b) is
referred to as the "REGISTRATION STATEMENT"), for the registration of the sale
from time to time of up to $400,000,000 aggregate offering price (or any such
further aggregate offering price as may be registered pursuant to Rule 462(b))
of:
(a) common units (the "UNITS") representing limited partnership
interests in Teekay LNG Partners L.P. (the "PARTNERSHIP");
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(b) debt securities of the Partnership, which may be (i) co-issued by
Teekay LNG Finance Corp. and (ii) either senior debt securities
("SENIOR DEBT SECURITIES") or subordinated debt securities
("SUBORDINATED DEBT SECURITIES" and, together with the Senior Debt
Securities, collectively the "DEBT SECURITIES"); and
(c) guarantees (the "GUARANTEES" and, together with the Units and the
Debt Securities, collectively the "SECURITIES") of the Debt
Securities by one or more subsidiaries of the Partnership, including
Luxco.
We understand that the Securities will be sold or delivered from time to time as
set forth in the Registration Statement, the prospectus contained therein (the
"PROSPECTUS") and supplements to the Prospectus (the "PROSPECTUS SUPPLEMENTS").
We understand that the Senior Debt Securities will be issued in one or more
series pursuant to an indenture (together with any supplemental indentures, the
"SENIOR INDENTURE") to be entered into between the Partnership and a trustee
thereunder, in substantially the form filed as an exhibit to the Registration
Statement. We understand that the Subordinated Debt Securities will be issued in
one or more series pursuant to a subordinated indenture (together with any
supplemental indentures, the "SUBORDINATED Indenture" and together with the
Senior Indenture collectively the "INDENTURES") to be entered into between the
Partnership and a trustee thereto, in substantially the form filed as an exhibit
to the Registration Statement.
II. SCOPE OF THE LEGAL OPINION
a) This legal opinion is strictly confined to the specific matters of
Luxembourg law and has been prepared without considering the
implications of any laws of any jurisdictions other than Luxembourg
and, accordingly, we express no opinion with regard to any systems
of law other than the laws of Luxembourg (including, without however
limitation, US laws).
b) This legal opinion is strictly limited to the matters stated herein
and may not be read as extending by implication to any matters not
specifically referred to. Where an assumption is stated to be made
in this legal opinion, we have not made an investigation with
respect to the matters that are the subject of such assumption.
c) We have, for the purpose of this legal opinion, solely examined
provisions of section XII (Guarantee) of the Indentures, with the
exclusion of any other provisions of the Indentures. In particular,
without however limitation, we have not examined nor reviewed the
documents or agreements mentioned or referred to in the Transaction
Documents (as such term is defined in Schedule 1 hereto).
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d) We do not opine in this legal opinion on the enforceability of any
of the provisions of the Indentures other than the binding nature of
the Guarantees on Luxco.
e) We have not examined and express therein no opinion on any matter
relating to any contractual obligation, by which Luxco may be bound
other than those contained in Section XII of the Indentures.
f) The declarations made in this legal opinion are stated and are only
valid as at the date hereof.
g) We shall have no duty to inform the Addressees of any changes in
Luxembourg law, in the legal status of Luxco or any other
circumstance, occurring after the date of this legal opinion and
which affect the matters addressed herein.
h) We are not responsible for (a) investigating and verifying the
accuracy of the statements of fact and the reasonableness of (i) any
statements of opinion, (ii) intention and (iii) representations and
warranties contained in the Transaction Documents, (b) verifying
that no material facts or contractual provisions have been omitted
therefrom and (c) verifying whether the parties thereto (including
Luxco) or any of them have complied, or will comply with them and
with the terms and conditions of any obligations binding upon them.
i) In this legal opinion, unless otherwise specified, the terms "law",
"Laws" "legislation" and "regulation" and all other similar terms
refer to all laws and regulations that are applicable within the
territory of Luxembourg.
j) We do not give any opinion with respect to, or regarding, the
compliance of Luxco with Luxembourg tax law.
III. STATEMENTS OF LEGAL OPINION
On the basis of and subject to the assumptions and qualifications set out below,
we are of the opinion that (a) upon the due execution and delivery of the
applicable Indenture by the parties thereto substantially in the form examined
by us and (b) when (i) the specific terms of a particular Debt Security have
been duly authorized by the Partnership and, if applicable, Teekay LNG Finance
Corp., and established in accordance with the applicable Indenture, (ii) any
related Guarantee by Luxco has been duly authorized thereby and (c) such Debt
Security and any such Guarantee have been duly executed, authenticated, issued
for value and delivered in accordance with the applicable Indenture, such
Guarantee will be a binding obligation of Luxco.
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IV. ASSUMPTIONS
In rendering this legal opinion, we have, without verification or other enquiry,
assumed:
a) The genuineness of all signatures, the authenticity of all documents
submitted to us as originals, and the conformity with the original
documents of all documents submitted to us as photocopies.
b) That the Indentures have been duly and validly executed and
delivered by the respective parties thereto (including Luxco)
substantially in the form examined by us.
c) That none of the Transaction Documents has been amended,
supplemented, replaced or varied, nor has been revoked as at the
date hereof.
d) That each of the parties to the Indentures (including Luxco) is a
validly existing entity with the capacity and power and authority to
enter into, execute, deliver and perform each of the Indentures and
all obligations thereunder, in compliance with all requisite
corporate or similar action.
e) That all the necessary corporate and other actions have been taken
in order to allow each of the parties to the Indentures (including
Luxco) to validly execute and deliver the Indentures and to perform
its respective obligations thereunder.
f) That any consents, approvals, registrations, licenses or other
actions by or with any governmental authority required to be
obtained or made by the parties (including Luxco) in any
jurisdiction (including Luxembourg) in order to execute, deliver or
perform the Indentures has been or will be obtained or made at the
appropriate times.
g) That the manner of execution of the Indentures is valid and
effective under their respective governing laws, and under any other
law which may be applicable according to the place of execution
(including Luxembourg laws).
h) That the obligations created under or pursuant to the Indentures
constitute legal, valid, binding obligations of each of the parties
thereto (excluding Luxco with respect to its Guarantee), enforceable
against the respective parties thereto (excluding Luxco with respect
to its Guarantee) in accordance with their terms, under all
applicable laws (including Luxembourg laws), and in particular,
without however limitation, under their respective governing laws.
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i) That the obligations created under or pursuant to the Indentures
constitute legal, valid, binding obligations of Luxco, enforceable
against Luxco in accordance with their terms, under all applicable
laws (excluding Luxembourg laws), and in particular, without however
limitation, under their respective governing laws.
j) That each of the parties to the Transaction Documents (including
Luxco) is not or will not be, by reason of the execution of the
transactions contemplated by the Transaction Documents, in breach of
any of its obligations under any previous contractual arrangements
to which it is a party.
k) All contractual obligations created under or pursuant to the
Indentures are executed and will be performed in good faith by the
parties thereto (including Luxco) and without committing any fraud
or cheating.
l) That no petition has been filed in with a court for the opening of
winding-up (in the meaning of voluntary or not liquidation and
dissolution), bankruptcy, suspension of payments or similar
proceedings against Luxco; that Luxco has not been granted a
suspension of payments or declared bankrupt or been subject to any
similar procedure (which includes, without however limitation,
controlled management ("gestion controlee"), moratorium of payments
("sursis de paiement") and composition ("concordat preventif de
faillite") procedures) and that Luxco is not subject to any
liquidation proceedings.
m) That the Guarantees are of an independent and unconditional nature
and would therefore qualify as "garanties a premiere demande" under
Luxembourg laws.
n) That the real place of effective management of Luxco is not located
anywhere else than in Luxembourg.
o) That the entry into and the execution by Luxco of the Indentures as
well as the performance of its obligations thereunder are in the
best interest of Luxco.
p) That the performance and observance of the provisions of the
governing laws of the Indentures are not contrary to any mandatory
rules ("lois de police") or to the international public order rules
("ordre public international") of Luxembourg.
q) That the Registration Statement, and any amendments or supplements
thereto (including any necessary post-effective amendments), shall
have become effective under the Securities Act.
r) That all parties to the relevant indenture shall have complied with
the terms and conditions thereof regarding the creation,
authentication and delivery of any supplemental indenture to such
indenture.
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s) That a Prospectus Supplement shall have been prepared and filed with
the Commission describing the Securities offered thereby.
t) That all Securities shall be issued and sold in compliance with
applicable federal, state and foreign securities laws and in the
manner stated in the Registration Statement and the appropriate
Prospectus Supplement.
u) That a definitive purchase, underwriting or similar agreement with
respect to any Securities offered will have been duly authorized and
validly executed and delivered by the parties thereto.
v) That any Securities issuable upon conversion, exchange or exercise
of any Security being offered will be duly authorized, created and,
if appropriate, reserved for issuance upon such conversion, exchange
or exercise.
V. QUALIFICATIONS
This legal opinion is subject to the following qualifications:
a) In this legal opinion, some Luxembourg legal concepts are expressed
in English terms and not in their original French terms. Terms and
expressions of law and of legal concepts as used in this legal
opinion have the meaning attributed to them under the laws of
Luxembourg and this legal opinion should be read and understood
accordingly. The concepts concerned may not be identical to the
concepts described by the same English terms as they exist under the
laws of other jurisdictions. This legal opinion may, therefore, only
be relied upon under the express condition that any issue of
interpretation or liability arising hereunder will be interpreted as
would be by a Luxembourg Court.
b) Any enforcement of an obligation against Luxco would be subject to
any applicable bankruptcy, insolvency and any other similar
Luxembourg laws relating to or affecting the enforcement or
protection of creditors rights and remedies.
c) Payments made, as well as other transactions (listed in the
pertinent section of the Luxembourg Code of Commerce) concluded or
performed, during the so-called suspect period ("periode suspecte")
which is fixed by the Luxembourg court and dates back (not more
than) 6 months as from the date on which the Luxembourg court
formally adjudicates a person bankrupt, and, as for specific
payments and transactions, during an additional period of ten days
before the commencement of such period, are subject to cancellation
by the Luxembourg court.
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In particular,
i) Article 445 of the Code of Commerce sets out that, during the
suspect period and an additional period of ten days preceding
the suspect period fixed by the court, specified transactions
(e.g., the granting of a security interest for past debts; the
payment of debts which have not fallen due, whether payment is
made in cash or by way of assignment, sale, set-off or by any
other means; the payment of debts which have fallen due by any
other means than in cash or by bill of exchange; the sale of
assets without consideration or for materially inadequate
consideration) must be set aside or declared null and void, as
the case may be, if so requested by the insolvency receiver;
ii) Article 446 of the Code of Commerce states that payments made
for matured debts as well as other transactions concluded for
consideration during the suspect period are subject to
cancellation by the court upon proceedings instituted by the
insolvency receiver if they were concluded with the knowledge
by such parties having received such payments or having
concluded transactions with the bankrupt, of the bankrupt's
cessation of payments; and
iii) Regardless of the suspect period, article 448 of the Code of
Commerce and article 1167 of the civil code (actio pauliana)
give the creditor the right to challenge any fraudulent
payments and transactions made prior to the bankruptcy,
without limitation of time.
d) We do not express any opinion on the enforceability of provisions
that provide for a postponement of the rights of Luxco that would be
contained in the Indentures against a duly appointed receiver
("curateur") of Luxco.
e) We express no opinion as to the availability under Luxembourg law or
before a Luxembourg court of remedies other than those culminating
in a judgment for the payment of money. To this extent, the term
"enforceable", as used hereinabove, means that the obligations are
of a type which the Luxembourg courts would not oppose to enforce
(except as otherwise qualified in this opinion), but does not mean
that those obligations will necessarily be enforced in all
circumstances in accordance with their terms. In particular (i)
remedies (such as specific performance or injunctive relief) may not
be available to persons seeking to enforce provisions of an
agreement and (ii) enforcement of an obligation may be invalidated
on the grounds of fraud, lack of consent (mistake, duress,
misrepresentation), illegal consideration, uncertainty of the
object, incapacity and force majeure.
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f) In respect of obligations of payment Luxembourg courts have power,
under article 1244 of the Luxembourg Civil Code, to postpone or
spread over time the payment of due sums.
g) We express no opinion as to whether any provision conferring a right
of set-off or similar right would be effective against a bankruptcy
receiver, liquidator or creditor.
h) An obligation may be invalidated on the grounds of fraud, lack of
consent (mistake, duress, misrepresentation), illegal consideration,
uncertainty of the object, incapacity and force majeure.
i) With respect to the provisions providing for a subordination of a
debt, there is, to our knowledge, no Luxembourg case law or legal
doctrine on the validity and enforceability (under Luxembourg law)
thereof. It is our opinion that Luxembourg courts should admit the
validity and enforceability of such provisions establishing
contractual arrangements to the extent that they do not grant to a
particular creditor a better rank in the distribution of the
debtor's assets by impairing the rights of the other creditors,
unless said creditors have expressly agreed to their rights being
impaired. The principle of pari passu treatment of creditors should
not be construed so as to prohibit one or more creditors to limit,
or renounce their rights in the sense that they dispose of their own
rights without altering other creditors' rights.
j) The opinion set forth above is valid, subject to the qualification
that the granting of such Guarantees by Luxco does not constitute an
abuse of company assets (abus des biens sociaux) pursuant to Article
171-1 of the Luxembourg Company Law (as amended).
We are not aware of any Luxembourg precedent appreciating the said
notion of abuse of company assets, in the context of a company
belonging to a group of companies.
The company's interests in the meaning of the aforesaid Article
171-1 is construed on a case by case basis on which we are unable to
express an opinion as a matter of law.
As far as guarantees are concerned, one of the element that would
presumably be taken into account when determining whether or not the
granting of a guarantee is in a company's interest is whether or not
the said guarantee is in line or in adequacy with that companies'
financial capabilities.
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In certain circumstances, Luxembourg courts may declare null and
void agreements when the violation of the corporate interest is
combined with particular elements, including a fraudulent collusion
or an abuse of majority of the shareholders.
k) Provided that the relevant trust falls within the scope of The Hague
Convention of 1 July 1985 on the law applicable to trusts and their
recognition, Luxembourg courts will recognize trusts in accordance
with the provisions of that Convention.
l) We express no opinion on recognition by Luxembourg courts of any
judgment rendered by a foreign court (including without limitation
any judgment rendered by a US court) as well as on enforcement in
Luxembourg of judgments rendered by foreign courts (including
without limitations US courts).
m) No opinion is expressed on any tax consequences of the execution of
the Indentures.
VII. CONSENT
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the references to our firm in the Prospectus. In giving
this consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or
related Rules nor do we admit that we are experts with respect to any part
of the Registration Statement within the meaning of the term "expert" as
used in the Securities Act or related Rules.
VIII. APPLICABLE LAW AND JURISDICTION
As stated in paragraph II.a), this legal opinion herein is exclusively based
upon, governed by and shall be construed in accordance with the laws of
Luxembourg effective on the date hereof.
Luxembourg courts shall have exclusive jurisdiction to settle any dispute,
proceeding, suit or action that may arise out or be in connection with this
legal opinion. Yours very truly,
/s/ Marie-Beatrice Noble /s/ Jean-Francois Trapp
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Marie-Beatrice Noble Jean-Francois Trapp
Avocat a la Cour Avocat a la Cour
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SCHEDULE 1
LIST OF DOCUMENTS
1 the Registration Statement and the Prospectus;
2 The form of Subordinated Indenture to be filed as an exhibit to the
Registration Statement; and
3 The form of Senior Indenture to be filed as an exhibit to the Registration
Statement.
Documents listed under points 1, 2 and 3 above are collectively referred to as
the "TRANSACTION DOCUMENTS".
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